crimes involving moral turpitude (cimts)

Crimes Involving Moral Turpitude (“CIMTs”)

by Marshall H. Hong, J.D.www.Hong-Immigration.com

www.ImmigrationInfoSite.com

This Presentation is not intended as a substitute for personalized legal advice from a qualified immigration attorney.

This Presentation is intended to give a general overview of Crimes Involving Moral Turpitude, which could result in Deportation.

If you are not a U.S. Citizen and you have been charged with a crime, or if you are already facing Deportation due to a Criminal Conviction, you should consult with a qualified immigration attorney in your area for advice and possible representation.

At the conclusion of this Presentation you will find contact information for the Author – please feel free to contact the Author if you have specific questions or would like additional information on this or other immigration law topics.

Disclaimer

If you are residing in the U.S. and you are not a U.S. Citizen, certain Criminal Convictions could result in negative consequences with respect to your immigration status, which include:

Deportation from the United States. Refusal of Admission back into the United States

after temporary foreign travel (a/k/a Exclusion or Inadmissibility).

Denial of an Application for immigration benefits such as Lawful Permanent Resident Status.

Denial of an Application for Naturalization (Citizenship).

Criminal Convictions &Immigration Status

When a non-citizen individual is found to be “inadmissible”, this means that he can be refused admission (lawful entry) into the United States at a port of entry, or denied an immigration benefit, such as naturalization, or adjustment of status to permanent residence.

When a non-citizen individual is found to be “deportable”, this means that he is physically present in the United States, but can be ordered removed/deported from the United States.

Certain criminal convictions can make an individual inadmissible, deportable, or both.

Deportability vs. Inadmissibility

There are several classifications of Criminal Convictions that can result in Deportability or Inadmissibility:

Crimes Involving Moral Turpitude (“CIMT”). Aggravated Felonies. High Speed Flight. Controlled Substance-Related Crimes. Crimes Involving Firearms. Domestic Violence Crimes. Miscellaneous Crimes.

Classification of Crimes

This Presentation will focus on the issue of which crimes can be classified as Crimes Involving Moral Turpitude (“CIMTs”). Please visit


for information, articles, and other materials regarding other classifications of crimes, the consequences of which could include Deportation, Exclusion, and Denial of Immigration Benefits (such as citizenship or permanent residency)

Convictions & Deportation

In most cases, a criminal charge must result in a “conviction” before it can lead to inadmissibility or deportability.

However, in the case of Crimes Involving Moral Turpitude (“CIMTs”), an individual could be found inadmissible even when there has not been a “conviction”. If an individual admits to an immigration officer or consular

officer, that he has committed a CIMT, or if he admits to having committed all of the acts that make up the “essential elements” of a CIMT, he could be found to be “inadmissible”.

By contrast, to be found deportable, an individual must have been “convicted” of a CIMT.

Need not be a “conviction”

The “essential elements” of a crime are all of the acts, omissions, or intentions, that the prosecution must prove in order to show that a crime - as defined by the criminal code - has been committed by a defendant.

The criminal code (or statute) is the written law as enacted by the federal, state, or municipal legislative body, that defines what acts or omissions are considered to be criminal conduct.

For an individual to be found guilty of having committed a crime, the prosecution must show that ALL of the “essential elements” of the crime have been committed.

“Essential Elements” of a CIMT

For example, under Illinois law, the crime of “theft” is defined as follows (from 720 ILCS 5/16-1): A person commits “theft” when he or she knowingly:

obtains or exerts unauthorized control over property of the owner . . . AND

intends to deprive the owner permanently of the use or benefit of the property.

(Note: the full statute includes other possible alternative elements, but the above excerpt gives a complete list of “essential elements” for one version of the crime of theft as defined in the Illinois Criminal Code)

“Essential Elements” of a CIMT(an example)

In the above example, note that the “essential elements” are listed in bold print:

i. knowinglyii. exerts unauthorized control over the property of the owneriii. with the intentiv. to deprive the owner permanently of the use or benefit of the

property

If any of the above elements are absent, then the crime of theft has not been committed.For example, if the accused did not have the intent to deprive the owner permanently of the use or benefit of the property (i.e. his intention was only to “borrow” the property), then he has not committed a theft.

“Essential Elements” of a CIMT(an example - continued)

Similarly, if the exercise of control over the property of another is not unauthorized, then a theft has not been committed:

i.e. the owner of the property authorized (gave permission to) the accused to exert control over the property


Using the above example (the crime of “theft” in Illinois), if an individual admits to an immigration officer or consular officer that he has (i) knowingly (ii) exerted unauthorized control over the property of an owner (iii) with the intent (iv) to deprive the owner permanently of the use or benefit of the property, then the individual can be found to be “inadmissible”, even if he has never been convicted of the crime of “theft”.(It is important to note that such an admission must be voluntary, and the individual must have been provided with a definition of all of the “essential elements” of the crime prior to his admission, before a finding of “inadmissibility” can be made.)


As noted above, although admitting to the “essential elements” of a CIMT can lead to a finding of “inadmissibility”, a conviction is still required before a CIMT can lead to a finding of “deportability”.

