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Laws and Visa Information
Obtaining A Green Card Despite Criminal Convictions
Attorney Robert L. Reeves, Oct 1, 2012
Criminal convictions may have severe immigration consequences. Even without being sentenced to jail, a non-citizen may be ineligible to adjust status or immigrate because of past criminal history. However, in some instances the non-U.S. citizen will still be eligible for their green card by obtaining a waiver of their prior conviction.
Categories of criminals are broken down into several categories within immigration law. They include Crimes Involving Moral Turpitude (“CIMT”), Aggravated Felonies, Controlled Substance (Drug) Violations, and others. An individual’s opportunity to obtain a green card will depend partially on the particular category to which their conviction applies.
One of the most common issues concerning crimes and applications for a green card involves CIMTs. An alien is inadmissible to the U.S. if they have committed a CIMT. An alien’s future in the United States may rest upon whether the crime is a CIMT. However, neither the Immigration Nationality Act (INA) nor the federal regulations state which crimes are CIMTs. Legal research into whether the type of violation has previously been held to be a CIMT is often required.
If the crime is a CIMT and the alien has no prior conviction, they may qualify for the petty offense exception. Under this provision, the alien will still be able to apply for a green card and will not need to obtain a waiver. The petty offense exception is available in instances where the maximum penalty for the crime of which the alien was convicted did not exceed imprisonment for one year and the alien was not sentenced to a term of imprisonment in excess of 6 months. If the alien was sentenced to more than 6 months, he is not eligible for the petty offense exception, even if he served less than 6 months in jail.
If the petty offense exception is not possible, the alien will need a waiver before they will be issued their green card. To be eligible for a waiver, the alien must have a United States citizen or lawful permanent resident spouse, parent or son or daughter who will suffer extreme hardship if the alien is not permitted to obtain status and remain in the United States. In some rare instances, the alien will have to show that the family member will suffer exceptional and extremely unusual hardship if the alien is not permitted to remain here. In addition, the alien will need to show that he or she is rehabilitated and is worthy of obtaining a favorable exercise of discretion.
One other avenue for obtaining (or regaining) the possibility of relief is post-conviction relief. The concept of post-conviction relief is complex, but it typically involves returning to the criminal court where the alien was convicted and requesting that the prior conviction and/or sentence be modified or eliminated altogether. For the post conviction relief to be effective for immigration purposes, it must be made for other than rehabilitative grounds. That means that it must be the result of a legal error. Examples of legal error are that the alien was not told the immigration consequences of the plea they were agreeing to. Expungements are an example of a rehabilitative ground of relief. They are not recognized under immigration law. That means an expunged conviction is still a conviction. It does not go away.
It is true that a criminal history places obstacles on the path to a green card. However, it is possible to work through that obstacle. Ideally, the non-citizen should consult an immigration attorney before they enter into any plea or agree to go to trial. That way, their criminal defense lawyer and immigration attorney can work together to obtain a favorable result in both areas. However, even if that is not done, a non-citizen who has been arrested or convicted of a crime should consult a knowledgeable and experienced immigration attorney before they file any application with the U.S. Department of Homeland Security.
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Author's Note: The analysis and suggestions offered in this column do not create a lawyer-client relationship and are not a substitute for the individual legal research and personalized representation that is essential to every case.
Robert L. Reeves is a licensed California attorney and is certified by the California State Bar as an Immigration and Nationality Law Specialist. He has been specializing in immigration law for over 30 years and is admitted to practice before the US Supreme Court, the US Court of Appeals for the Ninth Circuit, several US District Courts and California State Courts. He is the Managing Partner of Reeves & Associates with offices located in Pasadena, San Francisco, Las Vegas and Makati City – Unit 507 Tower One Ayala Triangle, also known as the Philippine Stock Exchange Plaza Makati , 6767 Ayala Avenue, Makati City, Philippines 1226 (corner Paseo de Roxas, beside Ninoy Aquino Monument). Philippine Contact Numbers: 759-6777 or Toll Free: 1-800-10-773-3837E-mail: immigration@rreeves.com Website: www.rreeves.com
