US citizen R and his out-of-wedlock 19-year old son J had submitted DNA tests in support of R’s immigrant petition. USCIS approved the petition. Yet when J went to the consulate for his immigrant visa interview, the approval of that petition and the DNA results from an officially accredited laboratory in the US were not sufficient to convince the consular officer to issue the immigrant visa to J. The consul insisted that J change his surname to his father’s surname, and temporarily refused the visa under Section 221(g). After more than 2 years of dealing with local bureaucracy in trying to get his son’s name changed, R contacted us. We brought this to the attention of a consular supervisor and requested reconsideration. Specifically, we pointed to the fact that there is no legal requirement that a petitioned-for child have the same surname as the US citizen. We also presented overwhelming evidence of the father-child relationship and their attempts over 2 years to get J’s surname changed. In short order, the immigrant visa was issued to J.
One of the most nebulous terms in immigration law is a crime of moral turpitude. Its interpretation has been the subject of endless debate and caselaw — with conflicting court decisions not uncommon. Such uncertainty means that a California court could find a certain conviction to not be for a crime of moral turpitude, while a Nevada court finds a similar statute to be one for a crime of moral turpitude. Given such uncertainty and limited training or exposure, consular officers frequently make questionable or erroneous determinations that a certain conviction is one for a crime of moral turpitude.
According to Section 212(a)(2)(A)(i)(1), a person who admits or is convicted of a crime of moral turpitude is subject to a permanent bar from the United States. The primary exceptions are for 1) those who committed the crime while under age 18 and 2) a conviction for a crime of moral turpitude which qualifies as a petty offense. To qualify under the age exception, the crime must have been committed more than 5 years before the date of the visa application. To qualify under the petty offense exception, the maximum penalty possible for the crime was one year or less, and the person was sentenced to imprisonment for six months or less. Shoplifting is the classic petty offense exception. There is also a third exception. This relates to purely political offenses: if a person has been convicted based on fabricated evidence, or due to political, racial, or religious reasons, then the conviction cannot serve as the basis for a 212(a)(2)(A)(i)(1) decision.
For purposes of making this determination, the consular officer must interpret the criminal statute. One common mistake made is that while a person’s behavior which led to a conviction might seem like a crime of moral turpitude, the statute itself does not encompass crimes of moral turpitude, or is so broad it encompasses both crimes of moral turpitude and non-crimes of moral turpitude. For example, a person who steals a car but is convicted under a joyriding statute in which intent to permanently deprive the victim of the car is not one of the elements should not be found subject to this inadmissibility provision.
Crimes of moral turpitude are based on the perpetrator having an evil intent: committing fraud, larceny, and having an intent to harm property or things. Examples include: murder, rape, robbery, theft, arson, shoplifting, assault, kidnapping, fraud, embezzlement, burglary, transporting stolen property knowingly, extortion, blackmail, forgery, receiving stolen property knowingly, perjury, willful tax evasion, passing bad checks, bribery, counterfeiting, contributing to the delinquency of a minor, lewdness, or attempts to engage in any of this behavior. Crimes of an administrative or regulatory character are not crimes of moral turpitude and include drunk driving, disorderly conduct, immigration violations, gambling, alcohol violations, firearms violations, receiving or transporting stolen property without intent, taking another’s property without intent to permanently deprive, simple assault, libel, and customs violations. There are of course numerous nuances and fact mutations related to these crimes. For example, civil proceedings against an individual for “fraud” are not considered criminal in nature, and therefore cannot serve as the basis for a 2A decision.
Foreign countries may have laws which are far more expansive or which do not have analogs in the US. These can be particularly ripe for challenge if a consular officer makes a 2A crime of moral turpitude finding. For example, a matter which may be viewed as a violation of corporate governance rules in the US, not criminal law (e.g., a company officer engaging in conduct outside his authority may be considered a crime in a foreign country).
This is why anyone who is charged in a criminal case needs to be very careful when accepting a plea bargain: he needs to be sure that the crime is not considered a crime of moral turpitude before accepting the plea deal. A person charged with possession of drugs should try to plead it down to a lesser charge, for example, disorderly conduct, in order to ensure a good visa outcome. A person subject to attorney incompetence can seek to reopen his conviction and have it vacated; for example, if the attorney did not warn the client about the possible immigration consequences. A court can enter a writ of coram nobis in such cases, and a consular officer would be obliged to rescind a 2A finding — even if the applicant had admitted to engaging in that criminal conduct.
Finally, it must be kept in mind that this provision applies no matter how much time has elapsed since the commission of the crime or conviction. Later expungement of a home country or US conviction does not wipe away the immigration consequences: once a conviction, always a conviction for US immigration law purposes. Even if the court records have been destroyed and police records reflect no criminal convictions, in the eyes of the US immigration authorities, the conviction remains. Any attempt to conceal such a conviction then subjects the individual to a potential finding of a willful, material misrepresentation — and two waivers, not one, would be required.
If the consular decision is correct, then nonimmigrant waivers are available for those found inadmissible under this section. Immigrant waivers are available if more than 15 years have elapsed since the commission of the crime and the person has been rehabilitated, or to those who are being petitioned for by a spouse, child, or parent who is a US citizen or legal permanent resident if extreme hardship can be shown.
As discussed above, this intersection of criminal and immigration law is complicated and subject to frequent errors. We have helped dozens of individuals deal with these issues: analyzing convictions and their consequences; interacting with criminal lawyers to ensure the minimization of immigration consequences; preparing legal opinions for a consular officer as to why a conviction for a particular crime is not a crime of moral turpitude (this may be particularly important in time-sensitive cases, such as for winners of the Diversity Lottery); challenging erroneous decisions; and preparing waiver applications. Please contact us to find out how we can help you.