I.    ADMISSION TO THE UNITED STATES

 A.      The Meaning of "Admission"

 B.      Admission vs. Entry

 C.      Re-Entry of Permanent Residents

II.   GROUNDS OF INADMISSIBILITY

 A.      Health-Related Grounds

 B.      Criminal and Related Grounds

(a)     Crimes of Moral Turpitude

   (i)      Exceptions And Waivers of the Criminal Grounds

 C.      Security and Related Grounds

 D.      Inadmissibility for Violations of Immigration Law or Procedure

(a)     Illegal Entrants and Immigration Violators

(b)     Previous Removal and Unlawful Presence

 E.      The Public Charge Ground

 F.      Other Grounds of Inadmissibility

(a)     Labor Certification

(b)     Documentation Requirements

(c)     Persons Ineligible for Citizenship

(d)     Miscellaneous

 G.      False claim to U.S. Citizenship

III.  REMOVAL FROM THE UNITED STATES

  A.      General Considerations

IV. GROUNDS FOR REMOVAL (DEPORTABILITY)

A.      Inadmissibility at Entry and Status Violations

B.      Criminal Grounds

(a)     Crimes of Moral Turpitude

(b)     Aggravated Felonies

(c)     Other Criminal Grounds

   (i)      Avoiding the Immigration Consequences of Crimes

C.      Registration Requirements

D.      National Security Grounds

E.      Other Removal Grounds

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C.  Security and Related Grounds

The national security grounds of inadmissibility have historically reflected popular fears of threats to the United States. A 1903 Immigration Act, passed after the assassination of President McKinley, excluded anarchists and others who advocate the forceful overthrow of the U.S. government. 32 Stat. 1213. In the 1950s, Congress added provisions excluding Communists and members of a number of other "subversive" organizations. See INA § 212(a)(3). Since the 1990s, the primary security concern has been terrorism. The 1990 Act rendered inadmissible persons believed to have committed terrorist attacks and those suspected of seeking admission to the U.S. to engage in terrorism. The AEDPA and IIRIRA, passed in the wake of the 1993 attack on the World Trade Center and the Oklahoma City bombing, expanded the terrorist ground by excluding all representatives or members of terrorist organizations designated by the Secretary of State. Most recently, the USA Patriot Act, passed in response to the September 11, 2001 attacks, further extended this ground by broadening the definition of terrorist organizations and adding to the list of inadmissible non-citizens those who use positions of prominence to endorse terrorism, representatives of groups that support terrorist organizations, and spouses or children of persons inadmissible on terrorism grounds. See INA § 212(a)(3)(B). The Act further enables immigration authorities to detain any non-citizen suspected of terrorist activity and keep that person in detention until finally removed or cleared of the charge. See INA § 236A.

The current terrorism grounds make inadmissible any person who (1) has in the past, is currently, or is likely in the future to engage in terrorist activities; (2) is an official representative or spokesperson of a terrorist group or a group that endorses terrorism; (3) is a member of a terrorist group; (4) has used a position of prominence to endorse terrorism or persuade others to support terrorism; or (5) is the spouse or child of a non-citizen who is inadmissible on terrorist grounds, unless the spouse or child did not know about the terrorist activity or has renounced it. INA § 212(a)(3)(B)(i). The Act also excludes anyone who has been associated with a terrorist organization and intends to endanger the welfare, safety, or security of the U.S. INA § 212(a)(3)(F). "Terrorist activities" defined by the statute include hijacking or sabotaging a conveyance, holding people hostage, committing an assassination, or using any kind of weapon to harm people or property, other than for purely personal gain. INA § 212(a)(3)(B)(iii). "Engaging in terrorist activities" includes preparing, planning, or committing such activities; soliciting funds or providing material support; and soliciting individuals to participate in such acts. INA § 212(a)(3)(B)(iv). "Terrorist organizations" include those designated by the Secretary of State, as well as any group of two or more people, whether designated as a terrorist organization or not, that engages in terrorist activities. INA § 212(a)(3)(B)(vi).

