Immigration Consequences of Criminal Activity
Released: 2018-04-05T00:00:00

C ongress's power to establish rules for the admission of non-U.S. nationals (aliens ) has long been viewed as plenary. In the Immigration and Nationality Act (INA), as amended, Congress has specified various grounds for the exclusion or removal of aliens, including grounds related to the commission of criminal conduct. Some criminal offenses committed by an alien who is present in the United States may render that alien subject to removal from the country. And certain offenses may preclude an alien outside the United States from either being admitted into the country or being permitted to reenter following an initial departure. Further, committing certain crimes may disqualify an alien from many forms of relief from removal, prevent an alien from adjusting to lawful permanent resident (LPR) status, or bar an LPR from naturalizing as a U.S. citizen.

This report provides an overview of the major immigration consequences of criminal activity. The report begins by briefly discussing the laws governing the immigration consequences of criminal conduct and the government entities charged with administering U.S. immigration laws. Next, the report enumerates specific crimes and categories of crimes that may render an alien inadmissible or deportable. Then, the report discusses the potential impact criminal activity may have for an alien's eligibility to obtain various forms of relief from removal or exclusion, including relief through a waiver of application of certain grounds for removal, cancellation of removal, voluntary departure, asylum, or withholding of removal. Next, the report discusses criminal activity affecting an alien's ability to adjust to LPR status or naturalize as a U.S. citizen. Finally, the report examines select legal issues related to the intersection of criminal law and immigration, including the responsibilities of criminal defense attorneys representing alien defendants, as well as judicial interpretation of particular INA provisions that may render aliens who have been convicted of certain crimes removable.

Administration of Immigration Laws

The INA primarily governs the administration of U.S. immigration laws. Originally enacted in 1952, the INA unified the country's immigration laws under one umbrella framework. A number of federal agencies possess distinct responsibilities relating to the administration of the country's immigration laws, including the Department of Justice, the State Department, and, following the enactment of the Homeland Security Act of 2002, the Department of Homeland Security (DHS).

Before Congress enacted the Homeland Security Act most U.S. immigration laws—particularly as they related to enforcement activities and providing relief or services to aliens within the United States—were primarily administered by the Attorney General, who largely delegated his power to two agencies within the Department of Justice (DOJ): the Immigration and Naturalization Service (INS), which carried out enforcement and service activities, and the Executive Office for Immigration Review (EOIR), which carried out adjudication activities.

The Homeland Security Act, as relevant here, dismantled the INS, created DHS, and transferred many of the Attorney General's immigration administration responsibilities to the DHS Secretary. Thus, the DHS Secretary is now "charged with the administration and enforcement of [the INA] and all other laws relating to the immigration and naturalization of aliens, except insofar as this chapter or such laws relate to the powers, functions, and duties conferred upon the President, Attorney General" and other executive officers.

Three components of DHS—Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE), and U.S. Citizenship and Immigration Services (USCIS)—carry out the major functions of the former INS. In particular, ICE is the primary investigative arm of immigration enforcement within the United States. When ICE determines that an alien located within the U.S. interior has violated the immigration laws—for example, by committing certain crimes—DHS typically apprehends the alien and initiates removal proceedings against him before an immigration judge (IJ) within DOJ's EOIR. CBP, on the other hand, is authorized to enforce immigration laws at the border, which involves responsibilities including the inspection and admission of aliens seeking entry into the United States and the expedited removal of certain inadmissible aliens apprehended at or near the border while seeking entry to the United States.

DHS, through USCIS, also plays a role in determining eligibility and approving applications for certain forms of relief and immigration benefits (e.g., granting asylum, adjusting status, or naturalizing).

Despite the transfer of most enforcement functions to DHS, removal proceedings are primarily conducted by EOIR within DOJ. During those proceedings, an IJ typically assesses an alien's removability and eligibility for relief from removal. At the removal hearing—a civil proceeding —aliens generally have a right to legal counsel at their own expense. An IJ makes an initial removability determination, which may be appealed to the Board of Immigration Appeals (BIA), the highest administrative body charged with interpreting and applying federal immigration laws. (The Attorney General is vested with discretion to review those appeals as well.) Additionally, as was the case before enactment of the Homeland Security Act, Attorney General rulings "with respect to all questions of law shall be controlling."

