The Immigration and Nationality Act (INA) at section 237 allows the Department of Homeland Security DHS, through U.S. Immigration and Customs Enforcement (ICE) to deport someone who has committed a crime involving moral turpitude, commonly referred to a CIMT, if the conviction occurred within five (5) years after admission and the conviction was for a crime for which a sentence of one year or longer may be imposed. Note that deportation or removal is not the same as being denied entry into the United States . This article focuses solely on deportation. If you have concerns about how your conviction will effect your entry or return to America , you should contact an immigration attorney.
Notice that the language of the statute says, may be imposed. This means that even if you are sentenced to six months in jail, if the law says that you could have been sentenced to a year or more, this could bring you within the INA regarding a CIMT.
The issues that surround a CIMT for deportation are not settled. For example, some have disputed the language of the statute regarding, five years after the date of admission. Does this mean five years from when you came to the U.S. or five years after you became a permanent resident? This distinction can be very important because, if you arrived in the U.S. several years ago but only recently became a permanent resident, the five years would not apply to you if the law looks at your initial entry or admission date, but if the law uses the date you became a permanent resident, this would be a problem.
Another area of concern is in regards to criminal laws criminalize more than one type of conduct, action, etc. That is to say, you might be convicted under a law that includes conduct that involves moral turpitude and conduct that does not. These types of laws are referred to as divisible laws in the immigration context. In such cases, the immigration court must look at whether it can determine by the record of the conviction whether the crime for which you were convicted, in fact, was a CIMT or not. There is a very detailed analysis that your immigration lawyer must undertake in representing you on this type of case. This analysis includes determining whether the categorical or modified categorical approach must be taken in your case. The categorical and modified categorical approaches are beyond the scope of this article, but are very important and can make the difference between winning your case and deportation.
Lastly, there are some crimes that are clearly recognized as involving moral turpitude and others that are not so clear. An analysis of whether your particular conviction is an CIMT is another area that your immigration attorney must determined. Note also that this article focuses solely on deportation. If you have concerns about how your conviction will effect your entry or return to America , you should contact an immigration attorney.
Similar to criminal cases, U.S. Immigration and Customs Enforcement does not always charge you under the proper section of the INA and in some instances, they charge people with completely inappropriate grounds of removal. In addition, merely because ICE charges you with being deportable, doesn't mean that you don't have a defense to deportation. An experience immigration lawyer can help defend against these charges.
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