A widespread misconception among the immigrant community in the U.S. is that only major crimes, such as felonies, can bar someone from getting a visa, green card, or other immigration benefit. However, the truth is that even minor offenses, if a non-citizen commits more than one of them, can trigger immigration consequences. They can destroy one’s eligibility for immigration benefits by making that person inadmissible.
The U.S. justice system can be forgiving for first-time offenders, and sometimes even for repeat offenders. It offers several types of alternatives to prison, and a person who complies with the rules of a sentence or program may be allowed to apply to have his or her record expunged (wiped clean).
Unfortunately, such measures don’t always help non-citizens residing in the United States. Perhaps you pled guilty or no contest in exchange for an alternative sentencing program, or received probation as part of a deal. While you were eligible for the same alternative sentencing and post-conviction relief as U.S. citizens, and in some contexts, will be able to truthfully state that you have no crimes on your record, you might still be barred from receiving a visa, green card, or other right to remain in the United States. The reason is simply that you are still considered to have multiple criminal convictions in your past.
As a non-citizen in the U.S., you might have any of various future objectives. If you don’t have any immigration status yet, you may someday wish to apply for a visa, green card, or other status—in which case, certain crimes, or combinations of crimes, could make you “inadmissible,” the subject of this article.
A non-citizen who has been convicted of two or more offenses of any type, with an aggregate sentence of imprisonment, whether that sentence remained active or was suspended, of five years or more, is inadmissible under U.S. immigration law.
As an example, let’s say you were involved in a credit card scheme and, as a result, were convicted of (1) illegal possession of credit cards, for which you received a one-year sentence, (2) fraudulent use of credit cards, for which you received a two-year sentence, and (3) forgery, for which you received a two-year sentence. That adds up to three offenses, with a total aggregate sentence time of five years, thus making you inadmissible.
Inadmissibility isn’t the only problem a non-citizen could face, however. If you already have a green card, you are still at risk, because a criminal record could make you “deportable,” which is discussed separately on the Nolo website (See Grounds of Deportability: When Legal U.S. Residents Can Be Removed.) And if you don’t have any immigration status, becoming deportable is an immediate problem of its own, potentially leading to your removal from the U.S. and disqualification from future immigration benefits.
Many non-citizens become inadmissible due to controlled substance violations—whether a conviction or their own admission to a felony or misdemeanor drug offense. Not only do drug offenses trigger inadmissibility on their own, but they permanently preclude non-citizens from obtaining lawful permanent resident status.
The only exception is for simple possession of 30 grams or less of marijuana, if the person does not have any prior drug convictions. However, this exception can pose problems for defendants attempting to negotiate a plea bargain, because a simple possession offense in state court can still be counted as an added conviction in immigration court. An immigration judge can, however, waive the conviction for possession of marijuana if the amount is under 30 grams. With such a waiver, the conviction will not count towards your total number of convictions.
For a defendant in criminal court, being accused of possession of drug paraphernalia can carry a light sentence—a fact that often leads defense attorneys to bargain for such a charge.
But a non-citizen seeking relief in immigration court who has a conviction for possession of drug paraphernalia on record can become inadmissible. Currently, there is no waiver for possession of drug paraphernalia, so a conviction would count towards a non-citizen’s total number of convictions.
A non-citizen is inadmissible for a conviction of a crime involving moral turpitude. See What’s a Crime of Moral Turpitude According to U.S. Immigration Law for a discussion of CMTs. For purposes of inadmissibility, there is an exception for petty offenses.
A CMT cannot be a basis for inadmissibility if you have committed only one crime, the maximum possible sentence for that offense is one year or less, and the actual sentence of imprisonment, whether active or suspended, is six months or less.
If you have been convicted of one CMT and meet the criteria just described, your conviction will not be counted for multiple conviction purposes. However, if you have multiple prior CMT convictions, you will not qualify for this petty offense exception, and your convictions will count towards the total.
As a non-citizen, you may believe you are still admissible to the U.S. because you have had one or more convictions on your record expunged or you received deferred prosecution, probation, or some form of post-conviction relief, likely as a result of being a first-time offender.
But that’s not always true, largely because of the way a conviction is defined for immigration purposes. Any punishment, penalty, or term of imprisonment ordered by the court, such as incarceration, probation, drug and alcohol programs, community service, or anger management can qualify as a conviction, thus further adding to the number of convictions on one’s record. (See I.N.A. § 101(a)(48)(A).)
To further discuss how your conviction can affect your immigration status, you’ll need a lawyer’s help. Look for one with specific experience in the overlap between U.S. immigration law and your state’s criminal law.