Federal circuit courts of appeals have exclusive jurisdiction to adjudicate petitions for review of final removal orders issued in proceedings before EOIR. However, the INA limits what issues the appellate courts may review. For instance, the INA limits federal courts' jurisdiction over cases involving an alien ordered removed based on certain criminal activity, unless the alien raises a constitutional claim or question of law (e.g., whether particular conduct an alien allegedly committed is of the type of conduct covered by a particular removal ground in the INA).

Another executive branch agency, the State Department, takes the lead role in processing the visas that aliens must generally obtain (with notable exceptions) to travel to, and be admitted into, the United States. Immigrant visas are granted to aliens seeking lawful permanent residency in the United States, whereas nonimmigrant visas are issued to aliens seeking temporary admission into the United States. In both cases, the alien seeking a visa must submit supporting documentation to, and interview with, a consular official who generally must be located in the country where the alien resides. Eligibility for a particular visa depends on specified criteria set forth in the INA. And, as will be discussed in further detail below, certain criminal activity may render an alien ineligible to obtain a visa to enter the United States.

Criminal Grounds for Inadmissibility and Deportation

Aliens who commit certain crimes may be ineligible to enter or remain in the United States. The term "inadmissible" is used to describe aliens who are generally ineligible to receive visas or otherwise be lawfully admitted into the United States. "Deportable" refers to aliens who have been lawfully admitted to the United States, but have engaged in proscribed activities that render them removable from the country.

Criminal Grounds of Inadmissibility Under INA § 212(a)(2)

The criminal grounds for inadmissibility are primarily set forth in INA § 212(a)(2). The criminal grounds are a mix of specific crimes and categories of crimes with varying levels of proof required for the crime to render an alien inadmissible.

Criminal Grounds of Deportability Under INA § 237(a)(2)

Criminal grounds for deportation are primarily listed in INA § 237(a)(2). Like the inadmissibility grounds, criminal deportation grounds also consist of specific crimes and categories of crimes. One main difference between the criminal grounds for inadmissibility and deportability is that the deportability grounds largely require the alien to have been convicted of the listed offense, whereas the inadmissibility grounds for certain crimes may only require that the alien admitted committing the offense or that immigration authorities have "reason to believe" the alien committed the proscribed conduct.

Crime Involving Moral Turpitude

Both the criminal grounds of inadmissibility and deportability under the INA reference a "crime of moral turpitude" as one of the bases for denying admission or deporting an alien from the United States. The federal courts and legal community have long grappled over the meaning of the term "crime involving moral turpitude" (alternatively referred to as "crime of moral turpitude"). Neither the INA nor any earlier immigration law defines the term. Some federal appellate courts have opined that the term's legislative history, or lack thereof, "leaves no doubt ... that Congress left the term 'crime involving moral turpitude' to future administrative and judicial interpretation." According to the BIA, moral turpitude "refers generally to conduct that shocks the public conscience as being inherently base, vile, or depraved, and contrary to accepted rules of morality and the duties owed between persons and to society in general." In addition, moral turpitude, according to the BIA, involves "malicious intention" and actions "contrary to justice, honesty, principle, or good morals."

The federal courts generally agree that a crime that is inherently fraudulent or involves an intent to defraud is a crime involving moral turpitude. It is less settled, however, when other, nonfraudulent crimes constitute crimes involving moral turpitude. Indeed, before Attorney General Michael Mukasey's 2008 opinion in Matter of Silva-Trevino ( Silva - Tr e vino I ), which set forth a standard for assessing whether a crime involved moral turpitude, there had been an "absence of an authoritative administrative methodology for resolving moral turpitude inquiries [which had] resulted in different approaches across the country." In Silva-Tr e vino I, the Attorney General ruled that a crime involving moral turpitude must involve both reprehensible conduct and a culpable mental state, such as specific intent, deliberateness, or recklessness. Since then, the BIA has adopted this formulation as the standard for determining whether an offense constitutes a crime involving moral turpitude.

Aggravated Felony

INA § 101(a)(43) provides a list of crimes deemed to be aggravated felonies for immigration purposes; a list which Congress has repeatedly expanded over the years to cover additional crimes. The list includes many specific offenses, as well as several broad categories of crimes. Moreover, the "aggravated felony" definition is not limited to offenses that are punishable as felonies (i.e., offenses punishable by at least a year and a day imprisonment); certain misdemeanors are also defined as aggravated felonies for INA purposes.

INA § 101(a)(43) defines the term aggravated felony by designating certain crimes and categories of crimes as aggravated felonies. Specific crimes include the following:

The offenses described above include violations of state or federal law, as well as violations of foreign law if the term of imprisonment was completed within the prior 15 years. Additionally, an attempt or conspiracy to commit any of the above offenses qualifies as an aggravated felony.

