Criminal Records and Adjustment of Status

8 USC 1182 stipulates inadmissible aliens and another code 8 USC 1127 stipulates deportable aliens. When a foreign national applies for a lawful permanent residence, those elements enumerated in the codes affect the applicant’s eligibility for green card application. According to INA Section 245 (a), any applicant for Adjustment of Status shall not be inadmissible or deportable for any reasons as set forth in those codes. Therefore, if an AOS applicant has been arrested or convicted of any criminal activity, screening whether the crime falls on any of those criminal grounds for inadmissibility or deportation is very important. A few criminal activities among many others are explained hereunder for examples.

Anyone who is seeking to adjust their status in the US shall be neither inadmissible nor deportable. Under section INA §237 (a)(2)(A)(i), an foreign national or LPR is deportable if s/he is (1) convicted; (2) of a crime of moral turpitude; (3) committed within 5 years of admission; and is (4) convicted of a crime for which a sentence of one year or longer must be imposed.

The phrase “crime of moral turpitude” is not defined in the Immigration and Nationality Act (INA) The Eighth Circuit explained that the phrase “moral turpitude” refers to conduct which is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.

Entry is different from admission. The current law looks to whether the crime was committed within 5 years of admission, not entry. Admission is defined under INA §101(a)(13)(A).

The terms “admission” and “admitted” mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.

However, the definition under the statute is very ambiguous. At least one circuit has found that the unambiguous definition of admission under the statute means that the criminal act must occur within 5 years of the person’s lawful entry into the U.S and not within 5 years of his or her later adjustment of status. Thus admission under the statute is not defined as including Adjustment of Status but rather the prior lawful entry of the alien into the U.S. Shivaraman vs. Ashcroft. 360 F.3d 1142. (9 Cir, 2004)

A conviction exits where there has been a formal judgement of guilt entered by a court or if adjudication has been withheld, where all of the following elements are present; (1) a judge or jury has found alien guilty, or the person entered a plea of guilty or nolo contendere has admitted sufficient facts; and (2) the judge has ordered some form of punishment, penalty or restraint on the person’s liberty to be imposed.

“Guilty plea or finding of guilt, plus any imposition of probation, fine or jail will equal a conviction for immigration purpose”

Once a conviction exits, it is hard to erase or undo the conviction. Especially rehabilitative relief would not eliminate conviction for immigration purpose. In most states, state laws allow withdrawal of a plea or dismissal of charges because the defendant completed probation or other requirements, rather than because of some legal error. However, for immigration purpose, those relief would not work for erasing the conviction. Expungement of criminal records are lined with rehabilitative relieves for the same purpose.

As of January 1, 2018, state of California created pretrial diversion program which does not require a guilty plea. Therefore, deposition of a case would be rendered no conviction because there was no plea of guilty. However, State of Indiana is different. State of Indiana has pretrial diversion program too. But it requires Plea of Guilty as a prerequisite for the eligibility of the program.

Only certain cases qualify for pre-trial diversion in Indiana. In all cases, a defendant must admit responsibility for their crime to the satisfaction of the prosecutor and judge to be eligible for pre-trial diversion. Diversion is also only generally available to first-time, nonviolent offenders.

18 U.S.C §16 defines crime of violence as (a) “any offense that has as an element the use of attempted use or threatened use of physical force against the person or property of another, or (b) “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offenses.

The BIA’s definition of crime of violence includes any offense that is a felony and either: (a) the elements of the offense must be such that the use, attempted use, or threatened use of physical force is an element, or (b) that the nature of the crime -as evidenced by the generic elements of the offense- must be such that its commission ordinarily would present a risk that physical force would be used against the person or property of another irrespective of whether the risk develops or harm actually occurs. Matter of Sweetser, 22 I&N Dec.434 (BIA 1998)

An offense will be not a COV if it lacks a mens rea requirement for a conviction or if a person may be convicted simply on a showing of negligence or less than intentional conduct. Leocal v. Ashcroft, 543 U.S.1 (2004)

Usually a single DUI is not considered a crime of violence or moral turpitude because it lacks mens rea requirement. The US Supreme Court held in Leocal v.Ashcroft that DUI causing serious bodily injury under Florida law was not a COV because it require higher mens rea than the merely accidental or negligent conduct involved in a DUI offense”.

