April 20, 2018
The Department of Homeland Security (DHS) states that one of their greatest priorities is to arrest and deport individuals with criminal convictions. Since the start of the Trump administration, the rate of arrests to seek the removal of individuals with criminal violations has risen significantly. With this heightened possibility of deportation, it is important for individuals to recognize the significant complexities of handling criminal violations under the immigration laws.
As an example, the Board of Immigration Appeals (BIA) issued a court ruling on April 20, 2018, that an offense of stalking under California Penal Code §646.9 is not a “crime of stalking” under the immigration laws. Matter of Sanchez-Lopez, 27 I&N Dec. 256 (BIA 2018). To a non-attorney or even an attorney who does not regularly practice immigration law, the thought that a criminal violation specifically for “stalking” is not a “stalking” violation under the immigration laws seems entirely illogical. However, under the analysis set forth in the court decision, a criminal violation may or may not actually be considered an immigration violation even when the very same words are used to describe the offense.
The reason for this complexity is because the immigration laws require a very detailed analysis of the specific elements of the crime committed. There are many instances where the elements under the criminal laws are different than the elements required under the immigration laws. A thorough assessment under both sets of laws are required to fully determine the effects that a criminal violation may have on an individual’s immigration status.
In the recent court case Matter of Sanchez-Lopez, the court’s ruling that his conviction for stalking was not a crime of stalking under the immigration laws was a tremendous victory. It resulted in removal proceedings being terminated against Mr. Sanchez-Lopez without him even needing to apply for a waiver, thereby allowing him to continue being a lawful permanent resident and potentially proceed with seeking US citizenship.
In those instances where the criminal conviction does render an individual removable from the United States, then understanding the various criminal waivers is key to determining whether removal can be prevented. One such waiver is the waiver under section 212(h) of the Immigration and Nationality Act. Under INA §212(h), an individual applying for permanent residency or seeking to prevent removal from the US may be granted a waiver for certain criminal convictions if one of the following is satisfied: (1) the crime is more than 15 years old from the date of applying for the waiver and the person has been rehabilitated; or (2) the individual can prove that a spouse, parent, or child would suffer “extreme hardship” if the individual is not allowed to obtain permanent residency or remain a permanent resident.
The §212(h) waiver is not available to those who have been convicted of a drug crime unless it is for simple possession of 30 grams or less of marijuana. The waiver is also not available to individuals who are already permanent residents if their conviction is an aggravated felony or if they fail to fulfill certain residency requirements in the US prior to initiation of removal proceedings.
Another such waiver is an application known as Cancellation of Removal. The requirements are different based on whether an individual is unlawfully residing in the United States or already a lawful permanent resident. Both have requirements as to length of residency in the United States and limitations on the type of criminal offense committed. Those who are unlawfully residing in the United States must also show hardship to a qualifying relative.
Given these complexities, any individual with a criminal conviction should ensure that they have an attorney that specializes in immigration law when applying for an immigration benefit, traveling abroad or seeking US citizenship, as these are the most common instances of when the DHS will discover an individual’s criminal background. Furthermore, it is always wise to consult with an immigration attorney before pleading to any criminal offense to determine whether a lesser criminal offense should be fought for so as to avoid possibly harsh immigration consequences.
For further information, please schedule an appointment with an attorney at Aquino & Loew, Immigration Law Specialists. Please also connect with us on Facebook and Twitter. Aquino & Loew also handles family law and criminal matters. Providing Personalized Service Nationwide & Abroad Since 1996.