Does my criminal history make me inadmissible to the U.S.?
According to the Immigration and Nationality Act, individuals are deemed inadmissible to the United States on criminal grounds if they are convicted of OR admit the essential elements of:
- A crime involving moral turpitude or an attempt or conspiracy to commit such a crime or;
- A violation of any law regulation of a State, the United States, or a foreign country relating to a controlled substance.
The first point continues to raise many questions, as it does not provide an explanation as to what it is exactly referring to. “Crime involving moral turpitude” (CIMT) has no statutory definition, but extensive case law has provided sufficient guidance on whether an offense rises to the level of a CIMT. For example, courts have consistently ruled that crimes against a person involve moral turpitude when the offense contains criminal intent or recklessness, or when the crime is defined as morally reprehensible by the controlling statute. In practice, this means that aggravated battery will almost always be considered a CIMT, but simple assault and battery usually are not.
In cases where the individual was charged with simple assault or battery, we recommend assembling an admissibility package to bring with you when you cross the border. An admissibility package will outline the regulations and explain that the individual is not inadmissible due to their arrest for simple assault or battery. We make this recommendation because a customs officer will use their discretion to determine if the assault or battery conviction rises to the level of a crime involving moral turpitude. This is a determination that an officer will make each and every time the individual crosses the U.S. border. It is important that an officer does not interpret the offense as containing criminal intent or recklessness thereby making the individual inadmissible due to a CIMT conviction. Thus, by arming the individual with an admissibility package, we can reduce the chances of an officer making such a determination.
If it is the case where the individual is inadmissible, it is possible to file a temporary waiver application online through the E-SAFE system. Eligibility for the temporary waiver will depend on the reason for inadmissibility into the U.S., and the class of non-immigrant status that is being sought out. Upon arrival and if approved, the individual would be issued an official waiver document that he or she must carry when traveling to the U.S.
If you have any questions regarding a criminal history you may have and its affect on your travels across the U.S. border, please contact our office today!