All immigrants, including those with green cards, can be deported if they violate U.S. immigration laws. The most common reason for people to be placed into removal proceedings is because there is evidence that they have been convicted of a crime.
Specifically, immigrants are at risk of being deported if they are convicted of either what is called a "crime of moral turpitude" or an "aggravated felony.” In addition, certain crimes are specifically listed as being grounds for deportation.
This article addresses what criminal convictions will cause a person who has not left the country after committing the crime to get deported, as well as whether any recourse may be available to the offender.
A longer list of crimes can get an immigrant deported if he or she leaves the country, comes back, and is put into removal proceedings upon return. Such persons, even if they are let back into the country, are considered to be seeking readmission to the United States, so any crimes they have committed since their previous admission may make them “inadmissible” and deportable. For a discussion of these crimes, see Crimes That Make U.S. Visa or Green Card Applicants Inadmissible.
In most instances, making use of state measures allowing post-conviction relief, such as expunging the crime from one's record or reducing the sentence, will not work for immigration purposes.
Under a 2019 decision by Attorney General Barr on behalf of the B.I.A., (Matter of Thomas and Thompson), a state-court order that modifies, clarifies, or alters the term of imprisonment or sentence associated with a conviction will have no legal effect unless based on a procedural or substantive defect in the underlying criminal proceeding. If the order is based on reasons unrelated to the merits, such as rehabilitation or immigration hardship, U.S. immigration law will disregard it entirely.
"Crimes of moral turpitude" (or "CMTs") are not well defined in U.S. immigration law. However, courts have weighed in on the matter, and the Department of State's guidance notes that the most common elements of a moral turpitude crime will include "fraud, larceny, and intent to harm persons or things." (9 FAM 302.3-2(B)(2)(U).)
Crimes involving dishonesty and theft will almost always be considered crimes of moral turpitude. Other examples would be assault with the intent to rob or kill, spousal abuse, and aggravated driving under the influence ("DUI" or "DWI").
As there are too many examples of crimes that have been found to involve moral turpitude to list here, it's safest to take a certified disposition of your offense (obtained from the clerk of the court where your case was heard) to an immigration attorney in order to learn whether your particular type of conviction has been found to be one.
It may be possible to argue that your conviction should not be classified as a crime of moral turpitude, or that the statute that you violated contains elements that would not always pertain to a crime of moral turpitude. These types of defenses will be highly dependent upon the wording of the statute under which you were convicted. Criminal statutes almost always come from state law, so you may be raising brand new questions about how these statutes are interpreted under federal immigration law.
For more information, see What’s a Crime of Moral Turpitude According to U.S. Immigration Law?
Immigration law provides that a crime can escape classification as a crime of moral turpitude if it is a "petty offense." The petty offense exception applies if the penalty for the crime committed could never exceed one year of imprisonment, and if any time the person actually served in prison was less than six months.
Examples of petty offenses could include shoplifting, simple assault, or a DUI that did not involve driving without a license or damage to property or persons, depending on the law in your state.
For more information, see When the Petty Offense Exception Excuses a Crime of Moral Turpitude.
There are two ways that committing a crime of moral turpitude could put you into removal (deportation) proceedings:
1) You commit a crime of moral turpitude during the first five years after your admission to the United States.
2) You commit two or more crimes of moral turpitude that did not arise out of a single scheme of criminal misconduct at any time after your admission to the United States.
Keep reading to learn more about how to determine whether you are at risk of deportation for a crime involving moral turpitude.
To know whether you committed your crime within five years after your admission to the U.S., you must start with the date when the crime was committed and count back five years. If you were legally admitted to the U.S. from a border, airport, or any other point of entry during those five years, you may be placed into removal proceedings. If more than five years have passed since the date you were admitted, then you are not deportable.
