What crimes make an immigrant deportable?
How crimes of moral turpitude, aggravated felonies, and other crimes can make even a green card holder deportable from the U.S.
All immigrants, including those with green cards, can be deported if they violate U.S. immigration laws. The most common reason for people to be placed into removal proceedings is because there is evidence that they have committed a crime.
Specifically, immigrants can be deported if they commit either what is called a "crime of moral turpitude" under certain conditions described in this article, or an "aggravated felony," unless the crime counts as a petty offense. In addition, certain crimes are specifically listed within the immigration laws as being grounds of deportability.
This section addresses what criminal convictions will cause a person to get into trouble as well as whether any recourse may be available to the offender.
What Counts as a Crime of Moral Turpitude Under Immigration Law
"Crimes of moral turpitude" are not well defined in U.S. immigration law. However, the Department of State has provided guidance, noting that the most common elements of a moral turpitude crime will include "fraud, larceny, and intent to harm persons or things." Crimes involving dishonesty and theft will almost always be considered crimes of moral turpitude. Other examples would be assault with the intent to rob or kill, spousal abuse, and aggravated driving under the influence ("DUI" or "DWI").
As there are too many examples of crimes that have been found to involve moral turpitude to list here, it is safest to take a certified disposition of your offense (obtained from the clerk of the court where your case was heard) to a criminal or immigration attorney in order to learn whether your particular type of conviction has been found to be one.
When evaluating whether a crime involves moral turpitude, U.S. courts will examine the elements of the crime first and then compare them to "the generic definition of a crime involving moral turpitude." (This comes from the court case Castrijon-Garcia v. Holder, No. 09-73756, January 9, 2013.)
It may be possible to argue that your conviction should not be classified as a crime of moral turpitude, or that the statute that you violated contains elements that would not always pertain to a crime of moral turpitude. These types of defenses will be highly dependent upon the wording of the statute under which you were convicted. Criminal statutes almost always come from state law, so you may be raising brand new questions about how these statutes are interpreted under federal immigration law.
A Petty Offense Exception May Excuse a Crime of Moral Turpitude
Immigration law provides that a crime can escape classification as a crime of moral turpitude if it is a "petty offense." The petty offense exception applies if the penalty for the crime committed could never exceed one year of imprisonment, and if any time the person actually served in prison was less than six months.
Examples of petty offenses could include shoplifting, simple assault, or a DUI that did not involve driving without a license or damage to property or persons, depending on the law in your state.
When a Person May Be Deported for a Crime of Moral Turpitude
There are two different ways that committing a crime of moral turpitude will put you into removal (deportation) proceedings:
1) You commit a crime of moral turpitude during the first five years after your admission to the United States.
2) You commit two or more crimes of moral turpitude that did not arise out of a single scheme of criminal misconduct at any time after your admission to the United States.
Keep reading to learn more about how to determine whether you are at risk of deportation for a crime involving moral turpitude.
Determining Whether You Committed a Crime Within Five Years of Admission
In order to know whether you committed your crime within five years after your admission to the U.S., you must first start with the date when the crime was committed and then count back five years. If you were legally admitted to the U.S. from the border, airport, or any other point of entry during those five years, you may be placed into removal proceedings. If more than five years have passed since the date you were admitted, then you are not deportable.
For example, if you entered the United States in 2001 as an F-1 student, received your green card while here in 2006 ("adjustment of status"), and committed a crime of moral turpitude in 2008, you are not deportable, because more than five years passed from the date of your admission as a student. In some situations the date that applicants adjust to permanent residence is also treated as a date of admission, but this will not apply in most situations when determining whether an immigrant is deportable.
Determining Whether You Are Deportable for Multiple Crimes of Moral Turpitude
You can also lose your green card and be placed into removal proceedings if you have committed more than one crime involving moral turpitude, regardless of when the crimes occurred. However, if multiple crimes "arise from a single scheme of criminal misconduct" they will be considered only one crime when determining deportability. Whether this rule applies will depend on the circumstances of the case.
For example, if someone had two different robbery convictions but both robberies occurred at the same location and around the same time, those offenses arose from a single scheme of misconduct. If a person had two robbery convictions and the incidents occurred on two different dates and at two different locations, then the offenses did not arise from a single scheme of misconduct and the person is likely deportable for multiple crimes involving moral turpitude.
Unlike with a single crime of moral turpitude, once you commit two crimes of moral turpitude not arising from the same scheme of criminal misconduct, you can be deported no matter how much time has passed since your last entry ("admission") to the United States. There is no five year "look-back" period.
A Waiver May Be Available for a Crime of Moral Turpitude
There are a few situations in which you may be able to apply for a waiver of a crime of moral turpitude under Section 212(h) of the Immigration and Nationality Act (I.N.A.). A "waiver" is a form of legal forgiveness that would allow you to avoid deportation. In order to qualify, you must never have committed an aggravated felony, you cannot be a threat to national security, and you must have lived within the U.S. continuously for at least seven years.
Some examples of situations that may be waiver-eligible include possession of less than 30 grams of marijuana, crimes related to prostitution, or crimes that were committed more than 15 years ago.
You can also apply for a 212(h) waiver if you can show that you self-petitioned for your green card under the Violence Against Women Act (VAWA) because you suffered physical or emotional abuse at the hands of a U.S. citizen or permanent resident spouse or parent, or that your deportation would cause extreme hardship to a U.S. citizen or permanent resident spouse, parent, or child.
Ultimately, your success in obtaining a 212(h) waiver will depend on the level of violence involved in any crimes committed, proof of rehabilitation, and other factors showing that you deserve a second chance.
What Is An Aggravated Felony?
The full list of crimes that are considered aggravated felonies under immigration law (which is different from criminal law) is extensive and may be found in the Immigration and Nationality Act at I.N.A. § 101(a)(43). It includes such crimes as murder; rape; drug or firearms trafficking; sexual abuse of a minor; child pornography; money laundering, fraud or tax evasion involving more than $10,000; theft or violent crime with a sentence order of at least one year (it is irrelevant if it was suspended or if you only had to serve part of it); espionage, sabotage, or treason; perjury with a sentence of at least one year; and more.
If you were convicted of an aggravated felony at any time, there will be very little that you can do to avoid deportation, unless you can prove it is more likely than not that you would be tortured in your native country upon return. A waiver to return to the U.S. will not be available for any purpose. You should obtain competent counsel who can help you avoid an aggravated felony conviction that will permanently render you inadmissible to the United States.
Other Crimes That Can Make an Immigrant Deportable
The full list of crimes and other grounds of deportability is in Section 237 of the I.N.A. It lists things like drug crimes, illegal firearms possession or sales, espionage, domestic violence, stalking, child abuse or neglect, human trafficking, terrorist activity, and more. In some cases, the crimes on this list might also be considered crimes of moral turpitude or aggravated felonies. By listing them separately, however, the law ensures that immigrants cannot attempt to defend against deportation by arguing about whether or not the conviction should count as a crime of moral turpitude or aggravated felony.