IS IT SAFE TO APPLY FOR A GREEN CARD IF I HAVE A CRIMINAL RECORD?
Going to see your immigration lawyer can be a lot like going to see your doctor – especially when there is something you are worried about. You know that it could be serious or it could be nothing at all. You think maybe it would be better if you don’t find out. But you know, deep down inside, that you need to find out. You know that, if you continue to ignore it, what started as something small may grow into a major problem.
When it comes to immigration, that “something” is often a criminal record. It is like having a mysterious lump under your skin. It is natural to jump to conclusions. You may be tempted to turn to Google, or YouTube, or even TikTok for answers. But you know that it is time to seek professional help.
Here is the truth: some criminal convictions have serious immigration consequences. But sometimes a criminal record is benign – or at least treatable.
This is the first of three articles that I will publish on how your criminal record can affect your immigration case. This article covers the most important legal issues to consider if you have a criminal record and are thinking about applying for a green card. The other articles will cover important issues for those who are facing deportation proceedings and for those who have pending criminal cases.
All three articles will take a somewhat deep dive into the legal issues that apply in each situation. It is important that you understand these concepts in order to make an informed decision. All I ask is that you do not attempt to diagnose or treat yourself. The short article is no substitute for the advice of an experienced immigration lawyer who has spent years studying these concepts.
The Criminal Grounds of Inadmissibility
When you apply for a green card, you apply for admission to the United States as a lawful permanent resident. This is true when you apply for an immigrant visa outside of the U.S. It is also true when you are living in the U.S. and apply for adjustment of status. Section 212 of the Immigration and Nationality Act (INA) includes many grounds for finding that an applicant is inadmissible. The criminal grounds are found in Section 212(a)(2).
Here are the crimes that trigger inadmissibility:
- Crimes involving “moral turpitude”
- Multiple criminal convictions with total confinement of 5 years or more
- Drug possession
- Drug trafficking
- Prostitution and related crimes
- Human trafficking
- Money laundering, and
- Certain crimes committed by foreign government officials
- Certain crimes committed by those who asserted immunity
The first item on the list may sound a little strange. What exactly is a crime involving moral turpitude? You will not find a definition in any statute or regulation. Courts have grappled with the meaning of this terms for decades and it is a concept that continues to evolve. In basic terms, a crime involving moral turpitude is one that involves an act that is inherently wrong. The most common examples are crimes involving intentional harm to another (such as murder, rape, robbery, or assault) and crimes involving dishonesty (such as fraud, theft, or forgery). On the other end of the spectrum are laws that prohibit conduct which, although not inherently wrong, must be regulated to avoid a risk of harm to others. These regulatory offenses are not crimes involving moral turpitude.
This distinction is important. It means that many crimes that we would normally consider to be serious do not prevent someone from obtaining a green card. For example, many firearms offenses in Pennsylvania are felonies, with some punishable by up to 10 years in prison. But a firearms offense is a regulatory offense. It is not inherently immoral and so it is not a crime involving moral turpitude. And it is not listed elsewhere in Section 212(a)(2). Therefore, one who is convicted of illegally possessing a firearm is not automatically disqualified from obtaining a green card. Going back to my doctor visit analogy, the conviction is benign.
Well, mostly benign. You should know that, even if a conviction does not make you ineligible for a green card, the immigration officer may still consider it. The immigration officer has a lot of power. The officer can deny your application if he or she decides you are not “deserving of a favorable exercise of discretion.” In other words, the immigration officer can withhold your application if he or she decides that you do not deserve to have one. This is why it is so important to have a good immigration lawyer by your side. You need someone who can prove not only that you qualify, but also that you are a deserving candidate. We do that by telling your story. We do that by showing that your record does not define you as a person.
Diagnosing a Conviction Through Legal Analysis
Some crimes are obviously benign. They don’t look anything like the crimes mentioned in Section 212(a)(2). For other crimes, it is not so obvious. Take, for example, the Pennsylvania crime of simple assault. You see the word “assault” and you may be tempted to think that it is the type of crime that involves an intent to harm another person. I have explained that those types of crimes usually disqualify you from getting a green card. But, it turns out, that most convictions for simple assault are benign. How can that be?
