Overcoming potentially negative discretionary decisions based on past criminal history when applying for a green card

By November 16, 2020Immigration
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I am interested in applying for a green card, but I want to know if my past criminal history will affect my case?

Any past criminal history has the potential of affecting a green card based application process whether the process is to obtain the green card within the US known as the adjustment of status process or to obtain the green card from abroad through consular processing. You can review our discussions on the processes to obtain a green card by clicking here.  How past criminal history may affect your green card application and whether it is recommended to apply for a green card involves a thorough analysis.

The first obvious step is to determine whether the past criminal history automatically disqualifies you from a green card. If the past criminal history disqualifies you from a green card, then the next step involves determining whether there is any waiver available to waive or forgive your conviction making you eligible for the green card. The last part of the analysis then looks at whether it is worth applying now for a green card or whether allowing some time to pass would be recommended before applying to increase the chances of approval.

You can read our discussion on the various types of available waivers by clicking here.

Since my criminal history is comprised of 2 driving while intoxicated convictions and a battery conviction from last year, it doesn’t look like these are the types of crimes considered to be crimes involving moral turpitude or aggravated felonies that will disqualify me from a green card.

At first glance It may appear that you may not be disqualified, but we should look at these convictions with some more detail to be sure. Although the driving while intoxicated convictions are not automatically disqualifying crimes, the battery conviction may automatically disqualify you if it is considered a crime involving moral turpitude or if it is considered an aggravated felony.

The name of the crime does not necessarily define whether it is an aggravated felony or crime involving moral turpitude. A battery is considered to be an aggravated felony if it is a crime of violence and  you received a sentence of one year or more even if most or all of the sentence was suspended. Therefore, if you did receive a sentence of one year or more, it is important for an immigration attorney to look at the elements of the conviction statute to determine whether it is a crime of violence to determine whether it is a disqualifying aggravated felony. You can view our discussion on aggravated felonies by clicking here.

Assuming that the battery conviction is not an aggravated felony, the battery conviction could still disqualify if it is considered a crime involving moral turpitude. Determining crimes of moral turpitude are more difficult to determine, but usually include elements of intention to commit a violent injury or the victim being considered to be a vulnerable individual or part of your close family. You can view our discussion on the crimes involving moral turpitude by clicking here.

In the event that the battery conviction is either a crime involving moral turpitude or an aggravated felony disqualifying you from the green card the next step is to determine whether there is an available waiver to forgive the conviction. Fortunately, as we have stated, there are waivers for both types of crimes which we have discussed and which you can view by clicking here.  

I can confirm that the battery conviction was last year and stemmed from a fight where there were no injuries and I was given a suspended sentence of 30 days with 1 year of probation.

It doesn’t appear then that the battery will be considered a crime involving moral turpitude since it doesn’t appear you would be convicted of a crime with elements of intent to cause a violent injury. It also doesn’t appear to be an aggravated felony even if considered a crime of violence since your sentence was less than 30 days. You still may want an attorney to look at the conviction to confirm these facts and to confirm that it is not a crime involving moral turpitude to discern whether a vulnerable victim was an element of the statute. Remember that USCIS looks at the definition/elements of the statute of conviction and not the facts of the incident to determine whether a conviction is a disqualifying crime. If you are not disqualified, then USCIS will proceed to look at the actual facts of the incident in the case to determine whether you will reoffend, and whether your actions were so egregious that you do not deserve the green card.

Furthermore, don’t forget that the driving while intoxicated convictions also factor in the determination by the USCIS officer on whether to grant you a green card. Therefore, a further delay in applying maybe warranted depending on when your driving while intoxicated convictions occurred and/or the facts surrounding the driving while intoxicated offenses.

Would it be advisable to apply for my green card with my past battery conviction, my first driving while intoxicated conviction happening 10 years ago and my last driving while intoxicated conviction happening about 4 years ago?

Understand that even though the driving while intoxicated convictions are not disqualifying crimes, USCIS places great emphasis on these crimes because they have the potential of placing another person’s life at risk. Therefore, it is advisable to put as much time as possible between your last conviction and the application. Same could be considered for the battery conviction if there are bad facts demonstrating egregious behavior in the events surrounding the battery.

Establishing some years of good behavior between the last conviction and your application is only part of the potential solution in overcoming your past criminal history. An application with a good probability of approval will include evidence indicating that you are remorseful of your actions and that you have rehabilitated from your past criminal behavior. With respect to the driving while intoxicated conviction, even if you think you don’t have a drinking problem, you should understand that the immigration officer reviewing your application will default to thinking that you do simply based on the fact that in order to satisfy your urge to drink, you were willing to put other people’s lives at risk and break the law.

Similarly, even if you think you are not a violent person, it is likely an immigration officer will think that you are or have some inclination of you being a violent person by simply participating in a fight. As a result, the officer wants to see that you understand the potential consequences of your past bad acts and that you have taken actions showing reformation of your way of thinking and possibly lifestyle to avoid these bad acts in the future. Combined with years of good behavior, evidence of rehabilitation and reformation should result in the officer believing you have overcome your problem and that you are deserving of citizenship.

Most often, non-disqualifying criminal behavior and or convictions are not necessarily fatal to a green card application, but they cannot be taken for granted. Assuming the criminal history is not one that will disqualify you, work must be done regardless to demonstrate that it was behavior or a pattern of behavior that you have overcome and will not participate in again. Depending on the underlying facts of your conviction, an attorney will advise you if it is better not to apply at all or to wait more time before applying.

In your case, even though the last driving while intoxicated conviction happened around 4 years ago and it appears that your battery conviction is neither a disqualifying aggravated felony or crime involving moral turpitude, the battery conviction still creates some problems. First, as previously stated if the facts of the case seem pretty bad, such bad acts may result in the officer deciding to not grant your application. For example, if the facts show more of a mutual combat situation where there were no injuries, then you can consider filing sooner rather than later. However, if it appears that you were trying to significantly hurt the victim, then you may also want to put some time in between your battery conviction and application to demonstrate subsequent good behavior and rehabilitation. It maybe possible for you to obtain your green card with your past criminal history, but again, an experienced immigration attorney will be able to advise you whether your application can be filed sooner or better to file it later or in how to prepare the presentation of your application before USCIS.

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