Generally, an individual who has been convicted of, or admits to the commission of certain offenses that involve moral turpitude are ineligible under INA 212(a)(2)(A)(i)(I). The Immigration and Naturalization Act (INA) outlines individuals who are “inadmissible” into the United States. If a person is found inadmissible to the United States, they are unable to enter the United States or become a lawful permanent resident. This blog discusses inadmissibility for people who have been convicted of, or admit having committed, a “crime involving moral turpitude.”
What is a Crime Involving Moral Turpitude?
The Board of Immigration Appeals (BIA) defines a crime involving moral turpitude (CIMT) as a crime that is “inherently base, vile, or depraved.” Matter of Franklin, 20 I&N Dec. 867, 868 (BIA 1994). Courts have also held that CIMTs have two essential elements, including: “a culpable mental state and reprehensible conduct.” Matter of Ortega-Lopez, 27 I&N Dec. 382 (BIA 2018).
Common examples of crimes involving moral turpitude include:
- Theft
- Assault
- Robbery
- Burglary
- Domestic violence
- Prostitution (including solicitation)
- Rape
- Murder
- Perjury
- Drug offenses
- Bribery
However, determining what is and what is not a CIMT involves a complex legal analysis of the statute the person was convicted of.
Conviction of a Crime Involving Moral Turpitude
To be inadmissible for a CIMT, the law requires that you be convicted of that offense. Therefore, it is important to have your attorney review your criminal history to determine whether you were actually convicted. In some scenarios, if your case was dismissed without a conviction, then you cannot be found inadmissible. In other scenarios, you may have been asked to complete a court ordered diversion where entry of judgment was withheld. An immigration attorney can determine if you were actually convicted.
Admission of a Crime Involving Moral Turpitude
In some scenarios, you may not have been convicted of a crime, but you may have admitted to committing a CIMT. However, a simple admission is insufficient to support an inadmissibility finding. Under Matter of K, 7 I&N Dec. 594, 598, the BIA requires:
- The admitted conduct must constitute the crime’s essential elements;
- The applicant must have been provided with a definition and the offense’s essential elements prior to his admission; and
- The statement must be voluntary.
It is not uncommon for USCIS or consular officers to make a conclusion that someone “admitted” to a crime. However, in reviewing these files we often discover that they fail to follow the procedures as outlined in Matter of K.
How to Obtain a Green Card Even with a Crime Involving Moral Turpitude
If you were convicted of a crime involving moral turpitude or admitted to committing a CIMT, then there is still hope for obtaining your green card. There are several strategies you can pursue in obtaining a green card, even if you are potentially inadmissible under INA 212(a)(2)(A)(i)(I).
- Petty Offense Exception. Under immigration law, a CIMT can be excused if the following conditions are met:
- The person was convicted of only one CIMT
- The maximum penalty of imprisonment did not exceed one year, most likely, meaning the crime was for a misdemeanor and not a felony; and
- The term of imprisonment imposed did not exceed six months.
The petty offense exception under INA § 212(a)(2)(A)(ii)(II) requires a complex legal analysis but it is an important tool to use if someone has been convicted of only one CIMT.
- Argue it is not a CIMT. In some scenarios, a crime might sound like a CIMT, but the statutory elements involve lesser conduct that is not considered a crime involving moral turpitude. In these scenarios, a skilled immigration attorney who understands the impact of criminal convictions can successfully argue that you were not convicted of a crime involving moral turpitude.
For example, in California, under Penal Code sections 243(a) , 243(b), and 243(e) commonly known as “battery,” are not CIMTs. The argument is that liability under the criminal statute includes the minimum conduct of “offensive touching” and courts have routinely held that offensive touching is not considered a CIMT.
- Vacate Your Conviction. In some scenarios, it may be advisable to vacate the conviction. Vacating a conviction is more than an expungement, it invalidates the conviction for purposes of immigration. In order to vacate your conviction, you should discuss your case with a skilled immigration attorney who handles post-conviction relief.
In some states, including California, it is possible to vacate a conviction if it is shown that:
- The defendant did not meaningfully understand the consequences of their conviction, including any immigration consequences; or
- The court failed to advise the defendant that the conviction would lead to immigration consequences; or
- Their criminal defense attorney failed to advise the defendant that accepting a plea would result in deportation or immigration consequences.
- Juvenile Offenses. Crimes committed when the person was under 18 years old generally do not count for CIMT purposes, although any convictions involving drug sales or transportation can be considered under a separate ground of inadmissibility.
- Beware of Drug Offenses. A conviction of a drug offense is a CIMT, but it also makes you inadmissible on an entirely separate ground. Therefore, if you have a drug conviction, or even a drug related arrest, it is crucial to discuss your case with an immigration attorney, and these cases are especially challenging.
- Seek an I-601 Waiver to Waive the CIMT Grounds of Inadmissibility
An I-601 waiver, commonly known as an Application for Waiver of Grounds of Inadmissibility, can waive your inadmissibility under INA 212(a)(2)(A)(i)(I). The waiver functions as a sort of “forgiveness” and can be granted in situations where refusal would cause an extreme hardship to your U.S. citizen or lawful permanent resident relative (spouse, son, daughter, parent or fiancé). To establish extreme hardship to your relative, you must show the difficulties or hardships your family member would face if your green card was not granted. Some examples include:
- Impact of family separation
- Impact of relocation
- Economic impact of separation or relocation
- Medical or health related hardships
- Social and cultural impacts of separation or relocation
- Country conditions, such as civil strife, warfare, violence or lack of fundamental freedoms which would cause an extreme hardship
Waivers are extremely complex and require the assistance of a skilled immigration lawyer. It is important to note that the hardship discussed above relate to the US Citizen or green card holder family member, not the hardships that the applicant will face.
Waiver applications commonly include:
- Financial statements
- Medical records
- Country condition reports
- Declarations
- And other relevant evidence to support a finding of extreme hardship.