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Criminal Inadmissibility of Foreign Nationals

Long-term permanent residents of the U.S. and newly arrived temporary visitors are equally subject to refusal of admission and removal for certain criminal acts.

This article briefly addresses the U.S. immigration consequences of some ordinary crimes, whether committed in the United States or elsewhere in the world. It does not address more serious criminal or political offenses, nor does it replace the benefit of consulting with a qualified immigration attorney. Criminal behavior can have a very serious impact on an individual’s ability to immigrate to the United States.

A foreign national is inadmissible to the United States if he or she is convicted of or admits to committing acts that constitute the essential elements of: (1) a crime involving moral turpitude (CIMT), or an attempt to conspiracy to commit such a crime; or (2) a violation relating to a controlled substance. INA §212(a)(2)(A)(i)(I & II). Note that an individual does not need to have been convicted of the crime to be inadmissible on these grounds. Simply admitting to having committed the crime or the essential elements of the crime is sufficient to make the individual inadmissible. Further, in some circumstances, an expunged foreign conviction may serve as a ground of inadmissibility. See Danso v. Gonzalez, 489 F.3d 709 (5th Cir. 2007). However, a foreign conviction rendered in absentia cannot serve as a ground of inadmissibility. 22 CFR § 40.21(a)(4).

  1. Crimes Involving Moral Turpitude (CIMT)

A CIMT “refers generally 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.” Matter of Franklin, 20 I&N Dec. 867, 868 (BIA 1994). A CIMT is “inherently wrong” and the foreign national must have acted with some knowledge of the wrongful nature of the act. Matter of Short, 20 I&N Dec. 136, 139 (BIA 1989). CIMTs include common crimes against the person, such as abuse and rape, as well as common crimes against property, such as some types of burglary and arson. Crimes that contain an element of fraud, such as embezzlement, tax evasion and perjury, may also be classified as CIMTs.

Examples of CIMTs:

  • Crimes against the person: abandonment of a minor child, some forms of assault, bigamy, contributing to the delinquency of a minor, gross indecency, kidnapping, lewdness, some forms of manslaughter, mayhem, murder, pandering, aggravated assaults, carrying a concealed weapon with intent, disorderly conduct, aggravated driving while under the influence (DUI), restraint, robbery, and threats/terrorist threats. 9 FAM 302.3-2(B)(2)(c)(3).

  • Sexual offenses: incest (if the result of an improper sexual relationship), possession of child pornography, prostitution, rape. 9 FAM 302.3-2(B)(2)(c)(3).

  • Crimes against property: crimes involving fraud, as well as crimes that involve “inherently evil intent,” such as arson. 9 FAM 302.3-2(B)(2)(c)(1).

Examples of crimes that are not CIMTs:

  • Crimes against the person: some forms of assault, libel, some forms of manslaughter, riot. 9 FAM 302.3-2(B)(2)(c)(3).

  • Sexual offenses: illegitimacy, mailing obscene letters, and indecency. 9 FAM 302.3-2(B)(2)(c)(3).

  • Crimes against property: (where there is no intent to commit a CIMT) damaging private property, breaking and entering, passing bad checks, possessing stolen property (no guilty knowledge), joyriding, and juvenile delinquency. 9 FAM 302.3-2(B)(2)(c)(1).

EXCEPTIONS:

A foreign national may overcome inadmissibility to the United States if he or she:

  • Committed the CIMT while under 18 and more than five years before the date of application for admission to the United States. If imprisoned, the foreign national should also have been released at least five years before the date of application for admission. INA §212(a)(2)(A)(ii)(I).

  • Committed a “petty offense,” meaning the maximum possible penalty for the crime did not exceed imprisonment for one year. If the foreign national was convicted of the crime, he or she must not have been sentenced to a term of imprisonment in excess of six months. INA §212(a)(2)(A)(ii)(II). The petty offense exception does not apply if a foreign national has been convicted of or admits to more than one CIMT. Matter of Jurado, 24 I&N Dec. 29, 34-35 (BIA 2007).

  • Was wrongly prosecuted as a result of political repression against racial, religious, or political minorities. INA § 212(a)(2)(A)(i)(I). 

  1. Controlled Substance Offenses

A controlled substance offense is a violation of or a conspiracy to commit a violation of a foreign, state, or federal law or regulation relating to controlled substances. INA § 212(a)(2)(A)(i)(II). A controlled substance offense includes crimes of use, possession, and distribution, as well as related offenses, such as possession of drug paraphernalia or distribution of counterfeit substances. See Matter of Martinez Espinoza, 25 I&N Dec. 118, 120-22 (BIA 2009). Controlled substances are listed at 21 C.F.R. § 1308.1. 

EXCEPTIONS:

A foreign national may still be admissible to the United States if he or she:

  • Committed a crime related to the simple possession or use of a controlled substance, provided the act occurred while he or she was under 18. 9 FAM 302.4-2(B)(5).

  • Committed the crime of simple possession of 30 grams or less of marijuana. For this exception to apply, the foreign national must submit and receive an approval of Form I-601, Application for Waiver of Grounds of Inadmissibility, from the United States Citizenship and Immigration Services (USCIS). INA § 212(h).

A foreign national convicted of two or more offenses, whether CIMTs, controlled substance or other offenses (other than purely political offenses), with an aggregate imposed sentence of five years or more is inadmissible. INA § 212(a)(2)(B). Suspended or withheld sentences are classified as imposed sentences.  INA § 101(a)(48)(B).  

Acts that may constitute CIMTs or drug offenses may render a foreign national inadmissible to the United States. Thus, all acts that may possibly be deemed criminal in nature should be fully disclosed to immigration counsel at the earliest opportunity.

© Copyright 2013 - 2022 Miller Mayer LLP. All Rights Reserved.National Law Review, Volume VII, Number 173
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About this Author

Associate

Xiayue (Summer) Yin is an Associate in Miller Mayer’s Immigration practice group.

Ms. Yin concentrates her practice on employment-based immigration law focusing on the EB-5 preference category. She advises on individual EB-5 source of funds and business documentation for investors primarily from China, utilizing her experience as a Chinese corporate attorney. Ms. Yin’s fluency in Mandarin and commercial experience facilitates communication with Miller Mayer’s numerous Chinese clients and representatives. Ms. Yin also assists Miller Mayer’s...

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Hilary T. Fraser, Miller Mayer, work authorizations attorney, immigration benefits Lawyer
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Hilary T. Fraser has practiced immigration law at Miller Mayer since 1991.

Ms. Fraser represents EB-5 families, physicians, engineers, teachers, and other highly trained professionals, as well as hospitals, colleges, IT companies, and religious organizations, in pursuit of work authorizations and other immigration benefits. Ms. Fraser has presented at national conferences on immigration office staffing and U.S. immigration agency practice. Prior to law school, Ms. Fraser lived in China and New York City, where she worked as a teacher and writer...

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