Vacating Criminal Convictions under the Immigration and Nationality Act ("INA")

The Immigration and Nationality Act (“INA”) restricts certain classes of individuals from being able to enter the U.S. - whether temporarily or permanently – by deeming them ‘inadmissible’ to the United States under INA §212. Conversely, the INA also has certain provisions which can render individuals who are already present in the U.S. – whether lawfully or unlawfully – ‘removable’ from the United States under INA §237. One class in particular that is vulnerable to being permanently ‘inadmissible’ and/or ‘removable’ are individuals who have certain prior criminal convictions.

Specifically, pursuant to INA § 212(a)(2)(A)(i) (which tends to be a common ground of inadmissibility but is not the sole ground of criminal inadmissibility): Any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of: (I) a crime involving moral turpitude or an attempt or conspiracy to commit such a crime, or (II) a violation of any law or regulation of a State, the United States, or a foreign country relating to a controlled substance, is inadmissible.

The various grounds of removability based on criminal convictions can be found in INA §237.

Crimes Involving Moral Turpitude

A crime involving moral turpitude (“CIMT”) is generally defined as a crime that is “inherently base, evil, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.” The definition of a CIMT is somewhat difficult to understand by many; however, the following crimes have been commonly found by courts to be CIMTs: Assault (in the second degree), Battery (aggravated), Child/Spouse Abuse, Criminal Reckless Conduct, Driving Under the Influence (aggravated), Arson, Blackmail, Theft, Possession of Stolen Property, and Bribery. However, since each state statute differs, and each case is unique factually, foreign nationals are urged to have an experienced immigration attorney review their case to ensure/confirm whether or not their specific conviction is a CIMT. Additionally, even if the conviction is a CIMT, an experienced immigration attorney can determine whether the conviction may fall under one of two the enumerated exceptions (Petty Offense Exception and/or Juvenile Exception) provided under INA §212.

Convictions for Violations of Federal, State, or Foreign Drug Laws The INA is exceptionally harsh when it comes to dealing with drug related convictions because of the severe negative impact that drugs have on our society. For example, while the INA provides for a nonimmigrant waiver for drug conviction(s) to allow individuals to visit the United States under INA §212(d)(3), it does not provide for an immigrant waiver for drug convictions other than a single offense of simple possession of 30 grams or less of marijuana. Thus, while individuals with drug convictions may apply to temporarily enter the United States with non-immigrant status, they will be forever barred from immigrating to the United States (beyond the aforementioned exception) because of their previous drug-related conviction.

Inadmissibility Based on Conviction

The INA defines the term “conviction” as: “a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where— (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and

(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.” INA § 101(a)(48)(A).

What does this mean? Well a conviction itself is easy enough to understand – but there may be situations in which the foreign national has been advised that the case has been dismissed pursuant to a conditional discharge or some other means, but an underlying plea of guilt remains. The underlying plea of guilt could still be a ‘conviction’ for immigration purposes.

Inadmissibility Based on Admission

Surprisingly, under INA § 212(a)(2)(A)(i), an individual can be found inadmissible, even if they have not been convicted in a court of law, as long as they “[admit to] having committed, admit [to] committing acts which constitute the essential elements of ” a CIMT or a controlled substance related offense. On its face, INA § 212(a)(2)(A)(i) seems to run contrary to well-established constitutional principles, such as due process; however, the INA is intentionally written this way to give immigration officers greater authority to prevent individuals (who may have committed a crime, but were not arrested or convicted for it) from entering the United States. When an immigration officer makes a finding of inadmissibility based on an admission, it is equal to that of a conviction by a court of law for immigration purposes and will remain on your immigration record and forms a permanent ground of inadmissibility. However, there are procedural safeguards in place within the law to ensure that any such ‘admission’ is legally sufficient.

Our Services

In the past, our firm has successfully assisted numerous clients in clearing up/resolving their inadmissibility. In some situations, it was a matter of establishing that the disposition of their criminal matter did not result in a conviction for immigration purposes. In some, it was a matter of reminding immigration officials that while the individual had a conviction for immigration purposes, their conviction fell into an enumerated exception. For others, it has been discussing the client’s case in detail with them and determining whether, through the assistance of a criminal attorney, their conviction could be vacated because there seems to be a technical/legal defect in the underlying criminal proceedings which forms the basis of their inadmissibility. If the conviction is vacated, we then prepare a legal memo explaining to the proper authority (whether a U.S. Consulate abroad or U.S. Customs & Border Protection) that the foreign national is no longer inadmissible and that the appropriate records be updated to reflect the same.

And for the fortunate few that have contacted us during their criminal proceedings, we have been able to work with their criminal attorney to help resolve their criminal matters in a way that does not render them inadmissible to the U.S.

