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Criminal Law Issues Impede Green Card Applicants

As discussed in a previous blog, an otherwise eligible immigrant’s application to become a Lawful Permanent Resident (LPR) can be denied by the U.S. Citizenship and Immigration Services for several reasons. Under the Immigration and Nationality Act § 212, there are multiple grounds for inadmissibility, including criminal grounds. Even after an individual acquires LPR status, the grounds of criminal inadmissibility can be a basis for initiating removal proceedings after traveling abroad. If an applicant is denied a green card, or an individual who already holds one is later determined inadmissible, there are waivers and exceptions which, if granted, allow for LPR status despite the inadmissibility ground.

To determine if an individual may meet inadmissibility grounds based on criminal activity, a background check is performed to search for any convictions or admissions to certain crimes. There are several different criminal grounds that will trigger inadmissibility. First, a conviction for a crime that involves moral turpitude (CIMT).  While there isn’t a precise definition of CIMT, generally theft offense, fraud offenses, violent acts and sex crimes will fit that category. There is always litigation on what is and what isn’t a CIMT. What’s more, an admission that does not result in a conviction can still be sufficient to bar an individual if the main elements of a crime falling under this category are fulfilled. Some crimes that fall under this category include murder, robbery, aggravated assault, and kidnapping. There are only two exceptions to this ground for inadmissibility: when the crime was committed when the applicant was under 18 years of age and more than 5 years have passed since release from jail, and when the criminal activity included only one offense which had a maximum penalty of no more than a year, and the actual sentence did not exceed 6 months.

Secondly, convictions for crimes not involving moral turpitude are also relevant when it comes to LPR status. If an individual is convicted of more than one crime, if the sentences imposed combine to equal 5 years or more, the convictions can serve as an inadmissibility ground. Additionally, any crime involving a controlled substance, drug trafficking, smuggling, or prostitution and commercialized vice will act as a bar even though the crime may not involve moral turpitude.

Those who meet these inadmissibility grounds may possibly fall into the exceptions and be able to petition for a waiver. In addition to the two exceptions discussed above, there are limited instances when waivers are acceptable for criminal grounds of inadmissibility. These waivers are discretionary, and focus on the status of the individual instead of on the crime. The first waiver is for a single prostitution offense, or a conviction that is more than 15 years old. The second waiver is for an individual who is a child, parent, or spouse of an American citizen or LPR. For this waiver, the applicant must demonstrate extreme hardship if the waiver were to be denied. For these waivers, there are individuals who will be excluded such as those convicted of crimes involving torture and murder, those convicted of aggregate felonies, and those who have not resided in America for at least 7 years.

If you want to apply for a green card, or have other immigration issues, the assistance of an experienced immigration attorney can help protect your legal rights. If you are seeking help on immigration matters or would like to apply for a green card, call the experienced attorneys at Bretz & Coven, LLP at (212) 267-2555.

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Immigration Consequences of Criminal and Fraudulent Conduct
The immigration consequences of criminal or fraudulent conduct can be harsh and often illogical. Even a very minor offense could have a dramatic immigration consequence, including deportation, detention without bond, being denied naturalization, a visa or re-entry into the United States. Likewise, the use of fake or fraudulent documents, aliases, and other misrepresentations can have similar immigration consequences. Kerry Bretz and Bretz & Coven have been counseling non-citizen criminal defendants, as well as their lawyers, for over 20 years. We have a long history of strategizing deportation and removal defenses, as well as applications for waivers, in very complicated cases.

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