Tooby's California Post-Conviction Relief for Immigrants

 

(B)

Immigration Effects.  This exception has broad effects in a number of different immigration contexts. 

 

(1)  Admissibility.  The major and most direct effect of a conviction of a crime of moral turpitude is on the noncitizen’s admissibility.  If the immigrant leaves the United States, and wants to return, s/he must be admissible to do so (even if s/he has Lawful Permanent Resident status).  With a felony conviction of a crime of moral turpitude, the immigrant will be excludable at the border,[37] and cannot qualify for the Petty Offense Exception, because the maximum punishment is greater than one year.

 

(2)  Cancellation for Lawful Permanent Residents.  A noncitizen who has (among other requirements) seven years of continuous lawful residence in the United States, prior to the commission of an offense that triggers removal or inadmissibility, can remain in the United States as a Lawful Permanent Resident even though s/he may be deportable for crimes.  The accrual of this period of continuous residence ends upon the commission of an offense listed in 8 U.S.C. § 1182(a)(2) that renders the noncitizen inadmissible or deportable for crimes.  A conviction of a crime of moral turpitude is listed in 8 U.S.C. § 1182(a)(2)(A)(i)(I) as triggering inadmissibility.  It does not, however, trigger inadmissibility if the immigrant qualifies for the Petty Offense Exception to inadmissibility.[38]  Reduction of a conviction of a crime involving moral turpitude from a felony to a misdemeanor will enable the noncitizen to qualify for the maximum-punishment requirement of the Petty Offense Exception, and thereby avoid inadmissibility for one conviction of a crime of moral turpitude, and disqualification from this form of Cancellation of Removal.

 

(3)  Cancellation for Non-Lawful Permanent Residents.  A noncitizen who is inadmissible for crimes is barred from showing good moral character, which is a requirement for obtaining many forms of immigration benefit.[39]  A noncitizen must show good moral character to qualify for Cancellation of Removal for Non-Lawful Permanent Residents.[40]  Moreover, the immigrant must not have been convicted of an offense triggering inadmissibility under 8 U.S.C. § 1182(a)(2).[41]  Reduction of a felony conviction of a crime involving moral turpitude can assist the noncitizen to qualify for the Petty Offense Exception, and thereby avoid inadmissibility for crimes and avoid the inadmissibility bar to showing Good Moral Character.

 

(4)  Good Moral Character.  A noncitizen who is inadmissible for crimes is barred from showing good moral character, which is a requirement for obtaining many forms of immigration benefit.[42] 

 

(5)  Adjustment of Status to Lawful Permanent Resident.  In order to adjust status to Lawful Permanent Resident, an immigrant must also be “admissible.”  A single felony conviction for a crime of moral turpitude will constitute a bar.  If it can be reduced to a misdemeanor, the maximum becomes one year, and the immigrant can qualify for the Petty Offense Exception to inadmissibility if s/he is otherwise eligible for the exception.

 

(6)  Naturalized Citizenship.  In order to become a naturalized United States citizen, a Lawful Permanent Resident must show Good Moral Character for a certain period of time.[43]  Reduction of a felony conviction of a crime involving moral turpitude to a misdemeanor can assist the noncitizen to qualify for the Petty Offense Exception, and thereby avoid inadmissibility for crimes and disqualification from naturalization.

 

(7)  Registry.  Registry is a form of relief enabling an immigrant who has been present in the United States since 1972 to obtain Lawful Permanent Resident status.  This form of relief requires the noncitizen to show Good Moral Character for a certain period of time.[44]  Reduction of a felony conviction of a crime of moral turpitude would assist an immigrant to qualify for the Petty Offense Exception and thus avoid the inadmissibility bar to showing Good Moral Character, so as to qualify for this relief.

 

(8)  Suspension of Deportation.  The general form of relief now known as Cancellation of Removal for Non-Lawful Permanent Residents was formerly known as “Suspension of Deportation.”  To qualify for this form of relief, it was necessary to show Good Moral Character for a certain period of time.[45]  Reduction of a felony conviction of a crime of moral turpitude would assist an immigrant to qualify for the Petty Offense Exception and thus avoid the inadmissibility bar to showing Good Moral Character, so as to qualify for this relief.

 

(9)  Violence Against Women Act Relief.  The VAWA provides a special form of adjustment of status, and a special form of cancellation of removal, for noncitizens who have been victims of spousal abuse perpetrated by a person who is a citizen or Lawful Permanent Resident of the United States.[46]  These forms of relief require the applicant to show Good Moral Character for a certain period of time.  Reduction of a felony conviction of a crime involving moral turpitude can assist the noncitizen to qualify for the Petty Offense Exception, and thereby avoid inadmissibility for crimes and avoid the inadmissibility bar to showing Good Moral Character.

 

(10)  Voluntary Departure at End of Removal Proceedings.  A noncitizen may qualify for Voluntary Departure, at the end of removal proceedings, if s/he can show Good Moral Character for a period of five years.[47]  Reduction of a felony conviction of a crime of moral turpitude would assist an immigrant to qualify for the Petty Offense Exception and thus avoid the inadmissibility bar to showing Good Moral Character, so as to qualify for this relief.

[37] 8 U.S.C. § 1182(a)(2)(A)(i)(I).

[38] 8 U.S.C. § 1182(a)(2)(A)(ii)(II).

[39] 8 U.S.C. § 1101(f)(3).

[40] 8 U.S.C. § 1229b(b)(1)(B).

[41] 8 U.S.C. § 1229b(b)(1)(C).

[42] 8 U.S.C. § 1101(f)(3).

[43] N. Tooby & J.J Rollin, Criminal defense of immigrants § 24.13 (2007).

[44] INA § 249, 8 U.S.C. § 1259.

[45] INA § 244(a)(1), 8 U.S.C. § 1254(a)(1).

[46] 1994 Violent Crime Control and Law Enforcement Act, Pub. L. 103-322, § 40701 (September 13, 1994).  See also Violence Against Women Act of 2000 (effective October 28, 2000).

[47] INA § 240B(b)(2), 8 U.S.C. § 1229c(b)(2).