“Conviction” required for “Deportability”

It is important to note that a “conviction” for immigration law purposes may not be the same as a “conviction” under the criminal laws of your state. If you have been charged with a crime, and the criminal court disposed of the charge with an order other than a “conviction” – or if the case is still pending and the prosecutor offers an alternative disposition instead of a “conviction”, in exchange for your plea of guilty - you should consult with a qualified immigration attorney to determine whether it will be considered a “conviction” for immigration law (Deportation) purposes.

When is it a “conviction”

For Immigration Law purposes, under the Immigration and Nationality Act (“INA”), a “Conviction” is defined as follows:

A person has been “convicted” of a crime if a criminal court (judge) has found that person guilty and has entered a formal judgment of guilt against that person.

In some cases, even if the court has not entered a formal judgment of guilt, a person may still be considered to have been “convicted” (for immigration law purposes) if the person was found guilty, or has entered a plea of guilty, and the judge has entered some form of punishment or restraint on the person’s liberty (for example, an order of Probation or Supervision).

“Conviction” Defined

The following dispositions of criminal charges are NOT considered to be “Convictions” for immigration law purposes:

Acquittals and other findings of “Not Guilty”. Charges that have been dismissed by the prosecutor. Cases resulting only in the imposition of court costs. Certain diversionary programs where the defendant

agrees to participate in some rehabilitative or other program, without an admission or finding of guilt.

Certain cases in which a conviction has been vacated on due process or constitutional grounds (and not solely to avoid immigration consequences).

Which Dispositions are NOT Considered “Convictions”?

The term “Crimes Involving Moral Turpitude” (“CIMTs”) refers generally to a range of crimes that are considered to be base, vile, or depraved. The characterization is based on the “evil intent” or “corrupt mind” of the perpetrator of the crime. While there is no clearly defined list of crimes considered to be CIMTs, they are usually those crimes that involve fraud or dishonesty, sex crimes, and those crimes involving serious harm or injury to another.

Crimes Involving Moral Turpitude

When an individual has been “convicted” of a CIMT, or has admitted to an immigration officer or consular officer that he has committed a CIMT, or that he has committed all of the “essential elements” of a CIMT, he will be “inadmissible”.

CIMTs and “Inadmissibility”

If an individual has been convicted of only a single CIMT, and that CIMT is considered to be a “petty offense”, then the individual will not be “inadmissible”.A CIMT is considered to be a “petty offense” when the maximum possible penalty for the crime is less than one year of imprisonment and when the actual sentence imposed is less than six months of imprisonment.

“Petty Offense” Exception

For a CIMT to be a “deportable” offense:i. the alien must have been “convicted”

(see above); ii. the CIMT must have been committed

within 5 years of the alien’s admission into the U.S.; and

iii. the CIMT must also be one that is punishable by a sentence of one year or more (even if the actual sentence is less than one year).

CIMTs and “Deportability”

A non-Citizen may also be Deported if he has been convicted of two or more CIMTs “not arising out of a single scheme of criminal misconduct”

Under this section of the law, the crimes can have been committed at any time after admission into the U.S. In other words, unlike Deportability for a single CIMT conviction, there is no requirement that the CIMTs have been committed within 5 years of admission into the U.S. to render the alien Deportable.

Multiple CIMT Convictions

Some examples of crimes that have been found to be CIMTs: Robbery Arson Fraud Assault resulting in serious bodily injury Sex Crimes (an alien may also be Deportable for failure

to register as a Sex Offender if required to do so by law) Retail Theft

(the proper determination of whether a crime is a CIMT may vary from state to state and may require analysis by a qualified immigration attorney)

Examples of CIMTs

An alien will be Deportable if, at any time after admission to the U.S., he is convicted of a crime involving: Domestic Violence; Stalking; Child Abuse, Child Neglect, or Child Abandonment; or the Violation of an Order of Protection.A crime of violence will be considered “Domestic Violence” if it is committed against the perpetrator’s spouse, against a person with whom the perpetrator has a child, or against a person who resides with the perpetrator.(Note: A conviction for Domestic Violence may also make an individual “inadmissible” or “deportable” as a CIMT.)

Domestic Violence & Related Crimes

Due to space limitations, this Presentation is necessarily an incomplete and generalized overview of Crimes Involving Moral Turpitude. If you have been charged with or convicted of a crime, or are facing Deportation Proceedings for a Criminal Conviction, you should consult with a qualified immigration attorney to determine:

Whether the conviction can be classified as a Crime Involving Moral Turpitude (“CIMT”);

Whether you can vacate the conviction to avoid inadmissibility or deportation; and/or

Whether you are eligible for any other form of Relief from Removal, such as Cancellation of Removal, or a Waiver.

Deportability and Relief from Removal

If you are not a U.S. Citizen, and you have been charged with or convicted of a crime, it is important that you consult with a qualified immigration attorney regarding your options and how the charge or conviction may affect your status in the U.S., including the possibility of Deportation.

If you have been arrested, even if you believe you were not convicted, you may still wish to consult with an immigration attorney, as the definition of “conviction” for immigration law purposes may differ from the definition of “conviction” under the laws of the state in which you were arrested.

This presentation is intended only as a general overview and does NOT attempt to answer your individualized questions. For more information on these and other immigration law issues, please visit:


Conclusion

For More Information, visit us at:

www.ImmigrationInfoSite.comwww.Hong-Immigration.com

or contact Marshall Hong by email at:

[email protected]

crimes involving moral turpitude (cimts)

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