The answer is that diagnosing convictions involves a complicated legal analysis. It involves digging into the elements of the offense and comparing those elements to the elements of the crime described in the INA. If those elements do not match, the conviction may be benign. The Pennsylvania crime of simple assault is broader than the crime described in the INA. That is why you may be able to get a green card even if you have been convicted of simple assault.
Curing a Conviction with a 212(h) Waiver
Now let’s talk about those convictions that are harmful to your immigration health. These involve those crimes that are listed in Section 212(a)(2) and there is no legal argument that can make them go away. Even if you have a conviction for one of those crimes, there may still be hope. The conviction may not be benign but it may be treatable.
The cure is something called a “waiver.” Section 212(h) allows an immigration officer or a judge to waive the application of Section 212(a)(2) when certain conditions are met. For example, an applicant who has been convicted of a crime involving moral turpitude can obtain a 212(h) waiver by proving that being denied a green card would result in an extreme hardship to a spouse, parent, son or daughter who is either a U.S. citizen or green card holder.
Proving an extreme hardship is the immigration equivalent of brain surgery. It is a high burden. Whenever someone is denied admission to the United States, it will likely cause some hardship for the family. An extreme hardship is more than that. Proving that there would be an extreme hardship means proving that there are special circumstances that would increase the hardship beyond what normally occurs.
The U.S. Citizenship and Immigration Services (USCIS) Policy Manual lists 38 factors for an officer to consider when deciding whether the applicant’s qualifying relative would experience an extreme hardship. These factors fall into five broad categories: family ties and impact, social and cultural impact, economic impact, health conditions and care, and country conditions. This list is not exhaustive. An immigration officer is allowed to consider other factors even if they are not listed in the Policy Manual. If you apply for a 212(h) waiver, your attorney will thoroughly interview you and your qualifying relatives and gather evidence to support your claim that the denial of your application would be unusually hard for them.
A Case Study
Here is a typical example: Victor is living in the U.S. with his wife, Maria, and their daughter, Zoe. Maria is a naturalized U.S. citizen and Zoe is a U.S. citizen by birth. Seven years ago, when Zoe was a baby, Victor was out of work and the family was struggling financially. Out of desperation, Victor tried to steal a $52 package of baby formula from a local grocery store. He was caught and charged with shoplifting. He accepted full responsibility for his actions and entered a plea of guilty. The judge sentenced him to 6 months of probation.
Victor would now like to file for adjustment of status to lawful permanent resident based on his marriage to Maria. But the crime of shoplifting involves dishonesty, which makes it a crime involving mortal turpitude. Victor’s conviction makes him inadmissible according to Section 212(a)(2) of the INA. But this conviction is treatable. Victor is eligible to apply for a 212(h) waiver. He has two qualifying relatives: his wife, Maria, and his daughter, Zoe. Both are U.S. citizens. Victor would have to convince the officer that the denial of his application would result in an extreme hardship for either Maria or Zoe.
Victor has a difficult choice to make. He may decide to go forward with his application, knowing that, if the 212(h) waiver is denied, his case may be sent to an immigration judge for deportation proceedings. On the other hand, he may decide to not file his application. But, if he continues living in the U.S. without lawful status, he would not be permitted to work and he could be deportation at any time. Victor would be taking a risk either way.
So should Victor apply for adjustment of status? That is not for me to decide. It is Victor’s decision. It is important that Victor not only understand his choices but the risks involved with each.
If Victor came to me for advice, we would begin with a consultation. We would discuss his case in detail. I would explain what it would take for his application to be approved. We would discuss the hardship that Maria and Zoe would experience if he had to the leave the U.S. without them and also the hardship that they would experience if they went with him. He may ultimately decide to file his application or he may decide against it. Either way, he is better off for having taken the step to seek legal advice.
