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Common misconceptions about criminal offenses and immigration related consequences

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Any criminal conviction will result in a negative immigration consequence such as being disqualified from an immigration benefit or exposure to losing a current lawful immigration status.

Not true. Only certain criminal offenses may result in an immigration consequence. Criminal offenses specifically designated under immigration law to make a noncitizen inadmissible or deportable, are the criminal offenses that will disqualify a noncitizen from an immigration benefit.

 

An offense that makes a noncitizen inadmissible is typically an offense that will disqualify the noncitizen from entry into the United States or eligibility for an immigration benefit. An offense that makes a noncitizen deportable applies to noncitizens present in the United States under a lawful status which exposes the noncitizen to losing his status and removal also known as deportation from the United States.

 

The general designation for problematic criminal offenses are criminal offenses considered Crimes Involving Moral Turpitude or Aggravated Felonies. There are other offenses such as drug related offenses Firearms offenses, Domestic Violence and offenses that are related to procuring prostitution as well as other offenses that are designated under law to result in either inadmissibility or deportability of a noncitizen.

We discuss domestic violence offenses here.

We discuss Firearms offenses here.

We discuss aggravated felonies here.

We discuss crimes involving moral turpitude here.

We discuss controlled substances here.

Now that marijuana is legal in many states, a past marijuana related conviction will not result in a negative immigration consequence

Not true. Legalization of marijuana is so far happening on a state level, but there is still no law passed federally legalizing marijuana. As a result, marijuana related offenses that have happened whether under state or federal law can still expose a noncitizen to negative immigration consequences. Under federal law, marijuana is still considered a controlled substance and since immigration specifies convictions of controlled substance offenses as offenses that can make a noncitizen inadmissible or deportable, it does not matter in this context that states are legalizing marijuana.

We discuss marijuana offenses related to noncitizens without status here.

We discuss marijuana offenses related to noncitizens with status here.

Where legalization may help is in avoiding a conviction a controlled substance offense related to marijuana in states where legalization has happened. However, it should be noted that in order to be considered inadmissible for violating a controlled substance law, the immigration law does not necessarily require an actual conviction.

There is a process to seek forgiveness of any past criminal offense to qualify again for an immigration benefit like a green card

This is partially true. Many, but not all criminal offenses may be subject to consideration for a waiver to forgive the offense and avoid the immigration consequence of the offense. However, not all crimes are waivable. Many waivers have specific eligibility criteria that may disqualify noncitizens who cannot meet the criteria and finally, meeting eligibility criteria does not automatically result in a waiver being granted. USCIS can still decide to deny a waiver application out of a matter of discretion.

We discuss waivers of inadmissibility based on criminal convictions here.

Immigration can’t use any past criminal offense that has been expunged to apply a negative immigration consequence

Not true at all. An expungement is typically a state court benefit granted by a judge to criminal offenders who met eligibility requirements related to rehabilitation and good behavior to have a conviction designated as having been dismissed. The problem is that in almost all cases where an expungement has occurred, immigration will not recognize this benefit for the simple fact that an expungement or case dismissal is not recognized after an accused noncitizen had pled guilty or was convicted for an offense.

This entry of guilt or conviction still stands under immigration law regardless of what a state court judge designates later. The only type of court relief that will cause a prior conviction to not be considered a conviction under immigration law are convictions that were vacated for some procedural defect. This means that the entry of guilt or conviction was invalidated, and the accused has no record of a conviction.

The problem is that many noncitizens who may have had their convictions vacated, may face defending the criminal accusation again potentially leading to a conviction anyway later. However, it also happens that after the conviction is vacated that the state prosecutor may dismiss the charge because the evidence against the accused is no longer available or may agree to the accused entering into a plea of guilty to a criminal charge that has no immigration consequence.

Finally, it should be remembered that some criminal offenses can still lead to a finding of inadmissibility if there is an admission to the offense.

Better than relying on rumors, it is always better to seek the guidance of an immigration attorney to understand if past criminal history can have a negative immigration consequence.

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This website and blog constitutes attorney advertising. Do not consider anything in this website or blog legal advice and nothing in this website constitutes an attorney-client relationship being formed. Set up a one-hour consultation with us before acting on anything you read here. Past results are no guarantee of future results and prior results do not imply or predict future results. Each case is different and must be judged on its own merits.

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