fbq('track', 'ViewContent');

A Criminal Past Does Not Always Mean End of Green Card Dreams

by Dinh Tran, Partner, Queen City Immigration Law. 704-500-2075

A person can become a lawful permanent resident (“LPR”) in the United States by one of two means: adjustment of status or obtaining an immigrant visa at a consular post abroad. Adjustment of status is applicable to individuals who have already lawfully entered the country, such as on a tourist visa. Immigrant visas are used for those who are outside of the United States. In either case, one of the requirements to receiving the “green card” is being admissible.

The Immigration and Nationality Act (“INA”), section 212(a)(2), specifies several classes of foreigners who are inadmissible and thus ineligible to become LPRs. One of those groups is people who have committed certain types of crimes, regardless of whether they have been convicted of those crimes. While a conviction, meaning a formal judgment of guilt of the alien entered by a court, is not necessary to be deemed inadmissible, having a conviction on a criminal record also does not automatically mean that the person can never be an LPR.

First, there are certain crimes that even if convicted of do not make the person who committed them inadmissible. Those are generally some minor offenses, such as simple assault and battery, speeding, or DUI. On the other hand, certain other crimes called “crimes involving moral turpitude” and drug offenses can cause the person who committed them to be denied the “green card,” even without a formal judgment of guilt.

The term “crimes involving moral turpitude” (“CIMT”) has a broad meaning and is not very well defined in either the statutes or court cases. Written opinions from the Board of Immigration Appeals (“BIA”) describe moral turpitude as “conduct that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed between man and man, either one's fellow man or society in general.” This imprecise legal term has led many courts and judges to decide various crimes to involve moral turpitude and hold others, sometimes similar, but from different states and having different elements, to not fall into that category.

A determination whether an offense committed or convicted of is a CIMT a complex one that requires the analysis of the relevant criminal statute and facts of each case. But even an applicant for LPR status is found to have committed a CIMT or a drug offense, it does not mean the doors are firmly shut. The immigration law, specifically INA 212(h), provides for methods to ask the government for a waiver. However, obtaining a waiver is not a trivial endeavor and requires detailed knowledge of immigration laws plus expert skills in formulating strong legal-factual arguments.