Crime & Immigration
Using post-conviction relief to help you in your immigration case.
What happens when someone has a conviction for a crime that makes them inadmissible or deportable and relief is not available? Is the person out of options? Again, the answer to this question depends. In some cases, the person might be able to use post-conviction relief to help them in their immigration case.
Post-conviction relief is a request that is made to the court where the conviction was entered to vacate, set aside, or correct a judgment or sentence. The process in each state and in federal court will vary. In Florida, a person has 2 years after losing their appeal to file their request for post-conviction relief, except in 4 instances.
If a person with a criminal conviction that is facing immigration consequences because of the conviction, files a request with the court of conviction to vacate, set aside, or correct the judgment or sentence and the court grants the request, the person may then be able to use this in their immigration case. A careful review of the record of conviction and what happened during the criminal case will be necessary to determine if a request for post-conviction relief is available.
Any person that has been convicted of, admitted to, or is known to have committed a crime that could make them inadmissible or deportable, should meet with an attorney to determine if there is any relief, including post-conviction relief, available to the person.
If you have questions about your immigration case, it’s important to speak with an experienced immigration attorney to discuss your specific case and circumstances. Attorney Evelyn J. Pabon Figueroa is an Associate in the Orlando office of CPLS, P.A. She is a member of the firm’s Immigration Practice Group. Contact Attorney Evelyn today at epabonfigueroa@cplspa.com to discuss any immigration issues you may be experiencing.
Crime & Immigration
Do I have options?
Part II
What happens if a person is inadmissible or deportable because of the commission of crime? Is the person out of luck? It depends. Sometimes the person will be out of luck and unable to enter or remain in the US. But other times, the person might have a relief available that will allow them to enter or remain in the US. Last week, we discussed two relief options and this week we will discuss two additional relief options available for someone that has committed a crime and is inadmissible or deportable from the US.
Relief Option: Cancellation of Removal
Cancellation of removal is available to a person that is inadmissible or deportable if the person:
1. Has been a lawful permanent resident for 5 or more years
2. Has resided in the US continuously for 7 years after having been admitted in any status
3. Has not been convicted of an aggravated felony
A person that meets the above requirements will still not be eligible for cancellation if:
a. The person is inadmissible or deportable for security grounds, including export violations
b. The person has ordered, incited, or assisted in the persecution of others
c. The person has previously received relief from deportation or removal in the form of suspension of deportation, cancellation of removal, or a waiver under INA 212(c)
Relief Option: Nonimmigrant Visa Waiver under INA §212(d)(3)
This waiver is for a person that is looking to enter the US as a nonimmigrant (e.g., tourists, temporary workers). The application is made at the consulate or at the port of entry. When it is made at the consulate, the consular official will make a recommendation, but it is the US Citizenship and Immigration Services office who makes the final decision.
The following factors are considered when deciding an application for a nonimmigrant visa waiver:
1. The risk to society if the person is admitted
2. The seriousness of the person’s immigration or criminal law violation
3. The nature of the person’s reasons for wishing to enter the US
A waiver for a non-immigrant visa may be available even for crimes that would prevent an individual from obtaining an immigrant visa.
The granting of these waivers is discretionary and the person may meet all the requirements in paper but still be denied by the immigration officer as an exercise of their discretion.
Any person that has been convicted of, admitted to, or is known to have committed a crime that could make them inadmissible or deportable, should meet with an attorney to determine if there is any relief available to the person.
If you have questions about your immigration case, it’s important to speak with an experienced immigration attorney to discuss your specific case and circumstances. Attorney Evelyn J. Pabon Figueroa is an Associate in the Orlando office of CPLS, P.A. She is a member of the firm’s Immigration Practice Group. Contact Attorney Evelyn today at epabonfigueroa@cplspa.com to discuss any immigration issues you may be experiencing.
Crime & Immigration
Do I have options?
Part I
What happens if a person is inadmissible or deportable because of the commission of crime? Is the person out of luck? It depends. Sometimes the person will be out of luck and unable to enter or remain in the US. But other times, the person might have a relief available that will allow them to enter or remain in the US. This week we will discuss two relief options available for someone that has committed a crime and is inadmissible or deportable from the US. Next week, we will discuss 2 other relief options.
Relief Option: Adjustment of Status
- Adjustment of status is the process in which someone becomes a lawful permanent resident while in the US.
- If the crime is a ground of deportability, the adjustment of status may act as a waiver of this ground.
- If the crime is a ground of inadmissibility, the adjustment of status will not act as a waiver pf this ground and the person will not be able to adjust status
- All negative information, arrest records, and other criminal activity, must have been revealed to the immigration officer for their consideration at the time the person applied for adjustment of status
- The officer in their discretion may decide that the person is able to adjust status to that of a lawful permanent resident.