What should you take away from this posting? If you are currently in criminal proceedings and are a foreign national, contact our office to team up with your criminal attorney to avoid a conviction which can render you removable and/or inadmissible. If you have completed your criminal proceedings and have a conviction, contact our office to have us evaluate your current immigration status and options moving forward.

CBP Can Place Foreign Nationals in Removal Proceedings for Failing to Obtain Non-Immigrant Waivers Prior to Applying for Admission at POE

Our firm often encounters individual in a similar predicament - They have recently been placed into removal proceedings in Immigration Court because they continuously appeared at a Port of Entry (POE) seeking admission into the U.S., despite the fact that they were previously advised by U.S. Customs & Border Protection (CBP) that they were inadmissible to the U.S. under INA § 212, whether it be for previous immigration violations, previous criminal convictions, or some other ground of inadmissibility.

This situation also has one other common denominator: these individuals tend to be Canadian citizens, given that Canadian citizens are visa exempt.

So why are these individuals in removal proceedings? In fact, they usually don’t even live in the U.S., but are simply trying to enter for a temporary visit. Well, what happens is that when CBP encounters these individuals at the POE, who after being repeatedly advised that they need a nonimmigrant waiver (Form I-192) to enter the U.S. continue to attempt to enter the U.S. without acquiring the waiver, CBP choses to exercise its authority and places them in removal proceedings in front of an Immigration Judge. CBP will issue a Notice to Appear (NTA), which is the charging document for immigration matters. The individual is then either provided with a date/time to appear in front of the Immigration Judge or receives a notice in the mail at a future date. For those individuals that end up in removal proceedings after appearing at a POE near Buffalo, New York, they end up in removal proceedings in front of the Immigration Judge in Buffalo, New York, who has a backlogged docket of over a year.

Now, this is the situation these individuals have placed them in – they were already inadmissible to the U.S. under INA § 212 (whether it was for previous immigration violations, criminal convictions, etc.), and now they may become subject to yet another ground of inadmissibility if they are ordered removed from the United States (which they may be if they are unable to overcome the charge of inadmissibility being lodged against them). If the individual is ordered removed from the U.S., they are going to be barred from re-entering the U.S. for a period of ten (10) years. If they want to enter the U.S. prior to the expiration of their ten-year bar, they need to apply for yet another waiver – Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal. This is in addition to the Form I-192, Application for Advance Permission to Enter as Nonimmigrant, that they already require.

However, one option that may be available for these individuals in order to avoid a formal removal order is to request that they be allowed to withdraw their application for admission. Put simply, it is the individual saying to the Court “I’m sorry I applied to enter the U.S. I would like to take my application back and go home now.” This is a highly discretionary request, and not a right or a benefit, so the Immigration Judge does have the discretion to deny the request. Nonetheless, in some cases, it may be worth pursuing this strategy in order to avoid a removal order that will incur either a ten (10) year bar to the US or require applying for yet another waiver.

For those individuals who have been previously advised by CBP that they require a nonimmigrant waiver to enter the U.S., before re-appearing at the POE to enter, it is highly advisable that these individuals apply for their waivers to avoid being placed in removal proceedings. Should an emergency arise during the pendency of the waiver application, there may be the opportunity to apply for parole while the waiver application is pending.

If you are one of these individuals who has already been placed into removal proceedings based on a scenario described above, please schedule a consultation with our office to determine whether withdrawing your application for admission may be a advisable and feasible strategy.

Another I-192, Application for Advance Permission to Enter as Nonimmigrant, Approval obtained for Canadian Citizen.

Application Type: I-192

Adjudication Time: 156 Days

Adjudicating Agency: Admissibility Review Office (Filed @ Lester B. Pearson International Airport in Toronto, Ontario)

Grounds of Inadmissibility: INA § 212(a)(9)(B)(i) – Period of Unlawful Presence in the U.S.

Purpose of Entry into U.S.: Business & Pleasure Visits – Visit with family and family vacations, as well as attending tradeshows and convections that are held in the U.S.

SRW Strategy: Evidence of Rehabilitation (no immigration violations since her departure from the United States in 2006; 25 years since the commission of acts forming the basis of her inadmissibility)

Approval Period: One (1) Year

I-192 Waiver Approved for Canadian Citizen who wants to visit the United States

Application Type: I-192

Adjudication Time: 153 Days

Adjudicating Agency: Admissibility Review Office (Filed @ Sumas Port of Entry in Sumas, Washington)

Grounds of Inadmissibility: INA §212(a)(2)(A)(i)(I) – Convictions for Crimes Involving Moral Turpitude (1984 Convictions in Calgary, Alberta, Canada for Two (2) Counts of Theft Under $200)

Purpose of Entry into U.S.: Pleasure Visits [B-1] – Visit with family in the U.S. & Vacation to the U.S.

SRW Strategy: Evidence of Rehabilitation (no criminal issues since 1984, business owner who is a productive member of society).

Approval Period: One (1) Year