The Interaction between Hong Kong Law and United States Immigration Law: Part one, Criminal Law

The United States is a major destination for the people of Hong Kong. The US Consulate in Hong Kong issues around 69,000 non-immigrant visas (for temporary stays in the United States) and around 3,000 immigrant visas (leading to permanent residence) every year. Hong Kong law barely interacts with the underlying US immigration law which governs the visas’ issuance in most of these cases. When the two laws collide however things can get a lot more difficult for your client.

Criminal law is the body of Hong Kong law which will affect your client when applying for a US visa. According to the US Immigration and Nationality Act (INA) Section 212(A)(2) (which is also 8 CFR 1182(A)(2)) one can be ineligible to receive a visa and ineligible for admission into the United States if they were ever convicted of, admitted having committed or admits committing acts which constitute the essential elements of:

  • a crime involving moral turpitude, or
     
  • a violation of any law or regulation relating to a controlled substance.

There are other factors which may make someone ineligible for a visa, such as having served or being sentenced to certain prison sentences but the majority of those who will be ineligible for a US visa due to the application of a Hong Kong law will be affected by one of the above two provisions.

Crime Involving Moral Turpitude

While ‘controlled substance’ can be easily defined (they can be found in Section 102 of the Controlled Substances Act (21 U.S.C 802)) and essentially covers most of the drugs described under Schedule 1 of the Dangerous Drugs Ordinance, a crime involving moral turpitude is a little harder to quantify.

A crime involving moral turpitude has been defined as ‘per se morally reprehensible and intrinsically wrong’.

Some crimes obviously involve moral turpitude. These include:

  • Fraud
  • Aggravated Assault
  • Bribery
  • Burglary
  • Larceny
  • Kidnapping
  • Murder
  • Rape

Other crimes clearly do not involve moral turpitude. These include:

  • Damaging private property (where intent to damage is not required)
  • Desertion from the Armed Forces
  • Drunk driving
  • Joy riding
  • Simple assault
  • Involuntary manslaughter
  • Libel

Non-Immigrant Visa Waiver

There is a procedure available to clients who are ineligible for a US visa but who wish to apply for a non-immigrant visa nonetheless. This procedure is called a 212(d)(3) waiver or a Hranka waiver.

If a client wished to apply for a Hranka waiver, they would apply for their non-immigrant visa and attend their Consular interview at the US Consulate in Hong Kong as usual. The client would hand the Hranka Waiver application along with any usual documents to the Consular officer at their interview

Matter of Hranka describes the three legal factors immigration authorities must weigh when deciding whether to grant the non-immigrant waiver:

  • The risk of harm to US society if the waiver applicant is admitted to the United States;
     
  • The seriousness of the applicant’s criminal or immigration violations (if applicable); and
     
  • The applicant’s reason for wishing to enter the United States.

These waivers are discretionary in nature. One point to note is that the reason the applicant wishes to enter the United States does not need to be ‘compelling’ so even a trip to Disneyland may be enough for the purposes of getting this waiver approved.

Jurisdictions: