US Citizenship Application for Immigrants with Crimes

If you want to apply for your U.S. Citizenship, but you have a criminal record, you should be aware of the following options under US Immigration Law:

(a)    Petty offense exception

In general, any alien convicted of, or who admits committing acts which constitute a violation of any law or regulation of a State, the United States, or a foreign country relating to a controlled substance is inadmissible.

However, the petty theft exception to this general rule permits an alien to be admitted whenthe maximum penalty possible for the crime of which the alien was convicted did not exceed imprisonment for one year. Also, if the alien was convicted of such crime, and the alien was not sentenced to a term of imprisonment in excess of 6 months, then the petty offense exception will apply which will permit the alien to be lawfully admitted into the U.S.

(b)   Lujan federal first offender exception for drug conviction

The First Offender Act is a federal law that permits first-time drug offenders who commit the least serious type of drug offenses to avoid deportation which may follow a finding of guilt in such drug cases. Thus, the Lujan exception permits the court to sentence the defendant in a manner that prevents him from suffering any disability imposed by law on account of the finding of guilt.

When Lujan is applied, the finding of guilt is expunged and no legal consequences may be imposed as a result of the defendant’s having committed the offense. The rule prescribed in the First Offender Act has been applied in deportation cases regardless of whether the finding of guilt was obtained under the federal statute or under state law.

(c) State Expungement and Implication under Immigration Law

An expungement issued under a state law is analogous to the Federal First Offender Act (FFOA). Thus, a state expungement eliminates the effect of the conviction for immigration purposes.

Moreover, the protection against deportation that results from an expungement of first-time simple possession drug offenses has been applied to offenses expunged directly under the Act.

(d) Post conviction relief for conviction that doesn’t have a waiver

Your post-conviction relief options depend on the charge and the sentence you received. Generally speaking, criminal offenses can be placed into either a felony or misdemeanor category.  Felonies are crimes which carry a penalty of one year or more in jail, whereas misdemeanors carry a penalty of less than a year in jail.

There are many forms of post-conviction relief available to defendants after they have been found guilty of criminal offenses. A lawyer may appeal the sentence in order to challenge a final judgment in order to challenge a final judgment entered against a particular defendant. In an immigration setting, if there is a constitutional or procedural problem with the underlying conviction, the crime may no longer affect one’s immigration case.

Another option for post-conviction relief is to have an attorney file a petition for the court to reduce a felony charge to a misdemeanor. If the court grants the request, the conviction becomes a misdemeanor under most circumstances.

Expungement is yet another option which will be available only under certain circumstances. The availability of expungement depends on whether the original crime was committed by a minor or an adult and whether the conviction was for a misdemeanor or a felony. A court will also consider whether probation was granted.

(e) Deportable offenses

Deportation (a process that is also called “removal”) occurs when the federal government orders that a non-citizen be removed from the United States, typically after the violation of immigration or criminal laws.

The following crimes are deportable: murder, rape, stalking, burglary, commercial bribery, obstruction of justice, smuggling, failure to appear, sexual abuse of a minor, falsely claiming citizenship, drug trafficking, money laundering, and fraud.

(f) Crime involving moral turpitude and how that can trigger deportation

Section 237(a)(2)(A), INA provides that aliens who are “convicted” of crimes of moral turpitude within five years of “admission” to the U.S. and the criminal statute under which they are convicted provides that a “sentence of one year or longer may be imposed” is deportable. Thus, when an alien has committed an offense constituting moral turpitude, deportation proceedings will begin against the alien.

The most common elements involving moral turpitude are: (1) Fraud; Larceny; and (3) Intent to harm persons or things.

Although there are a significant amount of crimes which a judge would consider to involve moral turpitude, it can generally be stated that any misrepresentation including bribery, blackmail, extortion, embezzlement or false pretenses will definitely be considered a crime of moral turpitude which renders an alien deportable.

Contact Us: For more information on applying for citizenship with a criminal background, contact our law office.  We offer a free initial consultation to discuss your immigration concerns.