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In the United States federal criminal code, crimes are divided into two main categories: misdemeanors and felonies. The distinction is one of maximum punishment. A misdemeanor, according to federal law, is a crime punishable by five days to one year in jail regardless of the sentence imposed. Misdemeanors carry lower penalties than felonies, but higher than administrative infractions, such as tickets and municipal ordinances.
Under 18 U.S.C. 3559, the term “serious violent felony” means:
(i) a Federal or State offense, by whatever designation and wherever committed, consisting of murder; manslaughter other than involuntary manslaughter; assault with intent to commit murder; assault with intent to commit rape; aggravated sexual abuse and sexual abuse; abusive sexual contact; kidnapping; aircraft piracy; robbery; carjacking; extortion; arson; firearms use; firearms possession; or attempt, conspiracy, or solicitation to commit any of the above offenses; and
(ii) any other offense punishable by a maximum term of imprisonment of 10 years or more that has as an element the use, attempted use, or threatened use of physical force against the person of another or that, by its nature, involves a substantial risk that physical force against the person of another may be used in the course of committing the offense.
Immigration laws categorize crimes differently. For example, a significant misdemeanor is a misdemeanor as defined by federal law (specifically, one for which the maximum term of imprisonment authorized is one year or less but greater than five days) and, regardless of the sentence imposed, is
- an offense of domestic violence;
- sexual abuse or exploitation;
- unlawful possession or use of a firearm;
- drug distribution or trafficking;
- driving under the influence; or,
- If not an offense listed above, is one for which the individual was sentenced to time in custody of more than 90 days; the sentence must involve time to be served in custody, and therefore does not include a suspended sentence.
Any time a non-citizen is convicted of two CIMT that did not arise from a single act of misconduct, the DHS will initiate removal proceedings. This is true even if the crimes are misdemeanors.
A misdemeanor theft conviction might be classified as a CIMT under the immigration law and is a ground of removal if it occurred during the first five years in the U.S. or if you committed two of them. The distinction between whether theft is a misdemeanor or a felony is dependent on the value of the cash or property stolen. Many states consider theft of up to $500 a misdemeanor and larger amounts to be a felony (larceny).
If you were convicted for a controlled substance violation (including paraphernalia), whether in the U.S. or another country, at any time after admission, you may be denied your Green Card renewal and you will go through removal proceedings. This is true regardless of whether your state’s law classifies the crime as a misdemeanor. There’s an exception for a single offense involving possession for personal use of 30 grams or less of marijuana. Although possession of less than 30 grams of marijuana is not grounds for denial of your Green Card and removal, it is ground for inadmissibility.
Even if the sentence was for 90 days or less, USCIS specifically states that it retains discretion to determine that the crime was a significant enough misdemeanor. If your application is denied, you must consult with one of the best immigration lawyers.
Any time an alien is convicted of a misdemeanor crime there are potential criminal immigration consequences. Among these is the possibility that the Green Card renewal application will be denied.
Section 212 of the Immigration and Nationality Act (INA) lists those classes of aliens who are ineligible to receive visas, for admission to the U.S., and the classes of aliens who may apply for waivers of ineligibility. Before an applicant can obtain a waiver for a nonimmigrant visa, the reviewing consular officer, or the Secretary of State, must recommend a waiver to the Department of Homeland Security (DHS), which has ultimate authority to grant or deny the waiver.
Form i 246. Application for a stay of deportation. i-246 - BIA Stay of Removal | Criminal Immigration Lawyer
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