An alien convicted of a crime that falls within the scope of the aggravated felony definition may be subject to serious immigration consequences. A conviction for an aggravated felony is a ground for deportation. Additionally, an alien who has committed an aggravated felony and is removed from the United States will become inadmissible indefinitely, and may be ineligible for various forms of relief from removal.

Crimes Affecting "Good Moral Character"

As discussed in detail below, aliens must demonstrate good moral character for a certain period to qualify for various forms of relief from removal and for naturalization. The INA specifies many criminal activities that would preclude an adjudicator from finding that an alien has good moral character. In most cases, the relevant criminal activity precludes a finding of good moral character only if it is committed within a particular statutory period; in some cases, however, criminal conduct may permanently bar a finding of good moral character. The table below lists major criminal bars to finding good moral character.

The list above is not exhaustive, and so an adjudicator may find that an alien lacks good moral character for other criminal activities not listed in the statute.

Relief from Removal and Obtaining Certain Immigration Benefits

If an alien commits conduct that falls under a ground for inadmissibility or deportability, it does not necessarily follow that the alien cannot enter or remain in the United States. The INA provides several grounds for relief—mandatory and discretionary—from exclusion or removal. These forms of relief include adjustment of status, waivers of certain grounds of inadmissibility by immigration authorities, cancellation of removal, voluntary departure, withholding of removal, and asylum, among others. However, certain criminal activity may bar an alien from being eligible for some types of relief. The Attorney General, with authority typically delegated to EOIR, adjudicates applications for relief from removal. In addition, the DHS Secretary, with authority delegated to the agency's adjudicatory component, USCIS, has the authority to adjudicate applications for immigration benefits, including asylum, refugee admissions, and adjustment of status. Some of these forms of relief and adjustment are discussed below.

Waiver for Criminal Inadmissibility Grounds

The INA provides that immigration authorities have discretion to waive certain grounds of inadmissibility in qualifying circumstances. Concerning the criminal grounds for inadmissibility, the scope of this waiver authority differs depending on whether the alien is seeking admission as an LPR, or whether the alien is, instead, seeking admission into the country temporarily as a nonimmigrant.

Aliens Seeking Admission as LPRs

INA § 212(h) grants the Attorney General and the DHS Secretary discretion to waive the application of specified criminal grounds for inadmissibility for aliens seeking admission as an LPR if certain conditions are met. In particular, the Attorney General or DHS Secretary may waive the inadmissibility grounds relating to

crimes involving moral turpitude; multiple criminal convictions; prostitution and other commercialized vices; involvement in serious criminal activity for which immunity from prosecution was granted; or drug crimes relating to a single offense of simple possession of 30 grams or less of marijuana.

But for the Attorney General and the DHS Secretary to exercise their discretion, the alien must establish that (1) he is inadmissible solely on the basis of prostitution-related crimes, or the activities for which he is inadmissible took place more than 15 years before applying for admission; (2) his admission would not be contrary to the national welfare, safety, or security of the United States; and (3) he has been rehabilitated.

For an alien who is the spouse, parent, son, or daughter of a U.S. citizen or LPR, the Attorney General and the DHS Secretary may also waive inadmissibility if the alien establishes that the denial of admission would result in "extreme hardship" to the qualifying family member. Additionally, under the Violence Against Women Act of 1994, as amended (VAWA), the Attorney General and DHS may waive the criminal inadmissibility grounds if the alien is a battered spouse or child of a U.S. citizen or LPR.

Notwithstanding the Attorney General's and DHS Secretary's discretion noted above, INA § 212(h) bars waivers for aliens convicted of murder or criminal acts involving torture, or an attempt or conspiracy to commit those crimes. Additionally, a waiver may not be granted to an alien previously admitted as an LPR if, since the date of admission, the alien has been convicted of an aggravated felony, or has not lawfully resided continuously in the United States for at least seven years before removal proceedings have been initiated against the alien.

