When Criminal Convictions Are Legal Grounds for Deportation
Many of the reasons for removing a foreign national from the U.S. involve criminal convictions. These grounds of deportation are somewhat similar to criminal grounds of inadmissibility, but they are narrower in scope. The two main categories of crimes that can put you at risk of being deported are aggravated felonies and crimes involving moral turpitude. The Immigration and Nationality Act also enumerates certain crimes that serve as independent grounds of deportation, even if they are not classified in one of those two categories.
An aggravated felony under immigration law may be different from an aggravated felony under criminal law.
If you commit an aggravated felony, you likely cannot avoid being deported from the U.S., and you probably will be permanently inadmissible to the U.S. thereafter. These are very serious crimes, such as murder, rape, many sex crimes involving minors, drug trafficking, weapons trafficking, fraud involving at least a certain amount, money laundering or tax evasion involving at least a certain amount, espionage, and treason. Moreover, if you received a prison sentence of at least one year following a conviction of theft, perjury, or any violent crime, this will be considered an aggravated felony. It does not matter whether you actually served a full year in prison. There are very few defenses in these cases, other than showing that you would be tortured if you returned to your home country.
Crimes Involving Moral Turpitude
This category of crime is much more ambiguous. Generally, it includes crimes that involve fraud, theft, dishonesty, or an intent to harm people. Crimes involving moral turpitude thus might include relatively common offenses, such as domestic violence or other forms of assault, as well as DUI if it caused injuries. There is no comprehensive list of crimes involving moral turpitude, so you should consult an attorney to find out whether a certain crime might fall within this category. Sometimes a foreign national will be able to argue that a crime should not be considered a crime involving moral turpitude. You may have a defense if a criminal statute is written so broadly that it would cover conduct that would not be considered moral turpitude. (The question of whether a crime involves moral turpitude depends on the language of the statute, rather than the foreign national’s specific actions.)
A conviction of a crime involving moral turpitude might lead to deportation if it occurred during the first five years after the foreign national was admitted to the U.S. Adjustment of status to legal permanent residence sometimes counts as admission to the U.S. in this context, but it generally does not. Also, a foreign national may be subject to deportation if they committed multiple crimes involving moral turpitude throughout their time in the U.S. Crimes arising out of a single scheme of criminal activity do not count as multiple crimes. No lookback period applies if a foreign national has multiple convictions of these crimes.
Exceptions and Waivers for Crimes Involving Moral Turpitude
A crime may not be classified as a crime of moral turpitude if it fits within an exception for petty offenses. This applies when the penalty for the crime could not exceed one year of imprisonment, and the foreign national did not actually serve six months or more in prison. Minor assault and theft crimes sometimes fit within this exception.
Section 212(h) of the Immigration and Nationality Act provides the possibility of a waiver for certain foreign nationals who do not pose a threat to national security. Green card holders must meet additional requirements to get a waiver, including having held continuous legal status in the U.S. for at least seven years before the start of the deportation proceedings. They also must never have committed any aggravated felonies.
If you committed a crime involving moral turpitude more than 15 years before you applied for a green card, the judge can grant this type of waiver at their discretion. The same is true if you committed a crime related to prostitution or if you qualify for a green card under VAWA based on abuse by a spouse or parent who is a U.S. citizen or a green card holder. Foreign nationals who do not fit into any of these categories will need to prove that their deportation would result in an extreme hardship to a spouse, parent, or child who is a U.S. citizen or green card holder. You may be more likely to get a waiver if you can show that you have undergone rehabilitation, and your crime was not extremely violent or malicious.
Other Grounds for Deportation
In addition to aggravated felonies and crimes of moral turpitude, Section 237 of the INA lists other grounds for deportation, including certain convictions related to controlled substances, firearms, and domestic violence.