Relief Option: Waivers under INA §212(h)
Waivers under INA §212(h) are used to “forgive” grounds of inadmissibility for crimes involving moral turpitude, prostitution, crimes that were not prosecuted because of immunity, and single offenses for simple possession of 30 grams or less of marijuana.
There are three different scenarios in which the waiver may apply:
1. The 15-year waiver is available to waive inadmissibility due to prostitution type offenses or crimes involving moral turpitude that occurred more than 15 years before the application for a visa, admission, or adjustment of status. The individual must show that they are not a danger to the community and have been rehabilitated.
2. The extreme hardship waiver requires a qualifying relative who is the US citizen or lawful permanent resident spouse, parent, son, or daughter of the applicant. The person will need to show that the qualifying relative will suffer extreme hardship if the application is not granted and the person is removed.
3. The battered spouse or child waiver requires that the spouse causing the damage be a US citizen or lawful permanent resident. this waiver does not require a qualifying relative or the showing of extreme hardship.
The granting of these waivers is discretionary and the person may meet all the requirements in paper but still be denied by the immigration officer as an exercise of their discretion.
Any person that has been convicted of, admitted to, or is known to have committed a crime that could make them inadmissible or deportable, should meet with an attorney to determine if there is any relief available to the person.
If you have questions about your immigration case, it’s important to speak with an experienced immigration attorney to discuss your specific case and circumstances. Attorney Evelyn J. Pabon Figueroa is an Associate in the Orlando office of CPLS, P.A. She is a member of the firm’s Immigration Practice Group. Contact Attorney Evelyn today at epabonfigueroa@cplspa.com to discuss any immigration issues you may be experiencing.
Crime & Immigration
Other Crimes: Deportable
In addition to convictions for the commission of crimes involving moral turpitude or aggravated felonies, convictions for the commission of any of the following crimes can make someone deportable from the US:
1. High speed flight from an immigration checkpoint
2. Failing to register as a sex offender
3. Violating any controlled substance law, except for simple possession for one’s own use of 30 grams or less of marijuana
4. Firearms violation
5. Domestic violence offense, stalking, child abandonment, child abuse, or child neglect
6. Any alien convicted of visa or passport fraud
In addition, a person involved in alien smuggling is deportable regardless of whether there is a conviction or not. Smuggling must have occurred prior to or at the time of the person’s entry or within 5 years of they entered.
Each crime in the above list is carefully defined by immigration law and court opinions, therefore to determine whether a crime that sounds like one of the above will cause someone to be deportable from the US requires a careful analysis of immigration law, criminal law, and court opinions. It is very important that anyone that has been convicted of having committed a crime meet with an experienced attorney to discuss their options.
If you have questions about your immigration case, it’s important to speak with an experienced immigration attorney to discuss your specific case and circumstances. Attorney Evelyn J. Pabon Figueroa is an Associate in the Orlando office of CPLS, P.A. She is a member of the firm’s Immigration Practice Group. Contact Attorney Evelyn today at epabonfigueroa@cplspa.com to discuss any immigration issues you may be experiencing.
Crime & Immigration
Crimes Involving Moral Turpitude: Deportable
A few weeks ago, in a prior blog, I mentioned that a conviction for or an admission to having committed a crime involving moral turpitude (CIMT) makes a person inadmissible to the US. Today, we look at the instances in which a CIMT will make a person deportable from the US after they have already been admitted. (CIMT definition)
There are two different instances in which CIMT’s will make someone deportable. In the first instance, the person has to have been convicted of committing a CIMT within 5 years after the date of admission and the crime must be one for which a sentence of one year or longer may be imposed. Keep in mind that it is not necessary for the person to actually be sentenced to one year or longer for the conviction of the CIMT to make the person deportable.
In addition, any person that has been convicted of 2 or more crimes involving moral turpitude is deportable.
Notice, that an admission to the commission of a CIMT will not make the person deportable.
Let’s consider the following situations:
Maria entered the US as a lawful permanent resident in 2003. In 2009, she was convicted of committing a CIMT in 2007. The crime she was convicted of had a maximum sentence of 5 years. As a result of a plea deal, Maria was sentenced to 6 months in prison. Maria is deportable.
Esteban is a lawful permanent resident. In 2003, he was convicted of committing a CIMT. Ten years later, Esteban was convicted of committing a CIMT. Esteban is deportable.
Determining whether a crime is a CIMT and will make someone deportable from the US requires a careful analysis of immigration law, criminal law, and court opinions. It is very important that anyone that has been convicted of committing a crime meet with an experienced attorney to discuss their options.
If you have questions about your immigration case, it’s important to speak with an experienced immigration attorney to discuss your specific case and circumstances. Attorney Evelyn J. Pabon Figueroa is an Associate in the Orlando office of CPLS, P.A. She is a member of the firm’s Immigration Practice Group. Contact Attorney Evelyn today at epabonfigueroa@cplspa.com to discuss any immigration issues you may be experiencing.
