How Criminal Activity Affects Your Green Card Application
Wondering how criminal convictions and other criminal behavior affect your green card application? New Jersey immigration attorney Andres Mejer discusses the answer here.
US Citizenship Act & Criminal Behavior
I talked before about the U.S. Citizenship Act of 2021 (aka “USCA” or “Biden Bill”) that was introduced by Senator Menendez in February. I shared how this bill was designed to provide a pathway to citizenship for the 11 million undocumented people currently in the US.
One thing I didn’t talk about is the criminal law aspects of this bill. The bill includes ways your criminal history may impact your ability to get legal status in the future. It encourages the construction of a “smart wall,” and it adds more ways that you can be prosecuted and penalized under the law.
Some good news: It redefines the term conviction for immigration purposes. It increases the number of petty offense exceptions, and it creates waivers for many grounds of inadmissibility and deportability. Basically, it allows you to ask for forgiveness for things that would otherwise make you ineligible. It also asks for the 3 years, 10 years, and permanent bans to be lifted.
How to Get Legal Status Under the USCA
To receive status under the USCA, a person must NOT:
- Have a conviction for a Crime Involving Moral Turpitude. This is a vague category that has no statutory definition (this includes minor criminal conduct like shoplifting);
- Have any controlled substance conviction (possessing any illegal drug, which includes marijuana, even if it is legal in your state);
- Have any two or more convictions where you received an aggregate sentence of 5 years of imprisonment;
- Have any “trafficking” conviction for a controlled substance, that means any crime involving the sale and/or distribution of an illegal drug;
- Have any felony conviction under federal law. That means if you are convicted of a felony under state law, there needs to be an analysis of what that would be under federal law;
- Have three or more misdemeanors (except simple possession of marijuana, any marijuana offense that would not now be prosecutable under the state’s law, non-violent civil disobedience, or minor traffic offenses);
- Be deemed a security threat.
US Citizenship Act and Criminal Behavior
The USCA permits a humanitarian waiver of a CIMT, drug conviction, and other non-criminal ineligibility issues.
It also permits a waiver of the felony ground and the multiple convictions ground as long as:
- the felony is not an aggravated felony under INA 101(a)(43)(A) (murder, rape, or sexual abuse of a minor); and
- the person has no convictions during the 10-years before filing the application.
Finally, the USCA permits a waiver of one misdemeanor if the person has no convictions for the five years preceding the application; or two misdemeanors if the person has no convictions for ten years preceding the application.
A Re-definition of Conviction Under the USCA
What does a “redefinition of conviction” under the USCA? Under current immigration law, the definition of “conviction” includes outcomes that would not count as convictions for criminal law, including alternative disposition programs (where you agree to a probationary period and after successful completion of the probationary period the charges are dismissed) and expungements (that generally remove convictions from your criminal background).
The USCA redefines conviction to exclude these rehabilitative forms of relief, bringing the immigration definition of “conviction” more in line with the definition in the criminal legal system.
The Restoration of JRAD
Prior to 1990, state and federal judges in criminal cases had the ability to issue a Judicial Recommendation Against Removal (JRAD).
The JRAD kept immigration authorities from deporting the person based on that specific conviction, even if it otherwise would have constituted a ground of removal. The USCA restores JRADs, an important tool for reducing punitive consequences of convictions under current immigration law.
The USCA also wants to allow more humanitarian waivers. Outside the legalization program, the USCA restores discretion to the Department of Homeland Security (DHS) and immigration judges to waive one or more ground of inadmissibility (excluding security grounds) and to waive one or more grounds of deportability (excluding the security-related ground and aggravated felony ground, such as murder, rape, and sexual abuse of a minor).
This waiver would helpfully narrow the grounds of mandatory deportation and mandatory detention.
A Possible Repeal of the 3-year, 10-year, and Permanent Bar
The USCA suggests a repeal of all three bars currently in place – 3-year bar, 10 year-bar, and the permanent bar. However, it still imposes bars on the return of people who have been ordered removed.
The bars suggested in the Act vary in length depending on the circumstances, from 5 years to permanent (in the case of someone who has an aggravated felony conviction and was deported). It also provides for a waiver of these bars.
USCA Authorizes the Use of “Smart Technology” Strategy at the Southern Border
The USCA authorizes DHS to appropriate funds to deploy a “smart technology” strategy along the southern border. This means that they would use something like a drone or other technology to create a “wall” rather than using funds to build a physical barrier.
The USCA also adds an additional ground to 8 U.S.C. § 1324, penalizing someone with up to 15 years in prison if they, for-profit or financial gain, “knowingly directs or participates in a scheme to cause 10 or more persons (other than a parent, spouse, sibling, son or daughter, grandparent, or grandchild of the offender) to enter or to attempt to enter the United States unlawfully.”
This provision is extremely broad and has been weaponized to prosecute people providing humanitarian aid and exercising important First Amendment rights, so it is concerning to immigration advocates.
None of these are passed as law yet. None of this may become law. I agree with some of the suggested changes to the law and disagree with others. As this moves through Congress, I am sure there will be a give-and-take on both sides of the aisle to get it passed.
Contact Our New Jersey Immigration Attorney!
If you need help getting a legal status, a New Jersey immigration attorney can help. At Andres Mejer Law, we have immigration attorneys who can guide you through the legal process of applying for an immigration visa, Green Card, or American Citizenship. Contact us today for a free initial consultation.