A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration lawyer. We serve clients in all U.S. states and overseas countries. (All information is not legal advice and is subject to change without prior notice.)

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Friday, March 8, 2013

Criminal Grounds of Inadmissibility (or Non-Admission) in Immigration Law

Section 212 of the Immigration and Nationality Act (“INA”) makes certain classes of foreigners ineligible to receive U.S. visas or to be admitted into the country.  Some major grounds for non-admission or “inadmissibility” include health-related grounds, criminal and related grounds, security and related grounds, public charge, foreign labor lacking certification by Labor Department, illegal entrants and violators, etc.  This article will focus on the issue of criminal grounds of inadmissibility.  Foreigners who have a criminal background are bound to encounter obstacles when applying for admission into the United States either as immigrants or temporary visitors.  Although there are some exceptions and waivers available to alleviate the negative consequences of minor offenses, serious criminal convictions can be a permanent bar to admission for foreign nationals. 

Foreigners subject to the Grounds of Non-Admission
Who exactly are subject to these grounds of inadmissibility?  Foreigners who are subject to grounds of inadmissibility include individuals who are applying for admission at a U.S. port of entry as well as permanent residents (green card holders) who are seeking readmission after foreign travel.  Even individuals who are physically present in the U.S. may still be subject to the grounds of inadmissibility.  For instance, noncitizens who entered the U.S. without having been inspected by an immigration officer (e.g., by crossing the border) are subject to all grounds of inadmissibility.   Intending immigrants present in the U.S. who are seeking to adjust their status to become permanent residents must also establish that they are admissible under the law.    

Major Criminal Grounds of Inadmissibility
Under §212(a)(2) of the INA, the following classes of foreign aliens are subject to the criminal grounds of inadmissibility:     Foreigners convicted of, who admits having committed, or who admits the essential elements of a crime involving moral turpitude (CIMT) or  a controlled substance violation;   Foreigners convicted of two or more offenses for which the aggregate sentences to confinement were five years or more;   Foreigners whom a consular officer or the attorney general knows or has reason to believe is a drug trafficker;  Foreigners coming to the U.S. to engage in prostitution or commercialized vice;   Foreigners engaged in human trafficking;  Foreigners whom a consular officer or the attorney general knows, or has reason to believe, to be money launders or who are coming to engage in money laundering in the U.S.

Exceptions to Crimes involving Moral Turpitude
Crimes involving moral turpitude remains to be the most common reasons for foreigners to be refused admission to the U.S. However, the statute provides two exceptions to the CIMT ground of criminal inadmissibility, namely, juvenile exception and the petty offense exception.  The juvenile exception applies if the offender committed the crime under the age of 18 and, if a term of imprisonment was imposed, the offender was released more than five years before the date of application for a visa or admission.  The petty offense exception applies when the maximum penalty possible for the crime did not exceed one year of imprisonment and, if the offender was convicted of such crime, he or she was not sentenced to more than 6 months of imprisonment.  

Note: These exceptions only apply to the CIMT ground of inadmissibility but not to the other grounds.

What constitutes Crimes involving Moral Turpitude
While no clear definition exists within the law for CIMTs, the term has been held by the courts to include that demonstrate “baseness, vileness, and depravity” on the part of the perpetrator.  CIMTs usually require the perpetrator to have an evil mind such as an intent to defraud or an intent to harm another person.  The most common CIMTs include fraud, misrepresentation, theft, and other crimes against property.  Most crimes of violence involving intent, such as murder, voluntary manslaughter, mayhem, robbery, rape, etc., also are CIMTs. 

On the other hand, simple assault usually is not classified as a CIMT without aggravating circumstances.  Similarly, driving under influence (DUI) is not considered a crime of moral turpitude unless the driver harbors some sort of unlawful intent.  For example, Under Arizona law, the offense of aggravated driving under the influence, which requires the driver to know that he or she is prohibited from driving under any circumstances, is a crime involving moral turpitude.  

One’s Admission to the Crime is Enough
It is important to note that a criminal conviction is not needed for the CIMT ground of inadmissibility to apply.  If one admits having committed the acts or the essential elements of a crime involving moral turpitude, than he or she can be found inadmissible under the immigration law.  Therefore, it’s very important for foreigners with criminal background to consult with a qualified immigration attorney before applying for U.S. admission or permanent resident status.   

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