Crime & Immigration
Aggravated Felony: Deportable
Aggravated felons are deportable from the US. The immigration act includes an extensive list of crimes that will cause someone to be deportable. Some of the crimes included are the following:
1. Murder, rape, or sexual abuse of a minor
2. Illicit trafficking in controlled substance, including a drug trafficking crime
3. Illicit trafficking in firearms or destructive devices or in explosive materials
4. A crime of violence, but not including a purely political offense, for which the term of imprisonment is at least 1 year
5. A theft offense, including receipt of stolen property, or burglary offense for which the term of imprisonment is at least 1 year
6. An offense relating to child pornography
7. An offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000 or relates to tax evasion in which the revenue loss to the Government exceeds $10,000
8. An offense relating to obstruction of justice, perjury or subornation of perjury, or bribery of a witness, for which the term of imprisonment is at least one year
The list of crimes that will be considered an aggravated felony is very detailed. However, it is still important to keep in mind that, to determine whether a crime is an aggravated felony, it is necessary to compare the state statute of conviction with the federal laws. The classification of a crime as an aggravated felony by a state does not necessarily mean that the crime is an aggravated felony for immigration purposes.
A conviction is necessary for the person to be deportable.
Determining whether a crime is an aggravated felony and will make someone deportable from the US requires a careful analysis of immigration law, criminal law, and court opinions. It is very important that anyone that has been convicted of committing a crime meet with an experienced attorney to discuss their options.
If you have questions about your immigration case, it’s important to speak with an experienced immigration attorney to discuss your specific case and circumstances. Attorney Evelyn J. Pabon Figueroa is an Associate in the Orlando office of CPLS, P.A. She is a member of the firm’s Immigration Practice Group. Contact Attorney Evelyn today at epabonfigueroa@cplspa.com to discuss any immigration issues you may be experiencing.
Crime & Immigration
Other Crimes: Inadmissible
In addition to crimes involving moral turpitude and controlled substance violations, the following crimes can make someone inadmissible to the US:
- Any person convicted of committing two or more offenses for which the combined sentences to confinement were 5 years or more
- Any person coming to engage or who has engaged in prostitution within 10 years of the date of the application for admission
- Any person who commits or against whom there is reason to believe has committed alien smuggling
- Any person who commits or against whom there is reason to believe has committed or will commit money laundering
A conviction is only necessary in the first instance. However, a person can be denied admission because of reasons 2 through 4 above without a conviction. The officer’s belief that the person has committed these crimes is enough to deny admission. What’s even more troubling is that the officer’s belief of future commission of a crime can also cause the denial of admission.
Let’s consider the following situations:
Maria was convicted of committing two crimes and was sentenced to 3 years imprisonment for one of the crimes and to 4 years imprisonment for the other crime. Maria would be inadmissible because the combined sentences add up to more than 5 years.
Several years ago, during a trip to the US, Juan was arrested and charged with prostitution. The charges against Juan were dismissed and he returned to his home country. Recently, Juan traveled to the US with a tourist visa, but the Customs and Border Protection officer denied his request for admission because the officer believed, based on Juan’s prior arrest, that he was coming to the US to engage in prostitution.
Determining whether a crime will cause someone to be inadmissible to the US requires a careful analysis of immigration law, criminal law, and court opinions. It is very important that anyone that has been charged or convicted of, or has admitted to committing, or could be suspected of having committed a crime, meet with an experienced attorney to discuss their options.
If you have questions about your immigration case, it’s important to speak with an experienced immigration attorney to discuss your specific case and circumstances. Attorney Evelyn J. Pabon Figueroa is an Associate in the Orlando office of CPLS, P.A. She is a member of the firm’s Immigration Practice Group. Contact Attorney Evelyn today at epabonfigueroa@cplspa.com to discuss any immigration issues you may be experiencing.
Crime & Immigration
Controlled Substance Violation: Inadmissible
A non US citizen is not admissible to the US if they fit one of the following categories:
- The individual has been convicted of violating a law relating to a controlled substance
- The individual admitted to violating a law relating to a controlled substance
- The individual is known to have been an illicit trafficker in any controlled substance
- There is reason to believe the individual has been an illicit trafficker in any controlled substance
- The individual received a financial benefit from a spouse or parent who is an illicit trafficker
Not all drugs are considered a controlled substance, only those included on the federal list of controlled substances, which can be found at 21 USC 802. For this reason, it is possible for a state controlled substance violation to not be considered a controlled substance violation for immigration purposes in certain circumstances.
