How Does a Criminal Charge Affect My Immigration Status?
Criminal convictions can impact an individual’s immigration status by affecting one’s “admissibility” and “removability” (meaning “deportability”). If a person is inadmissible to the country, it means that they are not allowed to gain admission to the United States, whether it be through admission in the form of receiving a green card within the United States or by applying to change one’s immigration status from within the country. This may also apply to situations in which a person, including green-card holders, leaves the country and is attempting to re-enter the U.S. Thirdly, if one is traveling abroad and applying for any other kind of immigration status to enter the United States, he may be subject to inadmissibility.
Criminal convictions can also make an individual deportable, or “removable,” in immigration parlance. This applies to individuals who are in lawful immigration status and are not actively applying for a new status or to re-enter the country. These people have already obtained legal immigration status but are placed in removal proceedings because of a criminal conviction. Those who have been lawfully admitted at some point but have subsequently lost their legal status may also face removal.
A “conviction” for immigration purposes means any formal judgment of guilt entered by a court of law. This also applies to situations in which adjudication of guilt was withheld. When a person pleads no contest (nolo contendere) or guilty, the court must determine, as part of his sentence, whether he is “convicted” or not. The judge may either adjudicate him guilty or may withhold adjudication of guilt. A withholding of adjudication means that the individual is not convicted of the offense. However, it will appear on his record and demonstrates that a judge or jury found the non-citizen guilty, or where the non-citizen entered a plea of guilty or a no-contest plea (nolo contendere) or has admitted sufficient facts warranting a finding of guilty and a judge has ordered some form of punishment, penalty or restraint on the non-citizen’s liberty.
In essence, if there is an outcome in which a person was found guilty, or admitted guilt through a plea bargain or diversionary program, he or she could be found to have a “conviction” for immigration purposes, even if there is no criminal conviction on your record. Typically, the Accelerated Rehabilitative Disposition (ARD) program does not equate to an admission of guilt. However, Probation Without Verdict (PWV) for drug offenses will require an admission of guilt.
Under federal law, there are several categories of convictions that can impact upon immigration status for non-citizens. The most severe is considered an aggravated felony which includes rape, murder, sexual crimes, illicit trafficking of controlled substances, certain firearms offenses, violent crimes (punishable by, at least, one year in jail), theft or burglary offenses (punishable by, at least, one year in jail), crimes of fraud or deceit where the victim’s loss exceeds $10,000, owning, controlling managing or supervising a prostitution business, and/or any attempt or conspiracy conviction to commit an aggravated felony.
The second category is for “Crimes of Moral Turpitude” which consists of acts which meet the element of a crime involving moral turpitude, or an attempt or conspiracy to commit a crime of moral turpitude. Crimes of moral turpitude may include, but are not limited to: crimes involving fraud or deceit, theft, specific intent crimes or crimes involving malice or knowledge as a mens rea, lewd intent crimes, sex offenses, and certain offenses where bodily injury or serious bodily injury was caused.
Another category of crimes having ramifications for immigration involves controlled-substance offenses, which is comprised of violations of any state law or regulations relating to a controlled substance. Convictions for crimes involving domestic violence and crimes against children can also lead to immigration consequences.
There are additional classes of charges that may have negative consequences for immigration that are not enumerated here. If you are facing a criminal charge, you should speak with a qualified immigration and criminal defense attorney to determine the potential immigration consequences regarding the pending criminal charges. Contact the criminal defense and immigration lawyers at Tanner Law Offices. Our team of skilled professionals is prepared to defend you through this challenging time and ensure your rights are fully protected. Please contact our office at 717-731-8114 to schedule a consultation to discuss your case.