For example, if you entered the United States in 2010 as an F-1 student, received your green card while here in 2016 ("adjustment of status"), and committed a crime of moral turpitude in 2018, you are not deportable, because more than five years passed from the date of your admission as a student. In some situations, the date that applicants adjust to permanent residence is also treated as a date of admission, but this will not apply in most situations when determining whether an immigrant is deportable.
You can also be placed into removal proceedings if you have committed more than one crime involving moral turpitude, regardless of when the crimes occurred. However, if multiple crimes "arise from a single scheme of criminal misconduct" they will be considered only one crime when determining deportability.
For example, if someone had two different robbery convictions but both occurred at the same location and around the same time, those offenses arose from a single scheme of misconduct. If a person had two robbery convictions and the incidents occurred on two different dates and at two different locations, then the offenses did not arise from a single scheme of misconduct and the person is likely deportable for multiple crimes involving moral turpitude.
Unlike with a single crime of moral turpitude, once you commit two crimes of moral turpitude not arising from the same scheme of criminal misconduct, you can be deported no matter how much time has passed since your last entry ("admission") to the United States. There is no five-year "look-back" period.
There are a few situations in which you may be able to ask to apply or reapply for a green card as a defense to deportation along with a “212(h) waiver" despite having committed a crime of moral turpitude. (A "waiver" is a form of legal forgiveness.)
To qualify for a 212(h) waiver, you cannot be a threat to national security. In addition, if you are a green card holder, you must never have committed an aggravated felony, and you must have lived within the U.S. in lawful status continuously for at least seven years before the deportation case was brought against you. The aggravated felony bar and the seven-year rule do not apply if you are not a green card holder.
If your crime was related to prostitution, or was committed more than 15 years before you applied to adjust or re-adjust your status to permanent resident, all you need is for the judge to decide you deserve the waiver. Likewise, if you qualify for adjustment or re-adjustment of status to permanent resident under the Violence Against Women Act (VAWA) because you suffered physical or emotional abuse at the hands of a U.S. citizen or permanent resident spouse or parent, all you need is the judge’s approval.
Otherwise, you can get a 212(h) waiver only if you can show that your deportation would cause extreme hardship to your U.S. citizen or lawful permanent resident spouse, parent, son, or daughter.
Ultimately, your success in obtaining a 212(h) waiver will depend on the level of violence involved in any crimes committed, proof of rehabilitation, and other factors showing that you deserve a second chance. For more information on criminal waivers for green card applicants, see When Is a Waiver of Inadmissibility Available to a Green Card Applicant?
The full list of crimes that are considered aggravated felonies under immigration law (which is different from criminal law) is extensive and may be found in the Immigration and Nationality Act at I.N.A. § 101(a)(43). It includes such crimes as murder; rape; drug or firearms trafficking; sexual abuse of a minor; child pornography; money laundering, fraud or tax evasion involving more than $10,000; theft or violent crime with a sentence order of at least one year (it is irrelevant if it was suspended or if you only had to serve part of it); espionage, sabotage, or treason; perjury with a sentence of at least one year; and more.
If you were convicted of an aggravated felony at any time, there will be little you can do to avoid deportation, unless you can prove it is more likely than not that you would be tortured in your native country upon return. A waiver to return to the U.S. will not be available for any purpose. You should obtain competent counsel who can help you avoid an aggravated felony conviction that will permanently render you inadmissible to the United States.
For more information, see What’s an Aggravated Felony According to U.S. Immigration Law?
The full list of crimes and other grounds of deportability is in Section 237 of the I.N.A. It lists things like drug crimes, illegal firearms possession or sales, espionage, domestic violence, stalking, child abuse or neglect, human trafficking, terrorist activity, and more.
In some cases, the crimes on this list might also be considered crimes of moral turpitude or aggravated felonies. By listing them separately, however, the law ensures that immigrants cannot attempt to defend against deportation by arguing about whether or not the conviction should count as a crime of moral turpitude or aggravated felony. For a more detailed list, see Grounds of Deportability: When Legal U.S. Residents Can Be Removed.