Note that a conviction is not necessary and an individual seeking admission to the US may be denied the benefit if the officer knows or has reason to belief that the individual is or has been an illicit trafficker in any controlled substance. This is used to deny applications for admission by individuals that have been arrested for a violation of a law relating to a controlled substance regardless of the outcome of the case. Let’s consider the following situation:
Esteban is traveling to the US with a tourist visa. At the airport in Orlando, the Customs and Border Protection (CBP) Officer finds out that Esteban was arrested during a prior trip to the US and charged with trafficking in a controlled substance in federal court. The charges in Esteban’s case were dismissed.
The CBP officer can still determine that the arrest was enough to give him a reason to believe that Esteban has been an illicit trafficker in a controlled substance and deny him admission to the US.
Determining whether a crime is a controlled substance violation requires a careful analysis of immigration law, criminal law, and court opinions. It is very important that anyone that has been charged or convicted of, or has admitted to committing, or could be suspected of having committed a crime that could potentially be a controlled substance violation, meet with an experienced attorney to discuss their options.
If you have questions about your immigration case, it’s important to speak with an experienced immigration attorney to discuss your specific case and circumstances. Attorney Evelyn J. Pabon Figueroa is an Associate in the Orlando office of CPLS, P.A. She is a member of the firm’s Immigration Practice Group. Contact Attorney Evelyn today at epabonfigueroa@cplspa.com to discuss any immigration issues you may be experiencing.
Crime & Immigration
Ground of Inadmissibility: CIMT
Any person that is convicted of or admits to committing a crime involving moral turpitude (CIMT) is not admissible to the US. Immigration laws define a CIMT as (1) an act that is inherently evil or wrong by any society’s standard, or (2) conduct that is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between person or to society in general.
If you are confused, you are not alone. Here are a few things you should keep in mind when trying to figure out if a crime is a CIMT:
- Knowledge is usually a required element of the crime
- Specific intent is usually a required element of the crime
- An element of conscious disregard of a substantial and unjustifiable risk may make a crime a CIMT
- A crime’s classification as a misdemeanor or felony or the sentence imposed do not determine whether a crime involves moral turpitude
The following are examples of crimes that have been determined to be CIMT’s:
- Theft offenses, if they involve a permanent taking
- Crimes that have fraud as an element
- False statements made with the specific intent to deceive
- Murder and attempted murder
- Assault with a deadly weapon
- Possession of child pornography
- Trafficking in a controlled substance
Determining whether a crime is a CIMT requires a careful analysis of immigration law, criminal law, and court opinions. It is very important that anyone that has been charged or convicted, or has admitted to committing, a crime that could potentially be a CIMT, meet with an experienced attorney to discuss their options.
If you have questions about your immigration case, it’s important to speak with an experienced immigration attorney to discuss your specific case and circumstances. Attorney Evelyn J. Pabon Figueroa is an Associate in the Orlando office of CPLS, P.A. She is a member of the firm’s Immigration Practice Group. Contact Attorney Evelyn today at epabonfigueroa@cplspa.com to discuss any immigration issues you may be experiencing.
Crime & Immigration
What does it mean to be removable?
Any person that is not a US citizen can be subject to removal from the US if they are found to be inadmissible or deportable.
Who is inadmissible?
Any person seeking admission to the US that is not allowed to because it is determined that one or more ground of inadmissibility applies is inadmissible. Sometimes this includes lawful permanent residents or green card holders.
Grounds of inadmissibility cover the following areas: Health, criminal, national security, immigration violations, and economic.
Who is deportable?
Any individual that was inspected and admitted to the US but that is now removable due to one or more grounds of deportability. This includes lawful permanent residents or green card holders.
Grounds of deportability cover the following areas: Persons that should not have been admitted to the US, immigration status violations, economic, national security/political, unlawful voting, and criminal.
Let’s consider two different scenarios:
Javier is a national of Chile and is traveling to the US with a tourist visa. At the airport in Orlando, the Customs and Border Protection officer finds out that Javier has a criminal conviction for trafficking in a controlled substance. Javier’s conviction is a ground of inadmissibility and he is denied admission to the US. Javier returns to Chile on the next available flight.
Armando, a lawful permanent resident, is conviction for attempted murder and sentenced to 10 years in state prison. Armando’s conviction is a ground of deportability and he will be placed in removal proceedings.
During this series, we will focus on the criminal grounds of inadmissibility and deportability, but keep in mind that there are many other reasons why someone would be denied admission to the US or would be deported after being granted admission.
Video: What does it mean to be removable?
If you have questions about your immigration case, it’s important to speak with an experienced immigration attorney to discuss your specific case and circumstances. Attorney Evelyn J. Pabon Figueroa is an Associate in the Orlando office of CPLS, P.A. She is a member of the firm’s Immigration Practice Group. Contact Attorney Evelyn today at epabonfigueroa@cplspa.com to discuss any immigration issues you may be experiencing.
