Crimes of Moral Turpitude

 

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.  A noncitizen who committed more than one crime 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.

 

Adjustment of status is the process by which a person who is admissible may obtain legal permanent resident status through a visa petition, usually filed by a U.S. citizen or lawful permanent resident relative, or an employer, without having to travel outside the United States.[28]  Any noncitizen who is eligible to adjust, is not inadmissible, and has an immigrant visa immediately available may be allowed to adjust. 

 

It is also possible to obtain lawful permanent resident status by travelling outside the United States through “consular processing.”  See § 3.7, infra.  Immediate relatives can immigrate rapidly, since they may file the immigrant petition and the adjustment of status application simultaneously.[29]  Those subject to the preference quota system[30] may face a wait of months or years before being able to immigrate, with their place in line determined by the date on which they first filed their application with the DHS.[31] 

 

It is also possible for an eligible legal permanent resident (e.g., one who has a U.S. citizen spouse) to “re-immigrate” by filing an application for adjustment of status in removal proceedings as a defense to deportation.[32]  If granted, the renewed adjustment of status will be a complete defense to removal.[33]

 

            In some circumstances, noncitizens who entered the United States illegally, and had valid visa petitions filed on their behalf prior to April 30, 2001, may be able to adjust status to a lawful permanent resident.[7]  However, a noncitizen subject to a reinstated order of removal is not eligible to adjust status.[8]  Nor, generally, is a noncitizen who has been in the United States illegally for over one year.[34]  A noncitizen who has re-entered illegally following removal is generally also ineligible.[35]  A pending application for adjustment of status does not itself confer any legal status.[11]

            While adjustment of status is not per se precluded for someone even with a serious criminal record,[12] a person who falls within a ground of inadmissibility cannot obtain adjustment of status unless a waiver is granted.[13]  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.[14]  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 § § 3.43-3.45, infra.[15]

 

            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 § § 4.5-4.7, 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 § 3.44, infra.

 

On July 27, 2006, a new law was passed[36] that bars all United States citizens and permanent residents convicted, as adults, of certain sex offenses[37] committed against minors from petitioning for any family member to become a lawful permanent resident.[38]  A waiver of this bar is available only if the DHS determines that the petitioner poses no risk to the person seeking LPR status.[39]

Adjustment of status is handled somewhat differently for noncitizens who are asylees or refugees.[40]  A detailed discussion of this form of adjustment is beyond the scope of this book.  However, a special criminal waiver allowed for asylees and refugees seeking to adjust status is discussed at § 3.30, infra.

 

            For further discussion, see N. Tooby & J. Rollin, Criminal Defense of Immigrants § 24.2 (4th Ed. 2007).

[41] INA § 245, 8 U.S.C. § 1255; 8 C.F.R. § § 245.1-245.22, 1245.1-1245.22.

[42] 8 C.F.R. § § 245.2(a)(1), (2), 1245.2(a)(1), (2).  A person is classified as an immediate relative when s/he is the spouse, parent (of a child over 21), or unmarried child (under 21 years of age) of a U.S. citizen.  See INA § 201(b)(2)(A)(i), 8 U.S.C. § 1151(b)(2)(A)(i).

[43] A person is classified as a preference relative if s/he is the single son or daughter (over 21) of a U.S. citizen (1st Preference); spouse or unmarried child (under 21) of a lawful permanent resident (2A Preference); unmarried son or daughter (over 21) of a lawful permanent resident (2B Preference); married son or daughter of a U.S. citizen (3d Preference); or brother or sister of an adult U.S. citizen (4th Preference). INA § 203(a), 8 U.S.C. § 1153(a).  The children of preference relatives may obtain derivative status upon adjustment of their parents.  INA § 203(d), 8 U.S.C. § 1153(d).  The preferences for employment-based immigrant visas are controlled by INA § 203(b), 8 U.S.C. § 1153(b).  

[44] For a recorded message giving the priority dates and preferences for relative and employment-based immigrant visas, call the State Department at (202) 663-1514.  This information is also contained in the State Department “Visa Bulletin” which can be viewed online at http://travel.state.gov (select the Visa section, which contains the Visa Bulletin).

[45] Applications for adjustment by permanent residents are legally permitted.  See, e.g., Matter of Gabryelsky, 20 I. & N. Dec. 750 (BIA 1993); Matter of Parodi, 17 I. & N. Dec. 608, 611 (BIA 1980); Matter of Loo, 15 I. & N. Dec. 307 (BIA 1975).

[46] Matter of Rainford, 20 I. & N. Dec. 598 (BIA 1992).

[47] INA § 245(i), 8 U.S.C. § 1255(i).  See AILF Legal Action Center Practice Advisory, Applying for Adjustment of Status After Reentering the United States Without Being Admitted: I-212s, 245(i) and VAWA 2005 (Updated Oct. 19, 2006).  http://www.ailf.org/lac/vawa_2005.pdf

[28] Fernandez-Vargas v. Ashcroft, 394 F.3d 881 (10th Cir. Jan. 12, 2005) (the reinstatement statute, INA § 241(a)(5), 8 U.S.C. § 1231(a)(5), provides that a prior order of removal may be reinstated against a noncitizen who has illegally re-entered the United States, and (2) bars him or her from applying for any form of “relief” under Chapter 12 of U.S.C. Title 8, which includes adjustment of status under INA § 245(i), 8 U.S.C. § 1255(i)); Berrum-Garcia v. Comfort, 390 F.3d 1158 (10th Cir. Nov. 23, 2004) (noncitizen who illegally re-entered United States after removal is barred from applying for adjustment of status when DHS has reinstated original order or removal under INA § 241(a)(5), 8 U.S.C. § 1231(a)(5), regardless of whether application was filed before or after prior order has been reinstated).  See also Lino v. Gonzales. 467 F.3d 1077 (7th Cir. Nov. 6, 2006) (INA § 241(a)(5), 8 U.S.C. § 1231(a)(5)) precludes a previously removed noncitizen who has since illegally re-entered the United States from adjusting status under INA § 245(i), 8 U.S.C. § 1255(i), and petitioner does not fall within any exception to this statute).

[29] Matter of Lemus-Losa, 24 I. & N. Dec. 373 (BIA 2007) (adjustment of status under INA § 245(i), 8 U.S.C. § 1255(i) (2000), is unavailable to a noncitizen who is inadmissible under INA § 212(a)(9)(B)(i)(II), 8 U.S.C. § 1182(a)(9)(B)(i)(II)).

[30] See, e.g., Delgado v. Mukasey, 508 F.3d 702 (2d Cir. Feb. 7, 2008) (noncitizen inadmissible for illegal reentry after deportation, under INA § 212(a)(9)(C), is ineligible to adjust status under the LIFE Act); Duran-Gonzales v. Mukasey, 508 F.3d 1227 (9th Cir. Nov. 30, 2007) (barring adjustment of status under LIFE Act if noncitizen has been removed and illegally re-entered; rule applies even if I-212 petition for permission to re-enter following removal was filed prior to DHS filing to reinstate prior removal order), reversing Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004), deferring to BIA decision Matter of Torres-Garcia, 23 I. & N. Dec. 866 (BIA 2006) (holding plaintiffs ineligible as a matter of law to adjust their status because they are ineligible to receive I-212 waivers, because they have illegally re-entered the United States after removal, and have not yet been outside the United States for 10 years, as is required before seeking a waiver).  See also Matter of Briones, 24 I. & N. Dec. 355 (BIA 2007) (adjustment of status under INA § 245(i), 8 U.S.C. § 1255(i), is not available to a noncitizen who is inadmissible under unlawful presence bar of INA § 212(a)(9)(C)(i)(I), 8 U.S.C. § 1182(a)(9)(C)(i)(I)); Mortera-Cruz v. Gonzales, 409 F.3d 246 (5th Cir. May 9, 2005) (INA § 245(i), 8 U.S.C. § 1255(i) does not apply to noncitizens inadmissible to the United States under INA § 212(a)(9)(C)(i)(I), 8 U.S.C. § 1182(a)(9)(C)(i)(I), which makes permanently inadmissible noncitizens who enter the United States illegally after having previously been present in the United States for over one year); accord, Berrum-Garcia v. Comfort, 390 F.3d 1158 (10th Cir. 2004); cf. Lattab v. Ashcroft, 384 F.3d 8, 17 (1st Cir. 2004).  But see Padilla-Caldera v. Gonzales, 426 F.3d 1294 (10th Cir. Oct. 18, 2005), amended and superseded, 453 F.3d 1237 (10th Cir. Oct. 18, 2005) (LIFE Act applies to status violators who have been in the United States for an aggregate period of over one year). 

[31] United States v. Lucio, 428 F.3d 519 (5th Cir. Oct. 12, 2005) (conviction under 18 U.S.C. § 922(g)(5)(A) [possession of firearm by undocumented noncitizen] upheld since undocumented noncitizen’s immigration status remains unlawful during the pendency of an application to adjust status; mere fact that he has received permission to work in the country does not alter the initial unlawfulness of his immigration status).

[32] 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).

[33] 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 § 3.36, 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). 

[34] 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).

[35] 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).

[36] Adam Walsh Child Protection and Safety Act of 2006, PL 109-248  (effective July 27, 2006).  See DOS Cable Implementing Section 402 of the Adam Walsh Child Protection And Safety Act Of 2006 (P.L. 109-248), available at AILA InfoNet Doc. No. 07012564 (posted Jan. 25, 2007).

[37] As defined in section 111 of the Adam Walsh Child Protection and Safety Act of 2006.

[38] New INA § 204(a)(1), 8 U.S.C. § 1154(a)(1).

[39] Id.

[40] See INA § 209, 8 U.S.C. § 1159.