Criminal Activity (CIMT) And Adjustment Of Status
Author: Green Card Attorney Alena Shautsova
New York Immigration lawyer Alena Shautsova helps her clients to analyze their immigration status, and apply for permanent residency in the US. In doing so, we collect information about various aspects of a person’s life both in the US and abroad. It is important to collect accurate and up-to-date data and compare them to the rapidly changing Immigration laws and regulations.
A person who is considering applying for adjustment of status, or a green card in the US, has to first check if he/she is “adjustable”. In other words, a person has to verify that there are no legal barriers to one’s receiving a green card in the US. One of such common barrier is criminal history. It does not have to be an actual conviction, actually. It does not have to be a felony conviction either. At times, certain misdemeanors may be more damaging to one’s ability to adjust status in the US than felonies.
If a person is convicted of a crime involving moral turpitude, a person is inadmissible in the US, unless the offense is a petty-offense (term of art) or falls under the youth exception; or a person qualifies for a waiver. (See 212h waiver blog) A person may also be removable and may not qualify for naturalization with such a conviction or admission.
First of all, as stated above, a conviction by itself is not necessary to get a person into trouble. An admission of the essential elements of criminal conduct is sufficient for Immigration purposes. Thankfully, the case law provides some guidelines as to when such admissions count for Immigration purposes: when a person was provided a definition or the crime in understandable terms; and the individual admitted all essential elements of the crime. Matter of K, 9 I&N Dec. 715(BIA 1962). Importantly such an admission must be before an Immigration officer. Also, Immigration authorities are limited to the record of conviction: they should not and cannot use the pre-trial, pre-confession ancillary documents. Note that the admission of crimes does not constitute a ground of deportability/removability, only inadmissibility. So, a green card holder who made such an admission cannot be removed based on it, as long as he/she does not travel overseas.
There are a couple of exceptions to the general rule of inadmissibility. The first one is the petty offense exception. It states that a person will not be regarded as inadmissible if the maximum penalty for the offense does not exceed imprisonment for one year, and if convicted, the individual was not stented to a term of imprisonment of more than six months.
The youthful offense exception is a bit more complicated. Here, a person has to be under 18 years of age when the crime was committed, and the release from confinement had to occur more than five years before the application for admission and the offenses involved had to occur more than five years prior to the date of application of admission. It does not matter that the conviction occurred when the applicant was over the age of 18, as long as the relevant crime was committed when the applicant was under the age of 18. If more than one crime was committed but all resulted in one conviction, the exception will not apply.
Finally, there is one more notable exception: conviction of the political offense. There are no clear guidelines on what will constitute a political offense, rather than a person seeking this exception will have to prove, perhaps, connected with an asylum claim, that he/she was convicted due to political reasons. The case law on the point is Matter of O’Cealleagh, 23 I&N Dec. 976, 980(BIA 2006). The case states that to qualify for the exception is a crime committed must be purely political. It can be fabricated charges, charges based on bias related to race, national origin, religious or political opinion; when criminal prosecution because just a tool to further oppress the dissent.
If you need help with adjustment of status or Criminal Immigration issues, please call to reserve a confidential consultation at 917-885-2261.