Criminal Background & Dealings With ICE
- I was convicted of a felony within the past ten years. Can I apply for a visa?
- I was convicted of a misdemeanor within the past ten years. Can I apply for a visa?
- I'm a U.S. citizen with previous federal charges. Can I petition for my spouse?
- What is a warrant?
- I have been detained by ICE. What are my rights?
- Can I stay in the US after being in custody with ICE?
^ I was convicted of a felony within the past ten years. Can I apply for a visa?
Visa and green card applicants are asked to state whether they have ever been arrested for or convicted of a crime. Under U.S. immigration law, certain crimes operate as “grounds of inadmissibility,” preventing one from entering the U.S. While not comprehensive, the following are some examples of such crimes:
- Crimes involving “moral turpitude” (e.g., dishonesty, fraud, deceit, misrepresenta-tion, deliberate violence)
- Crimes involving a controlled substance (e.g., heroin, cocaine, marijuana), including but not limited to trafficking (though certain exceptions apply to those who committed a crime while under the age of 18)
- Multiple criminal convictions
- Involvement in prostitution
- Human trafficking
- Money laundering
If you believe that your felony may prevent you from obtaining a visa, there are certain grounds upon which you can apply for a “waiver of admissibility” (legal forgiveness) of your crime.
^ I was convicted of a misdemeanor within the past ten years. Can I apply for a visa?
Even a past record of misdemeanors could disqualify someone from receiving a U.S. visa or green card. It is up to the discretion of U.S. immigration officials to determine whether your crime is serious enough to warrant denial of entry to the U.S.
Below are some examples of misdemeanors commonly considered to operate as grounds of inadmissibility under U.S. immigration law. Exceptions do apply, so it is important to consult with an immigration attorney.
- Petty theft
- Misdemeanor burglary
- Simple assault
- Misdemeanor domestic violence
- Misdemeanor battery
- Possession of 30 grams or less of marijuana
^ I'm a U.S. citizen with previous federal charges. Can I petition for my spouse?
Yes. Your criminal convictions do not prevent you from applying for immigration benefits for your wife. As long as you can provide adequate financial sponsorship or supplement it with someone else's joint affidavit of support, you can sponsor your wife for permanent residence even with the prior felonies.
^ What is a warrant?
A criminal warrant (also called a “judicial warrant”) is a written order signed by a federal judge that authorizes a law enforcement officer to conduct a search, seizure, or arrest.
Administrative warrants: U.S. Immigration and Customs Enforcement (ICE) officers frequently employ “warrants” in the course of their duties as the enforcement arm of the Department of Homeland Security (DHS). However, these “administrative warrants” are not issued by judges. Thus, if the officer goes to a person’s home, the administrative removal warrant prohibits the officer from entering into the home unless consent to enter is given.
^ I have been detained by ICE. What are my rights?
(See also “What legal rights do I have in the U.S. as an undocumented immigrant?” in the Life Events section)
U.S. Immigration and Customs Enforcement (ICE) must follow legal procedures with respect to their activities. Regardless of your legal status within the U.S., you are entitled to certain rights. Below are some of your rights if you come in contact with ICE agents.
You have the right to remain silent.
You have no obligation to speak to ICE agents about your immigration or citizenship status, or to answer questions about where you were born or how you came into the country. (Note that these rights don't apply at international borders or airports, or for individuals on nonimmigrant visas such as tourists and business travelers). However, if an ICE agent requests your immigration documents, provided you have them with you, you must show them the papers. If you don't have papers, remain silent.
If the officers don't speak your language, you have the right to ask for an interpreter.
You have the right to be represented by an attorney or other lawfully accredited representative.
You have a right to a lawyer, and the right to contact your consulate or ask an officer to notify the consulate of your arrest. The U.S. government doesn't have to provide you with an attorney, but if you don't already have one, you can ask for a list of free or low-cost lawyers.
If you believe you are at risk of being approached by ICE for any reason, you should carry with you at all times the phone number of an attorney or other representative in case you are detained.
You have the right to deny ICE officers entry into your home without a court warrant.
In order to enter your home, ICE agents must either have permission from someone inside, or a warrant signed by a judge. A warrant signed by an ICE employee is not enough to allow them entry into your home.
If ICE knocks, keep the door closed, ask them if they are immigration officers or ICE agents, and have them slide any warrant they claim to have under the door. If agents force their way through your door, don't resist. Just state, “I do not consent to your entry or to your search of these premises. I am exercising my right to remain silent. I wish to speak with a lawyer as soon as possible.”
Don't sign anything without getting legal advice.
You have the right to a hearing before an immigration judge.You have the right to a hearing before an immigration judge before ICE can deport you. Further, if the judge rules against you, you have the right to appeal the decision to the Board of Immigration Appeals and to the U.S. Circuit Court of Appeals.
You have the right to bail pending a decision on your deportation case.
Unless you have been convicted of what the law calls an "aggravated felony," if you have the right to a hearing, you have the right to be free on bond pending a court decision. Given that deportation cases can take many years, that's an important right.
^ Can I stay in the U.S. after being in custody with ICE?
If there is no legal follow-up to your confinement, such as a hearing for deportation (removal), you can remain in the U.S. Even if you were released pending a hearing for deportation, the U.S. Constitution gives you the right to defend yourself, although it does not provide an attorney on your behalf. However, if you do not have a green card or some form of visa that confirms your legal status, you should initiate an application to obtain legal status.
Note, however, that with President Trump’s continuing crackdown on immigration, it is unclear as of this writing what will or will not result in ICE’s deportation of persons it is placing into custody for alleged immigration violations.