PUBLISHED June 7, 2016
In the post 9/11 world, non-U.S. citizens with criminal records seeking to reenter the U.S. following international travel face the distinct possibility their inspection process at the airport will be delayed, or even continued for additional scrutiny before an upper level immigration official at a later date. First, the databases used by immigration officials in screening individuals seeking entry into the U.S. have grown in sophistication. More active intelligence sharing by and between law enforcement agencies, both local and federal, means more information is available to more officials. In sum, if you are not a U.S. citizen and have a criminal record, be ready to be asked about it, and even produce court documentation reflecting the outcome of those criminal proceedings.
What type of criminal case will draw immigration inspection scrutiny?
Practically any criminal arrest, whether in the U.S. or abroad, very well may prompt questioning by the U.S. Department of Homeland Security/Customs and Border Protection officer overseeing the non-citizen’s inspection process. The inspector will want to know details regarding the exact nature of the arrest as well as the criminal court outcome. Sometimes the criminal case outcome will be listed in the database, other times not. Additionally, the airport inspector may only be able to see what criminal charges arose as a result of the arrest, but not necessarily the lesser, more benign, charge the person may have pled guilty to.
What type of criminal convictions are inconsequential from an immigration law perspective?
With some exceptions, a single conviction for driving under the influence, or other misdemeanor, and where no jail time is part of the criminal sentence, will cause no negative immigration consequences or hold up the inspection process. Among the exceptions to this general rule are cases that involve drugs, child pornography or convictions involving jail time of 6 months or more. Furthermore, a non-citizen who accumulates more than one misdemeanor conviction, may face significant immigration consequences, and even if that second conviction, on its own, may have presented no such consequences.
What type of criminal convictions can pose major problems during the inspection process and/or negatively impact a non-citizen’s immigration status?
One or more felony convictions for a “crime involving moral turpitude” (examples include – theft, robbery, murder, fraud, felonious assault/battery, or similar offenses premised on “a depraved, immoral or reprehensible act”) may present an obstacle in the inspection process and lead to the non-citizen being placed in removal proceedings, or even placed in immigration detention. The same holds true for convictions relating to drug possession or distribution, and sometimes even if the drug related offense is only for a misdemeanor.
What are negative immigration consequences?
First, a non-citizen may be deemed “removable” from the U.S. and be placed in removal proceedings. Further, certain criminal convictions may lead to the non-U.S. citizen being subject to “mandatory detention”, where he/she is held in immigration custody throughout the time removal proceedings are pending.
But just because a non-citizen is placed in removal proceedings, does not mean they will be ordered removed and deported from the U.S. Indeed non-citizens have the right to assert a defense in removal proceedings and have their previous immigration status restored, although the availability or strength of that defense will depend on the nature of the non-citizen’s status here (green card, or temporary nonimmigrant), the length of their residence in the U.S., the type and number of U.S. relatives they have, and in some cases, whether they have a fear of returning to their home country.
The morals of the story:
1) Non-citizens who are facing criminal charges should always consult an immigration lawyer before pleading guilty to any criminal charge. That way, any immigration consequence that may come into play, will not be a surprise.
2) Non-citizens with a criminal conviction should investigate, before travelling internationally, whether that criminal offense can potentially pose a problem for their reentry into the U.S.
PUBLISHED June 7, 2016– “IMMIGRATION LAW FORUM” Copyright © 2016, By Law Offices of Richard Hanus, Chicago, Illinois