By: Maddy Rametta
What many don’t realize when applying for a visa or living on visa status, is that many small criminal charges, and even non-criminal traffic charges in some cases, can keep an individual from obtaining or keeping a visa. Convictions, and even an arrest without a conviction in some cases, can lead to inadmissibility or removability. Inadmissibility is defined as not being allowed to gain admission to the United States. Admission into the United States does not necessarily mean physical admittance or entering the country. Admission generally means being granted a visa or permanent residence, commonly known as having a green card. Deportability or removability is when an individual may be in lawful immigration status but has done something that makes them deportable or removable from the United States.
When visa officers are conducting interviews and background checks, they often look for three types of crimes: aggravated felonies, illegal drug involvement, and crimes involving moral turpitude. Though during these interviews, it may seem best to keep these past crimes to yourself, it is highly recommended to be honest and explain each individual circumstance. In fact, lying about past crimes on an immigration form can cause the sought after benefit to be denied. Individuals and families planning to immigrate can be affected by repeat crimes that result in felonies, and small instances of arrest or conviction can end up preventing a visa from being obtained or kept.
Aggravated felonies encompass more common crimes like DUIs (driving under the influence), solicitation of a prostitute, or aggravated assault, but also include the more serious crimes such as murder and sexual abuse. When looking at aggravated felonies, it is important for visa officers to understand the nature of the crime, which will help make their decision clearer. For instance, many may not be aware that motor vehicle accidents involving personal injuries or failure to stop can be categorized as aggravated felonies. Felony battery, aggravated battery, and aggravated stalking are all considered aggravated felonies at the discretion of the visa officer. Kidnapping, indecent exposure, theft, forgery, and most drug charges are considered aggravated felonies.
These crimes typically lead to inadmissibility and deportation, even with the slight chance of relief from removal or prosecutorial discretion. Each of these circumstances is very rare, and at the discretion of each individual visa officer. With many of these crimes, it is also important that an individual does not have prior convictions of anything related to firearms or deadly weapons. The consequences of these crimes hinge more on the circumstance of the crime, not as much the crime itself. A crime can be considered an aggravated felony for immigration purposes if a sentence of a year or more is given.
Illegal drug involvement is another group of crimes that usually lead to deportation or inadmissibility. In immigration law, drug involvement encompasses drug trafficking, personal use conviction, and possession of controlled substances convictions. Possessing less than 20 grams of marijuana, for example, is often not considered an aggravated felony or a crime involving moral turpitude, and these crimes are more likely to be excused with a waiver of inadmissibility. However, these waivers are rare, and most other drug related crimes, such as selling manufacturing, or delivering cocaine, cannabis, and amphetamines, are considered both aggravated felonies and crimes involving moral turpitude. These crimes will lead almost directly to deportation or inadmissibility. Committing these drug-related crimes within range of schools, childcare centers, universities, public housing facilities, or religious buildings will also lead to harsher convictions and inability to attain a waiver of inadmissibility.
Crimes Involving Moral Turpitude
Visa officers will also look for crimes involving moral turpitude, or CIMT. Moral turpitude is defined as wicked, deviant behavior constituting immoral, unethical, or unjust departure from ordinary social standards such that it would shock a community. Many of the aforementioned crimes fall under the umbrella of CIMT, such as murder, fraud, aggravated assault, robbery, and nearly every drug related crime above 30 grams. Misdemeanors can often lead to deportation or inadmissibility, especially those considered CIMT. A crime that is considered malicious or with evil intent can lead to deportation or inadmissibility. These decisions are also based on precedent set by similar cases prior to each conviction.
What should I do if I am arrested?
Even if you are not convicted of a crime, as soon as you have been read your Miranda rights and arrested, it is important to find an immigration attorney as well as a criminal attorney that is right for you and educate yourself on your individual circumstance. Even if you are not actually convicted or plead guilty in criminal court, statements or decisions made by you or your criminal attorney in your criminal case can create a “conviction” in the eyes of immigration. Each individual case is controlled by the law, and the law is constantly evolving. Depending on the state you live in, certain crimes may be punished more seriously, and repetition of the same, smaller scale crimes can lead to felony punishment, and therefore inadmissibility or deportation.
If you have any questions or need any help with criminal charges or arrests affecting your immigration status, do not hesitate to contact the Law Firm of Gian-Franco Melendez, LLC to speak with an experienced immigration attorney about your options.