Being convicted of a crime is often one of the surest ways for a foreign national to get caught up in the deportation system and possibly removed from the United States. Unless the conviction is not a Crime Involving Moral Turpitude, Aggravated Felony, or other type of deportable offense, there may be little relief for the non-US citizen unless he/she qualifies for some sort of waiver. In these types of situations, immigrants may need to explore whether it is possible to vacate or modify the criminal conviction itself through some sort of post-conviction relief application. Under certain circumstances, overturning or amending the original conviction may significantly change whether someone is deportable or not. For example, many theft aggravated felonies are triggered upon conviction of a theft crime where a sentence of a year or more is imposed. If the sentence is later altered to 364 days, that conviction may no longer be considered an aggravated felony, an important legal determination which can make all the difference.
In an earlier article, we briefly discussed the impact of a drunk driving allegation on an individual's H-1b stamp or visa. Matters become even more complicated when the charges are criminal in nature. If one has been arrested or charged with a criminal offense-whether misdemeanor or felony-the issue becomes even more precarious. Being charged or worse, convicted, of a criminal offense poses a potential problem of admissibility for the foreign national, especially in the context of an H-1b specialty worker without a visa who has already left the United States. Since he/she will have to apply for a visa to re-enter, the charges will have to be addressed during the visa application process. If a consular officer determines that conviction of a charge constitutes a crime involving moral turpitude ("CIMT") or worse, an aggravated felony, the individual will be refused a visa unless the ground of inadmissibility can be overcome. In some cases, a conviction is not even necessary. Under current US immigration law, if an individual admits to having committed or admits to having committed acts that form the essential elements of 1) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime, or 2) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of title 21) is inadmissible.
In New Jersey, reckless driving is punished under Title 39. It is not classified as a criminal offense, which is codified under Title 2C of the New Jersey Code. 39:4-96 reads, in part: