Occasionally, students, visitors to and lawful permanent residents of the United States encounter the criminal justice system and contact me either before or after they have worked with a criminal law attorney. The callers are obviously very upset and want to know what effect, if any, a potential conviction will have on their current and/or future status. Much depends on the status of the accused, the nature of the crime and the length of a jail sentence if imposed. In short, however, a criminal conviction can have grave consequences in the immigration context. Therefore, if you are arrested, it is very important to have experienced criminal defense and immigration attorneys review these consequences with you.
The two main issues surrounding the non-citizen convicted of a crime is whether a conviction for a crime will render the person inadmissible or deportable. The Immigration and Nationality Act governs and defines the types of crimes that render a person inadmissible and/or deportable. Convictions for Crimes involving Moral Turpitude (CIMTs) and Aggravated Felonies are two types of crimes that can have serious immigration consequences.
Crimes Involving Moral Turpitude
The Board of Immigration Appeals has held that a criminal offense involves “moral turpitude” if the relevant statute defines the offense in such a manner that it necessarily entails conduct on the part of the offender that is “inherently base, vile, or depraved, and contrary to accepted rules of morality and the duties owed between persons or to society in general.” Neither the seriousness of a criminal offense nor the severity of the sentence imposed is determinative of whether a crime involves moral turpitude. Therefore, it is essential to analyze the nature of the crime because a conviction for a CIMT or an attempt to commit a CIMT may render an alien inadmissible.
An exception to this rule exists if the maximum penalty possible for the crime did not exceed imprisonment for one year and the alien was not sentenced to a term of imprisonment in excess of six months. However, aliens can also be found to be inadmissible if they have been convicted of 2 or more offenses in which the aggregate sentences were five years or more. It does not matter whether the offenses in these matters arose from a single scheme (crime), the conviction was in a single trial or if the crime involved moral turpitude, an alien can be deemed inadmissible based on these circumstances.
A conviction for a CIMT may also render an alien deportable if committed within five years of admission and if the conviction is for a crime for which a sentence of one year or longer may be imposed. It does not matter whether the sentence was for more than one year, or not; if the sentence imposed can be for more than one year, the alien may be deportable.
The definition of an aggravated felony is governed by INA 101(a)(43(a)-(m). There are a large number of offenses that are considered aggravated felonies. All can, under certain circumstances, render the convicted either inadmissible and/or deportable. They include some of the more obvious crimes like murder, rape and the sexual abuse of a minor, drug trafficking and violent crimes that carry a sentence of more than one year in prison. However, certain convictions that may not seem as serious can also have severe immigration consequences. A conviction for a category of crimes referred to as “theft crimes” and crimes involving “fraud or deceit” may lead to removal. In New York, these crimes are usually found under the statutes related the crime of Larceny, Article 155 of the New York Penal Law or Law.
One example of a seemingly less serious crime that may have serious immigration consequences for the convicted is shoplifting. Shoplifting is a misdemeanor under New York State law. Often times people arrested for shoplifting are charged with Petit Larceny, Section 155.25 of the New York Penal Code because the value of the property in question is less than one thousand dollars. At first glance, Petit Larceny appears to be a minor crime. It is an A misdemeanor which means it carries a sentence of up to one year in prison. However, it is considerably more serious than it appears at first glance. It is also a CIMT and could be considered an aggravated felony if the sentence imposed is for one year. Other forms of Larceny carry longer sentences and also have severe immigration consequences.
The bottom line is that if you are charged with a crime you should seek the advice of an immigration attorney. The immigration consequences of a conviction can be devastating. Courts and prosecutors are often willing to allow an accused to plead guilty to lesser charges in order to avoid a trial. However, no matter what the charge you face, you need to understand the immigration consequences of a conviction for that crime.
The above is informational only, and is not intended to be legal advice. Contact an experienced immigration attorney if you are arrested.