New York Lawyer's Legal Updates

Impact Of Criminal Conviction Of Domestic Violence On Adjustment Of Status

Author: US Green Card Lawyer Alena Shautsova

A non- US citizen who has a criminal conviction in the United States may still be eligible to adjust status to one of a permanent resident. Every criminal conviction must be analyzed separately and together with the any other criminal convictions that an alien has.

When applying for an adjustment of status, a person is seeking admission to the Unites States. See Matter of Koljenovic, 25 I&N Dec. 219, 221 (BIA 2010) (explaining why adjustment of status is an admission even though it is not included in the definition of the term “admission” in section 101(a)(13)(A)). When applying or an adjustment of status, an applicant has a burden of proof that he/she is admissible. Section 101(a)(13) of the Act impacts the burden of proof placed on an applicant for adjustment by sections 240(c)(4)(A)(i) and 245(a). The burden is also on the applicant in case of “re-adjustment” too.

The Immigration and Naturalization Act (“INA”) Section 212 provides a list of convictions that make a non-US citizen inadmissible, and thus bar the possibility of adjustment of status. Section 237 of the INA provides grounds of deportability for those non- US citizens who are already admitted to the US. It is important to understand, however, that a person who entered the US on a visa, was in fact admitted to the US. But when he/she is applying for an adjustment of status, his/her status will be checked against the INA 212 list.

It is a curious fact that crime of “domestic violence” does not exist. Rather, a State statute provides a list of crimes that, if a convicted person was related to the victim, will be considered a crime of domestic violence. Further, a conviction of crime of domestic violence is not on the list of crimes making an applicant inadmissible. It is on the list of offences making a person deportable. This being said means that technically, a person seeking adjustment of status in the United States who had been previously convicted of a crime of domestic violence, may, upon the discretion of the immigration authorities, be granted an adjustment of status. However, it is also true that the Immigration authorities may deny application for adjustment if the person is deportable.

That is why, if somebody is deportable but not inadmissible, it is very important to present a number of positive factors while applying for the adjustment of status. The positive factors will help the adjudicator to render a favorable decision on the adjustment of status application.

If you have immigration concerns, consult a skilled Immigration attorney at 917-885-2261 and find out about your options.

18 December 2012
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