(Part 2 of 2)
Every nation’s immigration rules and regulations seek to weed out ‘undesirables’ or ‘deplorables’ maybe – those with the propensity for malicious mischief or simply, to do harm. The United States is no exception. When a foreigner commits a crime and gets convicted, the steps toward the path to citizenship will be an obstacle course or at worst, a dead end. A standard process to obtain a green card, could stretch to additional years of filing waivers, motions, appeals, or appearances before an immigration judge, depending on the situation. Having a criminal conviction, whether of a serious nature or not, will determine an applicant’s admissibility into the United States, whether the visa is processed abroad or the applicant is present in the U.S. and qualifies for adjustment of status. Other routine procedures such as applying for a renewal of one’s green card or for citizenship, could be delayed or derailed. DACA applicants and Provisional Waiver applications may be denied because of a criminal record. If the criminal conviction is severe enough as prescribed by the rules to merit removal from this country, one may find himself clinging to the last straw; begging the immigration judge for a chance to be allowed to stay in the U.S.
While waiting in immigration purgatory, there are applications/reliefs that are crucial to foreigners who need to stay in the United States with their family when they are placed in removal proceedings. These reliefs/applications imposes a code of behavior within the standards of “good moral character” to avail of asylum, cancellation of removal, withholding of removal or voluntary departure. In certain cases, a conviction for a felony after naturalization (where the case was pending but not disclosed during the citizenship proceedings), could cause the naturalization to be revoked as it is considered illegally obtained or obtained by deceit and fraud. This is the ultimate punishment – divestment of a hard-earned U.S. citizenship because of a disqualifying criminal conviction. Crimes involving moral turpitude (such as theft, fraud, false statement, assault, voluntary manslaughter, etc.) is a determinant of “good moral character”. Failure to prove GMC for the last 5 years prior to filing of the application, will lead to its denial. For those who have been convicted of an aggravated felony such as murder, rape, sexual abuse of a minor, crime of violence where the term of imprisonment is more than a year, etc., the applicant will be permanently barred from becoming a US citizen. If the applicant is found to have deliberately misled the U.S. government and withheld the information and still obtained U.S. citizenship, the penalty to this separate offense is jail time of 15-25 years plus fines.
The terms ‘crime involving moral turpitude’ and ‘aggravated felony’ are specially defined under immigration law. Federal and state legislature could classify offenses as a ‘misdemeanor’ but under immigration law, it could be classified as an ‘aggravated felony’ for which mandatory detention could be imposed. The need to consult an immigration attorney when confronted with criminal charges cannot be overstated. As a foreigner, you are constantly bombarded with questions contained in the immigration forms relating to criminal offenses. For instance, the question in the Application to Adjust Status asks whether you have ever (in or outside the United States) been arrested, charged, convicted of a crime (excluding traffic violations)? If an applicant feels at times that an arrest or conviction that occurred in his life was not significant enough or was just a traffic violation, the tendency not to disclose could have serious consequences. If the immigration officer checks public records and your name appears with an arrest or conviction, this is a problem because being caught in a ‘lie’ makes you also inadmissible. What if the offense is indeed insignificant because it is not a ‘crime involving moral turpitude’ or the list of crimes are misdemeanors, then being honest and candid will be appreciated. In the worst case scenario that the green card application is denied because of the criminal record, one can probably apply for a waiver of inadmissibility. In some instances, waivers are likewise available to those who have already obtained their lawful permanent resident status (green card holders) but who become deportable because of criminal convictions. Waivers are available in order to preserve ‘family unity’, but not in all cases. The fate of those who commit ‘aggravated felonies’ as defined by immigration laws is harsh; i.e., mandatory detention (without bail) and eventually, removal from the United States. As I always tell my clients, “Just stay out of trouble”.
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Maria Rita Reyes-Stuby is a licensed attorney in Michigan. She is a graduate of the University of the Philippines College of Law. She specializes in immigration and practices in Las Vegas, Michigan, California and other states. Bernadette Bretana, a graduate of the Ateneo Law School and Ms. Stuby are licensed attorneys in the Philippines. Please call @702-403-4704 or email her at [email protected] or go to www.mrstubylaw.com for any questions on this article.