Aliens Seeking Admission as Nonimmigrants

For an alien seeking admission as a nonimmigrant (e.g., students, athletes, temporary workers), DHS may exercise its discretion to authorize the nonimmigrant visa if the Secretary of State or consular officer recommends that the alien be temporarily admitted despite a criminal ground for inadmissibility. This waiver, however, is not available if the alien is inadmissible because (1) he seeks to enter the United States to engage in espionage or sabotage; (2) he seeks to enter the United States to engage in any other unlawful activity; (3) he seeks to enter the United States to engage in activity with the purpose of opposing, controlling, or overthrowing the U.S. government through force or other unlawful means; (4) the Secretary of State has reasonable grounds to believe that the alien's entry "would have potentially serious adverse foreign policy consequences for the United States"; or (5) the alien has participated in Nazi persecution or genocide.

Cancellation of Removal

INA § 240A authorizes cancellation of removal, another form of discretionary relief available to certain LPRs and nonimmigrants in removal proceedings. For non-LPRs, this relief is available to up to 4,000 aliens each year. Cancellation of removal allows the Attorney General to cancel the removal of qualifying LPRs and nonpermanent residents (including both those lawfully admitted as nonimmigrants and aliens who do not possess a lawful immigration status) who are inadmissible or deportable. But some criminal activity may bar the Attorney General from exercising that discretion.

Eligibility for cancellation of removal differs for LPRs and non-LPRs. For LPRs, the Attorney General may exercise discretion to cancel removal if the alien

1. has been an LPR for at least five years; 2. has resided in the United States continuously for seven years after having been admitted to the United States in any status; and 3. has not been convicted of an aggravated felony.

For non-LPRs, the Attorney General may exercise discretion to cancel the removal of an alien who is inadmissible or deportable and adjust the alien's status to LPR if the alien

1. has been physically present in the United States for a continuous period of at least 10 years immediately preceding the application for relief; 2. has been a person of good moral character during that 10-year period; 3. has not been convicted of an offense described in INA § 212(a)(2) (criminal grounds of inadmissibility), § 237(a)(2) (criminal grounds of deportability), or § 237(a)(3) (failure to register and falsification of documents); and 4. establishes that his removal would result in "exceptional and extremely unusual hardship" to a spouse, parent, or child who is a U.S. citizen or LPR.

Thus, LPRs who have been convicted of an aggravated felony cannot receive cancellation of removal. But this statutory bar does not preclude the Attorney General from canceling the removal of LPRs who have been convicted of other types of offenses. Conversely, non-LPRs may be rendered ineligible to obtain cancellation of removal by committing any offense described within the criminal grounds for inadmissibility or deportability.

Additionally, an alien who is not an LPR cannot receive cancellation of removal if he has not been a person of good moral character for at least 10 years immediately preceding the date of the application. As listed above, the INA provides many additional criminal activities—aside from convictions for crimes listed in INA §§ 212(a)(2) and 237(a)(2)—that would preclude a finding of good moral character.

Voluntary Departure

INA § 240B authorizes relevant immigration authorities to allow an otherwise removable alien to voluntarily depart the United States at his own expense within 60 to 120 days of being granted that permission, instead of being formally removed by the government. Voluntary departure is sometimes viewed as a quid pro quo: The government benefits by avoiding the costs of formal removal and, in exchange, the alien may depart to any country of his choosing at any time within the statutory period, while also avoiding bars to reentry that attach to a formal order of removal.

There are two forms of voluntary departure. First, an alien may be granted voluntary departure instead of being subject to formal removal proceedings or before those proceedings are completed. The INA bars voluntary departure for an alien deportable on account of being convicted of an aggravated felony or under the terror-related grounds of INA § 237(a)(4)(B).

Alternatively, an alien may be granted voluntary departure at the conclusion of removal proceedings. To qualify for this form of voluntary departure, the alien must, among other things, (1) have been a person of good moral character for at least five years immediately preceding the application for voluntary departure and (2) not have committed any aggravated felony.

Withholding of Removal

INA § 241(b)(3) bars DHS from removing an alien to a country if the alien's life or freedom would be threatened because of the alien's race, religion, nationality, membership in a particular social group, or political opinion (i.e., a protected ground). Unlike the forms of relief discussed above, withholding of removal is mandatory if an immigration judge determines that the alien is eligible. To obtain this relief, the alien must establish a "clear probability that his life or freedom will be threatened upon return to his country" (i.e., that "it appears more likely than not that he will suffer persecution if removed").

