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.
Immigration Now!
USCIS Policy Update regarding False Claim of Citizenship
On April 24, 2020, U.S. Citizenship and Immigration Services (USCIS) announced it is updating its policy in order to follow the Board of Immigration Appeals’ (BIA) decision in Matter of Zhang. This decision held that false claims of U.S. citizenship do not need to be knowingly made to make a non US citizen (USC) deportable under the Immigration and Nationality Act (INA). This will also apply to the false claim to U.S. citizenship ground of inadmissibility.
Under the INA, a non USC is inadmissible or deportable if they falsely claim to be a citizen of the United States for any purpose or benefit under immigration law or under other federal or state law. A waiver may be available for some individuals.
Under the change in policy, is not necessary for the government to show that the individual had the intent to claim to be a USC. This could have been done without knowing that they were falsely claiming to be a USC.
Non USC’s should consult with an immigration attorney before applying for immigration benefits in order to consider the possibility that this ground of inadmissibility or deportability could apply to them. This is especially important for those individuals that have signed Form I-9 as part of the hiring process and might not have realized that the employer selected the USC option.
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.