Again, in most cases, a single DUI without incurring physical harm to others tends not to be a crime of turpitude. However, if there are some aggravating factors with the DUI charge, the DUI charge can be construed as a crime of moral turpitude even though the statute under which the foreigner is charged requires only recklessness for conviction.

For example, in Hernandez-Perez, the 8th Circuit observed that although the court recognized that a drunk driving offense on its own “almost certainly does not involve moral turpitude,” it concluded that the statute’s requirement that the defendant “create a grave risk of death to another person,” was an aggravating factor sufficient to find moral turpitude. The defendant in the case was charged with an aggravated felony for DUI and one count of child endangerment.

A single DUI conviction or more previous convictions would not automatically trigger adverse immigration consequences. However, multiple DUI convictions can contribute to finding a noncitizen a habitual drunkard, it could adversely function to fail to establish good moral character which is one requirement to prove in applying for US citizenship. Also, it could be considered as inadmissible for a health-related issue – mental or physical disorder. Therefore, it is important to prove that the applicant has been fully rehabilitated/cured from the addition.

INA §237(a)(2)(E) set forth domestic violence as a deportable crime. It also sets out four bases for deportation relating to a domestic violence charge: conviction of a crime of domestic violence, a crime of stalking, or a crime of child abuse, neglect, or abandonment of, or being the subject of a judicial finding of violation of domestic violence stay-away order.

To be deportable for domestic violence under INA §237(a)(2)(E)(i), the person must be convicted for the crime and have qualifying domestic relationship to the victim. Here, it is noteworthy that the crime must be a crime of violence.

In the first place, 18 USC §16(a) defines crime of violence as “an offense that has an element the use, attempted use or threatened use of physical force against the person or property of another” Later, US Supreme Court in Sessions v. Dimaya, 138 S.Ct.1204 (2018) held that this definition is “unconstitutionally vague.” Under Dimaya, the code was revised accordingly and it’s current definition is;

18 USC §16 (a), the term of Crime of Violence

– An offense that has as an element the use, attempted use or threatened use of physical force against the person or property of another.

The interpretation of “force” can vary with jurisdiction. However, generally “force” here means violent, aggressive, intentional force. Court have interpreted §16(a) to exclude offenses that can be violated by an offensive touching, negligent conduct, DUI or DUI with injury, absent a special intent requirement and recklessness.

Under the new definition of crime of violence in Dimaya which is retroactively applicable, those who were prohibited from applying for Adjustment of Status or Naturalization for domestic violence can have different analysis than otherwise. Even those who were already placed in removal proceeding for the same conviction could file motion to reopen or reconsideration for the orders against them.

“Overcoming the will of the victim”

Following Dimaya, US Supreme Court in Stokeling vs. US (2019) that “if overcoming the will of the victim is an element of the offense, even a de minimis use of force, often called an “offensive touch” amounts to a Crime of Violence.

Indiana Code Title 35, §35-42-2-1.3(a)

Sec. 1.3. (a) Except as provided in subsections (b) through (f), a person who knowingly or intentionally:

(1) touches a family or household member in a rude, insolent, or angry manner;  or

(2) in a rude, insolent, or angry manner places any bodily fluid or waste on a family or household member;

commits domestic battery, a Class A misdemeanor.

7th Circuit court found that “Indiana misdemeanor law does not require violent force and requires only a touching and therefore does not necessarily require violence. Flores v. Ashcroft 350 F.3d 666 (7th Cir. 2003)

BIA held found that “a taking of property constitutes a “theft” whenever there is a criminal intent to deprive the owner of the rights and benefits of ownership, even if such deprivation is less than total or permanent.” Matter of Bahta, 22 I&N Dec. 1381 (BIA 2000)

Immigration law is stricter about Drug-related crimes than others. Especially it does not require mens rea or specific intent to render a drug charge to be considered an inadmissible or deportable crime.

There is, however, an exception for the inadmissibility or deportation based upon a drug-related offenses. That is, it is not a deportable offense for someone to be convicted of “ a single offense involving possession for one’s own use of 30 gram or less of marijuana” INA §237(a)(2)(B)(i).