To have committed a crime for purposes of United States Immigration law, you need to have had a final judgment of guilt found against you. Nolo contendere pleas and guilty pleas count as a conviction or “having committed a crime” in the United States for purposes of Immigration Law. Similarly, if you admitted to the facts that constitute a crime and you were then given probation or a rehabilitative program–whether or not successful completion of the program would lead to the crime being dismissed, expunged, or removed from your record–you have committed a crime for purposes of the U.S. Immigration and Nationality Act. However, if you went to trial and were found innocent, or the conviction was set aside because of a substantive or procedural defect, then this would not qualify as having committed a crime for purposes of Immigration Law. So if you were convicted of a crime for purposes of United States Immigration Law, there are many more factors to consider. Let’s go over a couple of additional exceptions first.
- If you committed the crime as a juvenile (meaning you were under 18), then generally you will be okay for purposes of U.S. Immigration Law. However, if you were tried as an adult then the crime will still be problematic.
- You received a full unconditional pardon from the President of the U.S. or by the Governor of a state. In this rare case, the conviction will not count for purposes of immigration law, FOR SOME CRIMES. It will be important to consult with an attorney or do more research if this is your situation.
Assuming these exceptions do not apply to you–and even if they might, it’s going to be very important for you to access the exact crime(s) that you were convicted of. You can ask the clerk of court in the court where you were convicted for a “disposition” of your case for a small fee, so as to find this information. For purposes of United States Asylum law, only some crimes will make you ineligible. The language in the Asylum Law, says that those people convicted of “Particularly Serious Crimes” will be ineligible. In addition to some other crimes, this term includes “aggravated felonies” committed as defined by the Immigration and Nationality Act section 101(a)(43). In this part of the Immigration law, there is a vast list of crimes that will make you ineligible for asylum, and potentially a candidate for other immigration consequences such as deportation or ineligibility for relief from removal. The full list of crimes can be found here, but it basically includes some sexual offenses, certain theft and fraud offenses, certain financial crimes, some tax crimes, many firearms and drug offenses (some marijuana possession crimes are excluded however), various trafficking offenses, and certain “crimes of violence” among many, many other listed crimes. It is important to emphasize that not all of the crimes on the list are in actuality, felony offenses. So just because the crime you were charged with is a misdemeanor, does not mean you are definitely off the hook.
The good news is that there is some room for lawyers to argue and advocate on behalf of their clients that the crime committed does not fall within the criteria on the list. If you believe your crime might be on this list, it would be important to talk to an experienced Immigration Attorney to get their professional opinion. Additionally, if the crime was committed in a foreign country and you finished serving your imprisonment more than 15 years ago, you may also be eligible to apply. Or, if the crime can be characterized, or thought of as a “political offense” you may be eligible, but the advice of an experienced attorney in regard to that determination would be extremely important. In the U.S. we really value political freedom, so if you were incarcerated for your political beliefs, you may still be eligible for asylum–and that may actually be a base for applying for asylum.
If the crime you committed is not on this list of aggravated felonies described above, that is generally good news, but it is still possible for the crime to make you ineligible for asylum. “Violent or dangerous crimes” can be very bad news for an asylum applicant, and this area of law is very complicated so an attorney should be consulted. Additionally, it is important to emphasize that the immigration Judges and Asylum Officers can in their discretion, deem a certain crime to be “Particularly Serious” (in the language of the statute), and this determination could make you ineligible.
Also in the law, there is something you should be wary of more generally as an immigrant or foreign alien in the United States. In immigration and criminal law, there is a term for certain crimes, known as Crimes Involving Moral Turpitude. It is very hard to give this term a precise definition, but it basically means that the crime was inherently bad and contrary to accepted ideas of morality, and what is right and wrong. Many of these CIMTs are actually listed on the list of aggravated felonies, but it is possible that you could have committed a crime that isn’t on the list, that still qualifies as a CIMT. An important example could be a theft offense. It is inherently wrong to take the property of another person. You may have stolen food from a grocery store just to feed your family, but that reason for taking the food doesn’t make that action right in the eyes of the law. The aggravated felony list includes theft offenses for which the “term of imprisonment is at least a year.” However, maybe you were convicted of stealing that food under a U.S. State’s larceny statute that carries a maximum term of imprisonment of 9 months and you were sentenced to only 2 months. Thus, the crime you committed wouldn’t be an aggravated felony, but it could still be a CIMT or a Crime Involving Moral Turpitude.
While the commission of a CIMT does not automatically make you ineligible for asylum, it can under certain circumstances. It is criteria that can count against you in the authority’s determination of whether the crime you committed was “particularly serious” or not. Additionally, under certain circumstances, it can make you deportable, even if you commit a CIMT after you have been granted asylee status (you have already been granted asylum). It is also a factor that comes up with applying for lawful permanent residency and/or citizenship. If you believe you may have been convicted of a Crime Involving Moral Turpitude you should consult an experienced Immigration Attorney, as it can have serious implications. It is important to emphasize also that, committing a CIMT does not always have serious implications and there are exceptions that may be applicable to any given case; to help save a foreign alien from more serious immigration consequences. However, it is a factor, and a highly complex one, in determining asylum eligibility based on crimes committed. There you have it. The basics of crimes and ineligibility for asylum. It is important to note that not all grounds for asylum ineligibility have to deal with convicted crimes, and more are outlined in our article, Who is Eligible for Asylum? Again, there is simply no substitute for the advice of an experienced Immigration Attorney when dealing with crimes and immigration issues. This article is only intended to provide basic legal information to those interested and IS NOT intended as legal advice.