Certain conduct renders an alien ineligible to obtain withholding of removal. Proscribed conduct includes not only the commission of certain crimes, but also activity that, while not clearly identified as a criminal offense (e.g., the commission of genocide), is typically subject to criminal sanction. An alien is ineligible for withholding of removal, however, if, among other things, the alien

participated in Nazi persecution, genocide, or the commission of any act of torture or extrajudicial killing; ordered, incited, assisted, or otherwise participated in the persecution of an individual on account of a protected ground; is "a danger to the community of the United States" as a result of having been convicted of "a particularly serious crime"; committed a serious nonpolitical crime outside the United States before arriving in the United States; or is otherwise a danger to the security of the United States.

An alien is considered to have committed a "particularly serious crime" if, among other things, the alien has been convicted of an aggravated felony (or felonies) for which the aggregate term of imprisonment is at least five years. However, the Attorney General is authorized to determine, on a case-by-case basis, that an alien has been convicted of a particularly serious crime regardless of the length of sentence imposed for an offense.

Convention Against Torture

An alien who fears torture in the country of his removal may apply for protection under the Convention Against Torture (CAT). There are two forms of CAT protection: withholding of removal and deferral of removal. To qualify for CAT-based relief, an alien must show that it is more likely than not that he would be tortured by the government or a person acting with the consent or acquiescence of that government in the country of removal. If the Attorney General determines that the alien has met that burden, the alien may not be removed to the country of removal, but DHS may still remove the alien to a different country where he would not more likely than not face torture.

An alien who establishes eligibility for withholding of removal under CAT may not be afforded its protection if he falls within one of the criminal-related grounds that bar applications for withholding of removal under INA § 241(b)(3). Nevertheless, deferral of removal under CAT is available to all a liens who would likely face torture if removed to a particular country, regardless of whether they have been convicted of a crime. Unlike withholding of removal under CAT, deferral of removal is a more temporary form of protection that may be terminated if (1) DHS produces evidence that the alien might not be tortured, and, following a hearing, the alien fails to meet his burden of proving that he likely faces torture; or (2) U.S. authorities obtain adequate assurances from the government of the country of removal that the alien would not be tortured.

Asylum

INA § 208 allows aliens to apply for asylum within one year of entering the United States, regardless of the alien's immigration status. Once in the United States, an alien may affirmatively apply for asylum with USCIS, or, alternatively, the alien may defensively apply for asylum as a form of relief from removal after removal proceedings have been initiated. An alien may be eligible for asylum if he is unable or unwilling to return to his country because of past persecution or a well-founded fear of future persecution on account of race, religion, nationality, political opinion, or membership in a particular social group. In other words, the Attorney General or DHS has the discretion to grant an alien asylum if the alien can establish that he suffered past persecution in his home country or has a well-founded fear of future persecution in that country on account of belonging to a protected group. The well-founded fear standard for asylum is less demanding than the clear probability standard for withholding of removal.

Certain criminal activity may preclude an alien from receiving a grant of asylum. As in withholding of removal, asylum may not be granted to an alien who

1. is a danger to the United States community because of a conviction for a particularly serious crime; 2. has committed a serious nonpolitical crime outside the United States before arriving in the country; 3. has participated in the persecution of a person in a protected group; 4. has engaged in or is associated with terrorist activities; 5. is otherwise a danger to the security of the United States.

Unlike withholding of removal, a conviction for any aggravated felony is considered a particularly serious crime in asylum determinations, regardless of the term of criminal incarceration.

Refugee Status

Under INA § 207, an alien may apply for refugee status from outside the United States. As with asylum, a person seeking refugee status must show that he suffered past persecution or has a well-founded fear of future persecution on account of his race, religion, nationality, membership in a particular social group, or political opinion. DHS has the discretion to admit a refugee if he (1) has not been firmly resettled in another country, (2) is determined to be "of special humanitarian concern to the United States," and (3) is generally admissible as an immigrant. Certain inadmissibility grounds, however, do not apply to an alien seeking admission as a refugee, and DHS may waive most grounds of inadmissibility under INA § 212, including those related to criminal offenses (except for drug trafficking offenses) if the agency determines that a waiver is warranted "for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest."

An alien who has been admitted as a refugee may adjust to LPR status after being physically present in the United States for at least one year. In adjudicating the adjustment application of a refugee, the relevant immigration authorities must determine whether, among other things, the alien is admissible for permanent residence. At this stage, DHS has the authority to waive most criminal grounds of inadmissibility—other than drug trafficking—under the same standard that applies to the inadmissibility waivers for refugees seeking admission (humanitarian purposes, family unity, or public interest).

