Involvement in a criminal case in the United States can seriously affect maintaining a visa, renewing a green card, applying for citizenship, and even removal proceedings. Even offenses that seem minor can carry serious consequences under immigration law, so the immigration-law impact must be considered from the earliest stage of a criminal case.
Criminal Classifications Under Immigration Law
Crimes Involving Moral Turpitude (CIMT)
This category includes fraud, theft, assault, sex offenses, and similar crimes. A CIMT conviction can be:
- A ground for visa denial
- A ground for inadmissibility
- A failure to meet the "good moral character" requirement for citizenship applications
- A ground for removal (if committed within 5 years of admission)
Aggravated Felonies
This category includes murder, drug trafficking, sexual assault, fraud involving $10,000 or more, and theft offenses with a sentence of one year or more. Aggravated felonies carry the most serious consequences under immigration law:
- Nearly all forms of relief from removal are barred
- Permanent bar on reentry after removal
- Even green card holders are subject to removal
- Permanent ineligibility for citizenship
Drug-Related Offenses
Nearly all drug-related offenses, including possession of small amounts, are grounds for removal. Even though New York State has legalized marijuana, it is still treated as illegal under federal immigration law.
Situations Commonly Faced by the Korean Community
DUI/DWI
A simple DUI conviction is not, by itself, a CIMT, but it can become a problem under immigration law when combined with repeat offenses, an accident, or driving while the license is suspended. In some cases it can be a ground for inadmissibility.
Domestic Violence
A domestic violence conviction is a ground for removal. This includes assault against a spouse or child, stalking, and violation of a protective order.
Theft/Shoplifting
Even though it may seem minor, it can be classified as a CIMT under immigration law. This is especially problematic when renewing a visa or applying for citizenship.
Immigration-Law Considerations When Handling a Criminal Case
- Plea Bargain: The criminal defense attorney and the immigration attorney need to work together to negotiate a plea that minimizes the immigration-law impact
- Deferred prosecution/conditional discharge: Some programs allow a defendant to avoid a formal conviction, but immigration law may still treat it as an "admission of guilt"
- Expungement: Even if a record is expunged under state law, it may still be considered valid for immigration purposes
Frequently Asked Questions
Q. I was arrested but not charged. Does this have any effect?
Generally, an arrest alone, without a conviction, has no direct effect under immigration law. However, the arrest record must be disclosed on visa applications, and USCIS may conduct additional review.
Q. I'm a green card holder with a criminal record. Does that mean I can't become a citizen?
It depends on the type of crime and when it occurred. For a CIMT, you may be able to apply for citizenship once 5 years have passed since the conviction. An aggravated felony results in permanent ineligibility.
When facing a criminal case, the immigration-law impact must be considered together with it. If you need to consult about a criminal record and immigration issues, please contact the office of Attorney Jin D. Cho.
Phone: (718) 353-2699 | Email: jd@choattorneys.com