Criminal Defense of Immigrants

(G)  Criminal Issues.  While adjustment of status is not per se precluded for someone even with a serious criminal record,[44] a person who falls within a ground of inadmissibility cannot obtain adjustment of status unless a waiver is granted.[45]  At least two courts have held that an adjustment granted through a mistake on the part of the DHS, where the noncitizen was inadmissible, cannot confer lawful permanent resident status.[46]  Waivers of inadmissibility that may be used in conjunction with an application for adjustment of status include waivers under INA § § 212(d)(11) (alien smugglers), 212(h) (certain criminal grounds), 212(i) (false statements), and former 212(c).  See § § 24.28-24.30, infra.[47]

        One conviction for a crime of moral turpitude, not falling within the Petty Offense, Political Offense, or Youthful Offender Exception, will give rise to inadmissibility.  See § § 20.26-20.31, supra.  A noncitizen convicted of multiple crimes of moral turpitude is ineligible for the Petty Offense or Youthful Offender Exception, and therefore must obtain a waiver of inadmissibility under INA § 212(h) before s/he will be allowed to obtain adjustment of status.  See § 24.29, infra.

Since an aggravated felony conviction does not constitute a ground of inadmissibility, it does not directly bar a noncitizen from obtaining lawful permanent resident status through “adjustment of status.”  This type of conviction, however, will often also trigger a different ground of inadmissibility and thereby bar a noncitizen from adjusting status.  For example, a sexual abuse of a minor conviction does not bar inadmissibility as an aggravated felony, which does not trigger inadmissibility, but because the conviction is also a crime of moral turpitude, which does.  If the aggravated felony conviction does not make the person inadmissible under any other ground of inadmissibility, or the if crime of moral turpitude ground of inadmissibility falls within the Petty Offense Exception,[48] or is waived, the noncitizen is eligible to apply for adjustment of status even though the offense is an aggravated felony. 

Once a noncitizen has been deported after suffering an aggravated felony conviction, s/he is permanently inadmissible and ineligible to return to the United States, although a waiver of this ground of inadmissibility is available in the Attorney General’s discretion.  See § 18.10, supra.

[44] See, e.g., Rashtabadi v. INS, 23 F.3d 1562 (9th Cir. 1994) (all factors must be considered; after conviction of fraudulent hostage scheme, discretionary denial of adjustment reversed and remanded based on BIA’s failure to consider rehabilitation).

[45] Adjustment of status occurs on date full adjustment is granted, rather than on the date the noncitizen makes application for adjustment of status.  Therefore, a noncitizen granted temporary resident status, see § 24.11, infra, must seek a waiver for any convictions committed after becoming a TPR.  Perez-Enriquez v, Ashcroft, 383 F.3d 994 (9th Cir. Sept. 9, 2004). 

[46] Savoury v. United States Att’y Gen., 449 F.3d 1307 (11th Cir. May 25, 2006) (for purposes of qualifying for relief under former INA § 212(c)); Arellano-Garcia v. Gonzales, 429 F.3d 1183 (8th Cir. Dec. 7, 2005) (where DHS erroneously granted LPR status to noncitizen who had prior controlled substance/aggravated felony conviction, noncitizen was ineligible for INA § 212(c) relief in removal proceedings).

[47] See Matter of Azurin, 23 I. & N. Dec. 695 (BIA 2005) (adjustment of status in combination with a waiver under INA § 212(c), 8 U.S.C. § 1182(c) permitted even where the offense waived is also an aggravated felony); Matter of Gabryelsky, 20 I. & N. Dec. 750 (BIA 1993) (adjustment of status in combination with a waiver under INA § 212(h), 8 U.S.C. § 1182(h) or INA § 212(c), 8 U.S.C. § 1182(c) is available as a defense to deportation).

[48] INA § 212(a)(2)(A)(ii), 8 U.S.C. § 1182(a)(2)(A)(ii).