Adjustment of Status

Both the DHS Secretary and the Attorney General have the discretion to adjust the status of certain nonimmigrants and other categories of aliens if certain criteria are met. The primary statute governing adjustment of status is INA § 245. But nearly all inadmissibility grounds—including all of the criminal grounds listed in INA § 212(a)(2)—preclude an alien from adjusting status under that section. However, as discussed previously, INA § 212(h) grants the Attorney General and the DHS Secretary discretion to waive the application of specified criminal inadmissibility grounds in certain circumstances. Therefore, the presence of a criminal ground of inadmissibility does not always foreclose an alien from adjusting status.

Temporary Protected Status

Under INA § 244, the Attorney General or DHS may grant Temporary Protected Status (TPS) relief to certain aliens from designated countries that are (1) afflicted with ongoing armed conflict posing a serious threat to the nationals of those countries; (2) disrupted by natural disasters or an epidemic; or (3) otherwise experiencing "extraordinary and temporary conditions in the foreign state that prevent aliens who are nationals of the state from returning to the state in safety."

However, certain criminal activity can make an alien ineligible to receive TPS relief. Although the relevant immigration authorities have the discretion to waive most inadmissibility grounds in granting TPS relief, they may not waive inadmissibility for aliens who have

1. committed a crime involving moral turpitude other than a purely political offense (including an attempt or conspiracy to commit such a crime); 2. violated any federal, state, or foreign drug law (including an attempt or conspiracy to commit such a violation); 3. engaged in drug trafficking (other than a single offense of simple possession of 30 grams or less of marijuana); or 4. been convicted of two or more offenses (other than purely political offenses) for which the aggregate sentences were five or more years of imprisonment.

In addition to those nonwaivable criminal inadmissibility grounds, the relevant immigration authorities may not grant TPS relief to an alien who (1) has been convicted of any felony or two or more misdemeanors committed in the United States; or (2) falls within the categories of aliens who are statutorily ineligible for asylum, as described above.

Naturalization: Impact of Criminal Activity

In general, LPRs may naturalize as U.S. citizens after residing continuously in the United States for five years and satisfying other qualifications. But to be eligible to naturalize, an LPR (among other things) must have been a person of good moral character for at least five years preceding his application for naturalization. As discussed above, the INA provides a nonexhaustive list of criminal activity that—if committed during the relevant period—would preclude a finding of good moral character and thus bar an LPR from naturalizing. However, some types of criminal activity permanently bar an alien from showing good moral character if they were committed at any time, including a conviction for an aggravated felony.

The Intersection of Criminal Law and Immigration: Select Legal Issues

Although immigration proceedings are civil matters, criminal proceedings are often linked to immigration proceedings because of the many immigration consequences of criminal activity. This section examines select legal issues related to criminal proceedings as they relate to immigration law, including the constitutional obligations of criminal attorneys representing alien defendants, what constitutes a "conviction" under the INA, and how adjudicatory bodies determine when a criminal conviction will trigger immigration consequences.

The Duty to Inform about Immigration Consequences from a Criminal Conviction

Criminal proceedings involving aliens may carry additional consequences for an alien defendant beyond criminal sanction, including potentially rendering the alien subject to removal from the country. Immigration proceedings are civil, not criminal, and so aliens facing removal charges have no Sixth Amendment right to counsel. But aliens facing criminal charges in federal and state court do have a constitutional right to effective assistance of counsel. This right applies throughout all "critical" stages of criminal proceedings, including pretrial stages when the defendant must make crucial decisions, like whether to plead guilty. In Padilla v. Kentucky, the Supreme Court held that the Sixth Amendment guarantee to effective counsel requires a lawyer representing an alien in criminal proceedings to advise the alien client if the offense to which the alien is pleading guilty could result in removal from the United States. The Court noted that under current immigration law, removal is "nearly an automatic result for a broad class of noncitizen offenders." Thus, the Court reasoned, "[t]he importance of accurate legal advice for noncitizens accused of crimes has never been more important." Recognizing that "[i]mmigration law can be complex, and ... some members of the bar who represent clients facing criminal charges ... may not be well versed in it," the Court added that "[w]hen the law is not succinct and straightforward ... a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences." But when the INA is clear about the deportation consequences of a particular crime, the Court admonished, "the duty to give correct advice is equally clear."

What Constitutes a Conviction?

Numerous criminal grounds for inadmissibility and deportability require the rendering of a conviction for a particular crime to be applicable. INA § 101(a)(48)(A) provides two definitions for what constitutes a conviction for INA purposes. First, INA § 101(a)(48)(A) defines a conviction as a formal judgment of guilt entered by a court. Generally, in federal cases, the final judgment ordered by the district judge contains the formal judgment of guilt. A state court's written judgment and sentence would qualify as well. If a conviction is vacated or set aside because of substantive or procedural defects in the criminal proceedings, the conviction no longer qualifies as a "conviction" under INA § 101(a)(48)(A). However, a conviction that is vacated or set aside for rehabilitative purposes (e.g., under state laws that permit a judge to expunge convictions for simple drug possession) or solely for the purpose of avoiding immigration consequences, still qualifies as a conviction under the INA. The same is true for expunged convictions: INA § 101(a)(48)(A) has been interpreted to exclude expunged convictions, unless the expungement was allowed solely for rehabilitative purposes.

A second definition of conviction exists for situations in which adjudication of guilt has been withheld: There is also a "conviction" if (1) a judge or jury has found the alien guilty, or the alien pleaded guilty or nolo contendere, or the alien has admitted sufficient facts to be found guilty, and (2) the judge has ordered some sort of punishment, penalty, or restraint on the alien's liberty. Qualifying nonconfinement judicial orders can include probation and restitution. Thus, even for crimes requiring a conviction for immigration consequences to attach, there need not be, necessarily, a formal judgment of guilt or a sentence of imprisonment imposed.

Approaches to Determine Whether a Criminal Conviction Triggers Immigration Consequences

Although the INA, on some occasions, expressly identifies conduct referenced in a criminal statute that would render an alien removable or ineligible for certain relief, in many instances the INA simply refers to a general category of criminal behavior that carries immigration consequences. Accordingly, reviewing courts and immigration authorities must sometimes determine whether the range of conduct covered by an alien's criminal conviction falls within the scope of criminal conduct proscribed by the INA.

The Supreme Court has instructed that, to make such a determination, reviewing courts should apply a "categorical approach," in which they compare the elements of the offense of conviction to the generic federal definition of the predicate crime. Under this approach, reviewing courts may look only to the statutory elements of the crime of conviction, rather than the particular facts of the case, in analyzing whether the crime "categorically fits" within the corresponding federal generic offense. In doing so, the courts must presume that the conviction was based on the least culpable conduct under the criminal statute. If the crime of conviction "sweeps more broadly" than the generic offense identified by the INA as grounds for an alien's removal, the criminal conviction cannot serve as a basis for removal.

In some cases, however, the courts may look beyond the statutory definition of a criminal offense when the statute lists multiple, alternative elements of a crime, and only some of those alternatives correspond to the generic offense identified by the INA as carrying immigration consequences. Under this "modified categorical approach," courts may examine the underlying conviction documents, such as the charging papers or plea agreement, to determine which statutory elements a defendant was convicted of, and compare those elements to the federal generic offense. The Supreme Court has held, though, that a court may not apply this approach merely when a statute contains a "single, indivisible set of elements" that cover "a broader swath of conduct than the relevant generic offense." Instead, "[a] court may use the modified approach only to determine which alternative element in a divisible statute formed the basis of the defendant's conviction."

The strict limitations of the categorical and modified categorical approaches do not apply, however, when a comparison between the criminal statute and a generic offense requires an examination of the "particular circumstances in which an offender committed the crime on a particular occasion." Applying this "circumstance-specific" exception, a number of reviewing courts have held that an adjudicator may consider evidence outside the conviction record to determine whether a criminal conviction involved factors specified in a generic offense that are not tied to the elements of a criminal statute. For example, the courts have considered evidence as to whether a fraud offense met a $10,000 loss threshold (a monetary threshold that must be exceeded for the offense to constitute an aggravated felony under the INA), or whether a drug conviction involved the personal use of 30 grams or less of marijuana (in which case the drug conviction would not be a deportable offense).

In practice, the BIA employs the categorical and modified categorical approaches to determine whether a criminal conviction meets the definition of a predicate offense for immigration purposes. Following the Supreme Court's guidance, the BIA generally limits its analysis of criminal convictions to the statutory elements of the crime, rather than the specific facts underlying the conviction. The BIA will turn to the record of conviction only in cases in which the statute has a divisible structure that lists alternative elements of an offense, only some of which categorically match the generic offense identified by the INA as carrying immigration consequences.

