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Will TPS be extended?
April 16, 2017: 7:45 PM ET

By Patricia Elizee, Esq.

Non-US citizens, including lawful permanent residents, visa holders, and undocumented immigrants, in criminal proceedings need to be aware of subsequent immigration consequences. Depending on the final criminal conviction, the immigrant may be barred from ever naturalizing, or may be at risk of being sent to removal proceedings.

For immigration purposes, a conviction arises from a formal judgment of guilt entered by the court. It also includes circumstances where an adjudication of guilt is withheld, there has been a finding of guilt or the immigrant entered a plea of nolo contendere, and the judge has ordered some form of punishment, penalty, or restraint on liberty. Please also note that an immigration officer can find that an immigrant has been convicted of a crime where they have admitted sufficient facts to warrant a finding of guilt.

It is important that the individual and their criminal defense attorney understand the possible immigration consequences of pleading to certain crime. A simple plea may result in a bar to naturalization and may lead to a finding that they are inadmissible, or deportable. The best practice is before pleading to a criminal charge, to contact an immigration attorney to determine whether pleading to a lesser charge may result in better immigration outcomes.

To be eligible for Naturalization an applicant must show that they have good moral character during the statutorily prescribed period. Good moral character is considered character that measures up to the standards of average citizens of the community in which the applicant resides. A criminal conviction may prevent an applicant from meeting this requirement. An applicant for citizenship, based on a marriage to a US citizen, must show that they have good moral character for 3 years prior to submit their application. All other applicants must show that they have good moral character for 5 years. These prescribed periods include the time between filing the application and taking the oath of allegiance. Acts beyond these statutory periods can be considered only if the conduct during the statutory period does not indicate reform from the earlier period or if the conduct outside of the statutory period appears to be relevant to the applicant's present moral character.

The Immigration and Naturalization Act lists a series of convictions that are automatic and permanent bars to naturalization. These convictions include but are not limited to rape, sexual abuse of a minor, crimes of violence, theft offenses, prostitution, document fraud, forgery, and aggravated felonies. Other crimes are considered conditional bars to naturalization, meaning that the applicant was convicted of these crimes within the statutorily prescribed period. These convictions include but are not limited to controlled substance violations, false testimony under oath, polygamy, gambling offenses, or habitual drunkard. Where an applicant is convicted of a crime that does not amount to a permanent or conditional bar to naturalization, an immigration officer is able to take that conviction into account under their discretionary power.

A non-citizen can be referred to removal proceedings if they are found to be inadmissible or removal based on their criminal convictions. Lawful Permanent Residents and other visa holders are often stopped during their entry into the US. During their immigration inspection, an officer reviews their file and is able to issue a Notice to Appear in front of an Immigration Judge to face removal proceedings, based on their criminal convictions. Non-citizens that are arrested will also have their convictions reviewed by an immigration officer that has the discretion to initiate a removal proceeding. Where a state court conviction amounts to an aggravated felony or a crime involving moral turpitude, the immigrant will be at risk of deportation.

A conviction of an aggravated felony includes conviction of the crime itself, conviction of attempt to commit the crime, or conviction of conspiracy to commit the crime. Some offenses require an order of imprisonment of at least one year to constitute an aggravated felony for immigration purposes. A crime involving moral turpitude is one that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed between persons, to either individuals or society in general. Fraud, theft offenses, robbery, rape, child abuse, spousal abuse, incest, and aggravated assaults are a few examples of crimes involving moral turpitude.

A plea, an order, or withholding of adjudication in state court can have a great impact on a non-citizen's immigration status. A simple criminal case can lead to an immigrant having their naturalization application being denied or resulting in a referral to removal proceedings. Having an understanding of the immigration consequences before finalizing a strategy on how to handle a criminal issue is crucial.

Patricia Elizee is the managing partner of Elizee Law Firm, a firm focused on immigration and family law issues.
Ms. Elizee can be reached at 305-371-8846, 1110 Brickell Avenue, Suite 315, Miami, Florida 33131.

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