Whether applying for an immigrant or non-immigrant visa, to adjust status to become a permanent resident of the United States, or for citizenship or naturalization, a lack of good moral character, a finding of moral turpitude, and certain criminal offenses can result in an finding of inadmissibility, denial of visas, or denial of naturalization and citizenship. Our United States immigration lawyers in Milwaukee and Waukesha, WI can help you resolve these concerns to successfully obtain the immigration benefits you are seeking.
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Good Moral Character, The Effect of Criminal Convictions, and Moral Turpitude
US Immigration Lawyers in Milwaukee and Waukesha, WI
Visas, Permanent Residency and Naturalization Attorneys
FAQ: Good Moral Character, Criminal Records, & Moral Turpitude
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Answers to questions about moral character, turpitude, and the effects of criminal convictions on immigration status.
The USCIS interprets good moral character as character that "measures up to the standards of average citizens of the community in which the applicant resides." It "does not necessarily require the highest degree of moral excellence." What constitutes good moral character may change over time based on changing standards in the community. Someone's character (who you are) is not the same as someone's reputation (who you are believed to be).
According to USCIS, whether someone has or lacks good moral character is a question of fact that is assessed in based on the standards of the community. Both reputation and behavior can provide evidence of good or bad moral character. Historically it was opined that good moral character could only be established when a person is a free moral agent, free from restraint. As a result, it had been found that a person on probation or parole is not a free from restraint thus cannot demonstrate good moral character during the term of such supervision. However, a more common view is that probation, parole, and the term of a suspended sentence are factors to consider in determining whether good moral character has been established. Factors that can be considered when determining someone's moral character include family ties and background, absence or presence of criminal history, education, employment history, other law-abiding behavior, community involvement, compliance with probation, and length of time in the US. Certain findings can preclude a finding a good moral character, such as:
- criminal convictions for murder, an aggravated felony, or one or more crimes of moral turpitude (not including a purely political offense, but including expunged offenses if there were 2 or more crimes of moral turpitude), or two or more gambling offenses;
- an admission to having committed (regardless of whether charged), or a conviction for, two or more offenses for which the combined sentence imposed was for 5 years or more (not including a purely political offense outside the United States); a violation of any US law, state law, or law of any foreign country relating to a controlled substance (expect for a single offense of simple possession of marijuana, 30 grams or less, but including expunged offenses of trafficking in controlled substances);
- confinement in a penal institution for a total of 180 days as a result of a criminal conviction(s) (not including confinement outside the US for a purely political offense committed outside the US);
- a habitual drunkard or drug abuser or addict;
- incurring financial obligations with intent to defraud;
- adultery which tended to destroy an existing marriage;
- engaged in, procured, attempted to engage or procure, or received any proceeds from, prostitution or other unlawful commercialized vice;
- sexual immorality (homosexuality is not considered sexually immoral in itself, but may be immoral where a specific act has an adverse public effect, involves a minor, involves a criminal act, or is in violation of marital vows);
- obtaining public benefits by fraud (not indigency or obtaining public benefits in itself);
- was involved in the smuggling of any person into the United States in violation of law, except for limited cases of family reunification under applicable law
- falsifying any sworn testimony to obtain an immigration benefit, whether the false testimony was material or immaterial;
- or committed, was convicted of, or imprisoned for, other unlawful act(s) that reflect adversely on moral character.
According to Webster's dictionary, moral turpitude is defined as "an act or behavior that gravely violates the moral sentiment or accepted moral standards of the community; esp: sexual immorality." According to the definition by US Legal, turpitude means "a corrupt or depraved or degenerate act or practice" and moral turpitude generally refers to "conduct that shocks the public conscience." USCIS indicates that "the most common elements involving moral turpitude are: (1) fraud, (2) larceny, and (3) intent to harm persons or things." 9 FAM 40.21(a) N2.2.
Crimes of moral turpitude in include offenses, and offenses that are attempted or involvement is as a party to the crime, such as:
- assault, including with intent to kill, with intent to rape, with intent to commit robbery, with intent to commit serious bodily harm, and with a dangerous or deadly weapon.
- contributing to the delinquency of a minor
- fraud (including other crimes where fraud is an element)
- joy riding (without the intent to permanently deprive)
- malicious destruction of property
- tax evasion (with intent to defraud)
- transporting stolen property
According to 8 CFR § 316.10, "an applicant who has committed or admits the commission of two or more crimes involving moral turpitude ... is precluded from establishing good moral character, even though the conviction record of one or more offenses has been expunged."
First it is important to note what constitutes a conviction for immigration purposes. According to USCIS, "conviction" means a formal judgement of guilt entered by a court, or an adjudication of guilt is withheld if a judge or jury has found the person guilty, or a no contest plea was entered, or sufficient facts were admitted to warrant a finding of guilt and the judge has ordered a form of punishment, penalty, or imposed a restraint on the alien's liberty. However, for immigration purposes, if there is no admission or finding of guilt then the offense may not count as a conviction.
A conviction for any criminal matter, including misdemeanors, can cause a person to be denied a visa, denied admission to the United States, or deported. Felonies, or any crime for which a sentence of one year or longer may be imposed, can heavily prejudice any application for admission, permanent residency, or naturalization. Conviction for an aggravated felony will likely cause any non-citizen alien, even a lawful permanent resident, mandatory removal from the United States without any available relief from deportation, and bar future admission to the US. Even crimes that were not considered aggravated felonies at the time the offense was committed can cause immediate deportability based on the prior conviction if the crime is later added by Congress to the list of aggravated felonies. Additionally, crimes of moral turpitude are viewed as more serious for immigration purposes, and can result in deportation and the denial or revocation of visas, admission to the US, and permanent residency.
Aggravated felonies are crimes that involve incarceration of a year or more, and involves offenses that carry harsh immigration consequences for non-citizens. To be classified as an "aggravated felony" the offense does not need to be "aggravated" or even a "felony" in your jurisdiction. For purposes of immigration, an aggravated felony is any offense that Congress has designated as an aggravated felony. A list of aggravated felonies can be found in Act 101(a)15P(43), and currently may include an act, attempt, or conspiracy to commit any of the following crimes:
- Illicit Trafficking of Firearms, Destructive Devices, or Explosive Materials
- Violent Crimes for which the term of imprisonment is at least 1 year for which an element includes the use, attempted use, threatened use, or is a felony and involves a substantial risk of use or attempted use or threatened us, of physical force against another or the property of another
- Any theft (including receiving stolen property) or burglary offense for which the term of imprisonment may be 1 year or more
- Racketeering or gambling offenses for which the term of incarceration may be 1 year or longer
- Prostitution based offenses for owning, controlling, managing or supervising a prostitution business, or certain offenses of transporting for purposes of prostitution
- Other human trafficking offenses, including peonage, slavery, or involuntary servitude
- Espionage, release of classified or national defense information, sabotage, or treason
- Any offense involving fraud or deceit in which the victim(s) loss exceeds $10,000
- Tax evasion where the loss to the government exceeds $10,000
- Smuggling of any person into the United States in violation of law, except for limited cases of family reunification under applicable law
- Document or passport fraud, for which the term of imprisonment is at least 12 months, expect for limited cases of assistance to an immediate family member
- Failure to appear for service of a sentence where the underlying offense is punishable by confinement of 5 years or more
- An offense related to commercial bribery, counterfeiting, forgery, trafficking in VINs for which the term of incarceration is at least 1 year
- An offense relating to obstruction of justice, perjury, subornation of perjury, or bribery of a witness for which the punishment is at least 1 year
- An offense of failure to appear before a court related to a felony for which a sentence of 2 years imprisonment or more may be imposed
Immigration authorities are required to deport any immigrant convicted of an aggravated felony upon release from criminal custody. Any immigrant who is not a lawful permanent resident may be deported by expedited administrative proceedings, without a formal hearing. Non LPRs in administrative deportations are not eligible for any form of discretionary relief and may not appeal the order to the Board of Immigration Appeals. Removal of a non-green card holder for conviction of an aggravated felony may occur within 2 weeks of the order being entered. A permanent resident who is detained following conviction for an aggravated felony may only obtain bond upon a substantial showing that the the crime at issue is not an aggravated felony. An alien convicted of an aggravated felony is ineligible for cancellation of removal or voluntary departure, and is permanently inadmissible to the United States (unless a waiver is obtained).
With certain exceptions for presidential or governor's pardon, convictions for any of the following offenses makes an alien deportable, including:
- Any non-citizen, even a lawful permanent resident, is subject to deportation through expedited removal upon release from incarceration following conviction for an aggravated felony at any time after admission.
- Conviction for a crime of moral turpitude for which a sentence of one year or longer may be imposed within 5 years of admission for a visa holder, or within 10 years of admission for a lawful permanent resident.
- Conviction for 2 or more crimes of moral turpitude arising out of different incidents of misconduct, even if adjudicated together in 1 trial, and regardless of whether confined after conviction.
- High speed flight from an immigration checkpoint under 18 USC § 758.
- Any violation, or conspiracy or attempt to commit a violation, of any law or regulation of the United States, any state, or any foreign country relating to a controlled substance expect for a single offense of simple possession of marijuana, 30 grams or less, but including expunged drug trafficking offenses.
- Firearms offenses including a violation of any law of actually, attempting, or conspiring to purchase, sell, offering to sell, exchange, use, own, possess or carry any weapon, part or accessory which is a firearm or destructive devise.
- Crimes of domestic violence, stalking or child abuse, child neglect, or child abandonment.
- A violation of any restraining order or other order of protection against credible threats of violence, repeated harassment, or bodily injury to the person(s) for whom the injunction was issued.
- Any act, attempt, or conspiracy to commit an act of human trafficking or benefit financially or otherwise from human trafficking.
- Any act, attempt or conspiracy to fail to register as an alien or to falsify visa, permits, or other documents.
- Terrorist, espionage, or sabotage activities
Generally, an alien who is sentenced to jail or prison cannot be deported from the United States until the alien is released from incarceration. However, parole, supervised release, probation, or the possibility of future incarceration or arrest are not reasons to defer removal. An exception to deferring removal proceedings until the completion of a sentence of incarceration exists for some non-violent offenders (for a conviction of an offense other than smuggling or harboring aliens, or an aggravated felony) who may be removed prior to completing the sentence of imprisonment.
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