Previously, however, in analyzing whether a criminal conviction is a crime involving moral turpitude, the BIA adopted a less restrictive form of the categorical approach that merely examines "whether there is a 'realistic probability,' as opposed to a 'theoretical possibility,' that the statute under which the alien was convicted would be applied to reach conduct that does not involve moral turpitude." Under that analysis, if the criminal statute realistically could reach conduct not involving moral turpitude, an adjudicator could look to the record of conviction as well as "any additional evidence the adjudicator determines is necessary or appropriate to resolve accurately the moral turpitude question."

Ultimately, after several reviewing courts rejected this formulation, the BIA ruled that the categorical and modified categorical approaches—as outlined by the Supreme Court—are the proper methods for determining whether an alien was convicted of a crime involving moral turpitude. The BIA, however, stated that it would continue using the realistic probability test when applying the categorical approach analysis; but, noting the circuit disagreement as to its appropriateness, announced that it would apply the controlling law of circuits that have expressly disavowed that approach. The BIA also held that application of the modified categorical approach was limited to circumstances in which the statute is divisible and lists offense elements in the alternative. And using this approach, the BIA clarified, adjudicators may look to only the record of conviction to determine which element formed the basis for the alien's conviction.

Interpreting the INA Predicate Offense

In many instances Congress did not incorporate a statutory definition when defining a predicate offense that carries immigration consequences, leaving it up to the courts to carve out a generic definition. For example, the INA includes as an aggravated felony "a theft offense (including receipt of stolen property)" for which the term of imprisonment is at least one year, but does not define that phrase. To fill that gap, the appellate courts have generally eschewed the more restrictive, common law definitions of "theft" or "larceny" for a broader and more modern construction: The "taking of property or an exercise of control over property without consent with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent."

In defining the scope of other undefined predicate offenses, the courts have been less consistent. For example, the INA also includes as an aggravated felony "murder, rape, or sexual abuse of a minor." Until the Supreme Court's decision in Esquivel-Quintana v. Sessions , there was some disagreement among reviewing courts and the BIA over the scope of offenses constituting "sexual abuse of a minor" under the INA, with the BIA broadly interpreting the phrase to cover any sexually explicit conduct with a person under 18. In Esquivel-Quintana , however, the Supreme Court construed the phrase as having a more limited scope and held that, for statutory rape offenses based solely on the age of the participants, the term "sexual abuse of a minor" requires the age of the victim to be less than 16.

Even in cases that involve interpreting an INA provision in which Congress has expressly incorporated a federal statutory provision to define a predicate offense, the courts sometimes have struggled to interpret that definition consistently. As mentioned above, INA § 101(a)(43) includes as an aggravated felony a "crime of violence" as that term is defined in 18 U.S.C. § 16, and for which the term of imprisonment is at least one year. 18 U.S.C. § 16 defines a crime of violence as either (1) "an offense that has an element the use, attempted use, or threatened use of physical force against the person or property of another"; or (2) "any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense."

Initially, a question raised was whether a "crime of violence," as defined in 18 U.S.C. § 16, requires a particular mens rea , or mental state. Lower courts had reached varying conclusions over the state of mind that a person must possess in order to commit a crime of violence. Some courts, for example, had ruled that grossly negligent behavior was sufficient to meet the definition, whereas other courts required a showing of recklessness or specific intent. Eventually, in its 2004 ruling in Leocal v. Ashcroft , the Supreme Court held that a crime of violence requires an "active employment" of force with "a higher degree of intent than negligent or merely accidental conduct."

More recently, in October 2017, the Supreme Court heard oral argument in Session s v. Dimaya to address the circuit split about whether the second clause in the definition of a crime of violence—"any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person of property of another may be used in the course of committing the offense" —is unconstitutionally vague.

Issues for Congress

Congress has repeatedly amended the INA to expand, curtail, or otherwise modify the immigration consequences of criminal conduct, and legislative proposals to alter the current framework are regularly introduced. For instance, Congress may legislate to expand or constrict criminal grounds for inadmissibility and deportability. Congress also could add or subtract crimes from those listed as aggravated felonies and clarify what crimes involve moral turpitude. Additionally, Congress could modify the number of crimes that would render an alien statutorily ineligible for relief from removal or those that preclude a finding of good moral character. Further, Congress could clarify certain terminology in the INA that some courts have deemed ambiguous, like crime of moral turpitude and crime of violence. In short, given the immigration consequences that may follow from criminal activity, Congress may consider various legislative options that would modify the standards employed by the courts and relevant immigration authorities to determine whether an alien may be excluded or deported from the United States due to criminal conduct.