When attorneys represent clients simultaneously facing challenges in both criminal law and immigration, they need to fully understand the implications of the overlapping legal concerns. The problems are often exacerbated by the fact that clients who seek legal advice for one problem may be afraid or embarrassed to admit that they are also struggling with another. A client facing drug charges may not tell their criminal lawyer that they have overstayed a visa. A client seeking removal relief may not voluntarily inform their immigration attorney that they have been charged with a DUI. When immigration law intersects with criminal law, clients face very high stakes and this makes the attorney’s job much more difficult.
Immigration Consequences Can Impact Legal Immigrants
A common misconception among the public is that immigration issues are only worrisome for individuals who are “undocumented” or in the country with an illegal status. However, immigrants with valid visas—even those with lawful permanent resident status who are otherwise eligible for citizenship—are at risk of removal or other negative immigration consequences if they are convicted of certain types of crimes. Therefore, when dealing with any criminal accusations against an individual who is not a citizen, it is important to understand the impact that various outcomes can have on immigration status. A plea arrangement that might be the most beneficial for many clients could have disastrous consequences for an immigrant who is trying to gain citizenship, obtain a work permit, or gain some form of relief from removal.
While most criminal attorneys are aware of a duty to warn immigrants of immigration consequences of a conviction or plea, it is often difficult to discern precisely what triggers that duty and when and how immigration consequences can apply.
Crimes of Moral Turpitude
Immigrants who are applying for a green card, seeking a temporary visa, applying for citizenship, or trying to avoid removal will have a difficult time achieving their goals if they have a conviction on the record for a “crime involving moral turpitude,” referred to by U.S. Citizenship and Immigration Services as a “CIMT.” In fact, even if they have not been convicted, if an immigrant admits to committing a CIMT, that can be enough to trigger immigration consequences. Unfortunately, it is not always clear which crimes fall under this classification.
The term is not defined by statute or regulation. Instead, it is necessary to look to the Board of Immigration Appeals and federal courts to try to determine what constitutes a CIMT. USCIS refers to a definition used by the 4th Circuit Court of Appeals in Medina v. U.S., 259 F.3d 220 (4th Cir. 2001) quoting the BIA decision Matter of Danesh, 19 I.N. Dec. 669, 670 (BIA 1988), which describes moral turpitude as referring “generally to conduct that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed between man and man, either one’s fellow man or society in general.”
Some courts have said that an actor must have “evil intent” or act recklessly for a crime to be one of moral turpitude. Others have described CIMT as those that are “intrinsically wrong.”
The bottom line is that the definition is subject to interpretation. Crimes that are not penalized severely and classified as misdemeanors have been held to be crimes of moral turpitude. It is important to look at how local courts have interpreted specific crimes for guidance. A seemingly minor offense such as driving without a license could be viewed as a crime of moral turpitude if there is deemed to be an element of fraudulent intent.
Permanent and Conditional Bars to Good Moral Character
USCIS considers convictions for certain crimes to be such an indication of an individual’s moral character that immigrants convicted of these crimes are permanently barred from naturalization because they will never be able to demonstrate the requisite good moral character. These crimes include murder, trafficking in drugs or firearms, rape, sexual abuse of a minor, and money laundering offenses over $10,000. Violent crimes and theft crimes with a prison term of at least one year are also on the list. So are child pornography offenses and document fraud. The list is extensive.
In addition to the permanent bars to citizenship, there are crimes that create what is essentially a potential or temporary bar to citizenship. An individual with convictions for certain offenses or combinations of offenses may be able to establish good moral character if they can behave for a certain amount of time after the conviction. This list includes some crimes of moral turpitude, controlled substance violations, engaging in prostitution, or offenses with combined sentences of five years or more or actual incarceration for 180 days or more.
Collaboration May Be the Most Effective Way to Protect Vulnerable Clients
It is extremely difficult to keep abreast of the most effective strategies for protecting clients under both state criminal law and federal immigration law. Interpretations change quickly. To ensure that clients who are vulnerable to criminal charges and immigration consequences receive the advice and outcome best suited to their long-term needs and goals, it is wise for criminal attorneys and immigration attorneys to seek each other’s advice when necessary.