Archive for February, 2008

U.S Citizenship Denied!

February 6, 2008

U.S CITIZENSHIP DENIED!? During this time of complex and ever changing immigration laws, an often overlooked area by non-U.S. Citizens is the effect of criminal convictions on one’s ability to remain legally in the United States.  

For instance, a couple is arguing loudly in their home.  A neighbor hears and thinks someone’s life is in danger, so they call the police.  The police arrive and decide to arrest and charge the man for domestic violence. 

If the man were a U.S. Citizen and he pleads guilty to a domestic violence charge, he would have to take some anger management classes and that it would probably be it.

 

However, if the man had a greencard and he pleads guilty to the crime the CIS (Citizenship and Immigration Services) could place him in deportation proceedings and deport him back to his home country depending on the length of the sentence imposed. This is because the Immigration Service views certain crimes that are otherwise classified as misdemeanors by the state court (crimes punishable by less than a year in prison) as felonies (crimes punishable by more than one year in state prison). This could also affect his application to naturalize. Why does the Immigration Service take such a position?  Bestowing U.S. Citizenship on person is a privilege, not a right.  As with most privileges, the Immigration Service is looking for those individuals who can contribute positively to America, not become a drain on its resources.

 Sentencing in Immigration Law:  The length of a sentence may be critical to an immigrant defendant— for example, Whether a crime is an “aggravated felony” (a class of crimes that can lead to deportation) often depends on whether a sentence is more or less than a year— yet immigration law has its own method, often counterintuitive, of calculating sentences.A sentence is the sentence actually imposed by a judge, not the time served. Sentencing a person to a year may have drastic consequences that could have been avoided if that person had been sentenced to 364 rather than 365 days.

And, this does not apply only to violent crimes.  The Immigration Service takes a very serious look at crimes of dishonesty (officially called “crimes of moral turpitude”), like shoplifting and workers’ compensation fraud.  The California criminal laws may classify these crimes as misdemeanors, but the Immigration laws could view these crimes as felonies depending upon the sentence imposed. A criminal conviction could also prevent a person from eventually becoming a citizen or in other words from “naturalizing”.  This is because in order to become a US Citizen, the applicant needs to show that he/she is of Good Moral Character (GMC). A common misconception is that the GMC requirement is only restricted to the last 5 years before a person applies for naturalization. While this is generally true, in practice, the Immigration Services can and does look beyond the 5 years to see if the person in question has shown that he is “rehabilitated”, if he has had a conviction prior to the 5 years before applying to naturalize. 

What’s the solution?

If you are not a U.S. Citizen and you are charged with a crime, no matter how insignificant it may seem, consult with an attorney who can do 2 things:

  1. Advise and Assist you to reduce and/or dismiss the criminal charges against you; and
  2. BEFORE even considering #1, be sure you inform your attorney that you are NOT a U.S. Citizen.  If the attorney is unfamiliar with the impact of a criminal conviction on your immigration status, he or she needs to consult with an attorney who knows the Immigration laws and how such a crime can prevent you from becoming an American citizen. 

 Especially during this time when the Immigration Service is becoming increasingly cautious about who it allows to stay in the United States, the best advice for a non-Citizen would be to avoid any potential for criminal convictions.  However, if you find yourself in such a situation, be sure to seek expert advice for the criminal charges as well as the potential repercussions against your immigrant status.       

Marian Bishay, www.BishayLaw.com; 1-877 4 BISHAY           

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