To legally enter or remain in the United States you have to be inspected and admitted into the country at some point. Inspection occurs before an immigration officer and can take place at a consulate office abroad or at a port of entry. Admission occurs when you are legally admitted to the US at a port of entry. To be admitted you have to be admissible to the US and there are certain criminal convictions that can make you inadmissible. While criminal conduct in a foreign country can make you inadmissible, this article will focus on criminal convictions in the US. It might seem odd to talk about how criminal convictions obtained by people in the US can make them inadmissible to the US, but the reality is there are lots of people here who do not have status but who may have a chance to be admitted to the US either through an adjustment of status of returning to their home country and then processing through a local consulate office. In either situation, it’s important to know whether a past criminal conviction or a pending criminal charge will make you inadmissible to the US.
Crimes Involving Moral Turpitude
The first term you need to be aware of is a crime involving moral turpitude, also known as a CIMT. I would love to be able to tell you exactly which crimes are CIMTs and which are not, but the law does not give much clear guidance on that. Courts have stated that moral turpitude refers generally to conduct which is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general. But there is still no list of what exactly falls into this category. To make matters more confusing, two people can be convicted of the same crime and one be inadmissible based on a CIMT and the other not. It depends on how the statute is worded, the elements of the offense the client was convicted of, and the minimum conduct necessary to commit it. To determine whether a conviction will be a CIMT you should consult with an experienced immigration attorney who will also likely need to see documents related to your conviction or pending charges.
Conviction of a crime involving a controlled substance can also make you inadmissible. If you are charged with a controlled substance offense there may be ways to resolve your case that do not make you inadmissible. It may be possible to get into a diversion program or negotiate a plea deal that involves a plea to an offense that does not make you inadmissible in exchange for the controlled substance offense being dismissed. If you have already been convicted of a drug charge, there may be ways to reopen your case. Because many aliens are often represented by attorneys that do not understand immigration law, you may be able to argue that you were not properly advised of the immigration consequences of pleading guilty to a charge and request a court to reopen your case. The effect of reopening your case will mean you have a pending charge instead of a conviction, and you are not inadmissible while the charge is pending.
There are some exceptions to grounds of inadmissibility. There is an exception if you were under 18 when you committed the crime and it has been more than five years since you completed any sentence from your conviction. In this case, you will not be inadmissible based on the conviction. You also will not be inadmissible if the maximum possible penalty for your crime does not exceed one year and the maximum sentence that you receive does not exceed six months in jail. It does not matter if you ever actually serve any time in jail and a suspended jail sentence still counts. If you have pending criminal charges, these are all exceptions that your attorney needs to be aware of during plea negotiations.
Multiple Criminal Convictions
Criminal convictions do not have to be CIMTs or controlled substance offenses to make you inadmissible. If you have two or more criminal convictions and have a total sentence of five years or more of incarceration, you are inadmissible. I’ve seen this most commonly with people convicted of drunk driving, also known as driving under the influence (DUI). In Louisiana, a third conviction of DUI carries a mandatory minimum sentence of five years. While a first or second conviction of DUI generally would not make a person inadmissible, because of the mandatory minimum sentence in Louisiana a third offense will make someone inadmissible.
Waiver of Inadmissibility
A person who is not eligible to be admitted to the US because of a criminal conviction may be able to apply for a waiver of the grounds of inadmissibility. For either a conviction of a crime involving moral turpitude or multiple convictions with a sentence in excess of five years, you can apply for a waiver if it has been more than 15 years since you committed the conduct that makes you inadmissible. You can also apply for a waiver if you are the spouse, parent, or child of a US citizen or lawful permanent resident and you can show that refusing the waiver would result in an extreme hardship to your relative. You can also apply for a waiver if you are seeking lawful permanent resident status through the Violence Against Women Act, which despite its name does not just apply to women. Even under these circumstances there are some very serious criminal convictions that cannot be waived.
Consult with an Experienced Attorney
If you have pending criminal charges and are concerned about how they might impact your possible immigration relief, you should consult with an attorney that understands both immigration law and criminal law. An attorney that only understands one or the other is not in a position to fully advise you of the consequences a criminal conviction may have on your immigration case. You should also consult with an experienced immigration attorney if you have a previous charge and are concerned that it may make you inadmissible to the US.
At Rusty Messer & Associates we have handled numerous cases that involved both criminal and immigration issues. We have been successful in structuring plea deals in ways that would not make an alien inadmissible and in arguing to immigration courts that a prior conviction does not make someone inadmissible. We also have lots of experience with waivers of inadmissibility. If you have questions about how an immigration charge might impact your case, call us today at (225) 963-9638 to schedule a consultation.