To identify possible terrorists, U.S. consulates are instructed to check names of visa applicants against "lookout" lists prior to issuing a visa. If an applicant's name matches a name on one of the lookout lists, U.S. State Department approval is required before the consulate can issue a visa. State Department approval is also required for any applicant holding a passport from a country designated as a state sponsor of terrorism (currently Cuba, Libya, Iran, Iraq, North Korea, Sudan, and Syria), and for applicants working in sixteen high-technology fields. The Homeland Security Act authorized the Bureau for Border Security to place staff in U.S. consulates to help in compiling lookout lists and to train the consular staff who issue visas to identify possible terrorists.

In addition to the terrorism grounds, INA § 212(a)(3) makes inadmissible anyone who is believed to be seeking entry to the U.S. to engage in espionage, violent opposition to the U.S. government, or any other unlawful activity; persons whose activities in the U.S. would be adverse to foreign policy, unless they are foreign government officials or candidates for office in a foreign government; and members of the Communist party and other totalitarian parties. Also inadmissible are people who assisted in persecutions carried out by the Nazi government, as well as anyone else who has participated in genocide.

The inadmissibility grounds related to foreign policy and membership in "subversive" groups have been subject to several judicial challenges. The Supreme Court upheld these provisions against a First Amendment challenge in Kleindienst v. Mandel (Sup.Ct.1972). The Court reasoned that non-citizens have no constitutional right to be admitted into the United States, and U.S. citizens have no right to insist that non-citizens be admitted to the country so that ideas may be exchanged. Essentially, Congress' plenary power to control immigration supersedes a citizen's right to receive information under the First Amendment. The D.C. Circuit held in Abourezk v. Reagan (D.C.Cir.1986) that the government's decision that an anarchist or a Communist party member is inadmissible must be based on projected engagement in activities prejudicial to the public interest, and such perception must be independent of the fact of membership alone in an organization. The current version of the INA provides that no one may be excluded under the foreign policy ground solely for past beliefs, statements or associations, if such beliefs, statements or associations would be lawful in the United States. INA § 212(a)(3)(C).

Inadmissibility on the basis of Communist or other totalitarian party membership may be waived where the membership was involuntary or was solely to obtain food or employment, where membership was terminated more than two years ago (five years if the totalitarian party still governs the non-citizen's country), or to assure family unity if the individual has a close relative who is a U.S. citizen or permanent resident. INA § 212(a)(3)(D). There are no other waivers specific to the national security grounds.

D. Inadmissibility for Violations of Immigration Law or Procedure

Several of the inadmissibility grounds in section 212(a) are related to the enforcement of other immigration laws and procedures. Non-citizens who enter the U.S. without being admitted or paroled, those who stay beyond the expiration of their nonimmigrant status, and those who have been removed from the U.S. may all be inadmissible for varying periods.

(a) Illegal Entrants and Immigration Violators

Any non-citizen who is present in the U.S. without being admitted or paroled, or who arrives in the United States at a place other than a designated port of entry is inadmissible INA § 212(a)(6)(A)(i). This ground applies only to persons in the United States, not to those applying for admission from overseas. In addition to being inadmissible, those persons are subject to civil penalties for illegal entry of $50 to $250 for each entry or attempted entry. The fine doubles for a person who has previously been subjected to a civil penalty under this section. INA § 275(b). The only exemption from this ground is for victims of domestic violence who can demonstrate a connection between the abuse they have suffered and their illegal entry. INA § 212(a)(6)(A)(ii).

A number of other immigration violations are grounds of inadmissibility under section 212(a)(6). Individuals who are ordered removed in absentia for failing, without reasonable cause, to attend a removal proceeding are inadmissible for ten years after their departure or removal. INA § 212(a)(9). See § 9-2.1, infra for more information on in absentia removal orders. Persons who made a material misrepresentation of fact in the application process or falsely claimed U.S. citizenship in order to obtain immigration or other government benefits are inadmissible. INA § 212(a)(6)(C). Non-citizens who are stowaways, who have encouraged, induced, assisted, abetted, or aided the illegal entry of other non-citizens, or who violated the terms of F-1 student visa status are also inadmissible. Violators of F-1 status are inadmissible until they have been outside the U.S. for a continuous period of 5 years after the date of violation. INA § 212(a)(6)(D),(E),(G) Some exceptions and waivers apply to these grounds. The inadmissibility ground for false citizenship claims does not apply to persons who obtained permanent residence before the age of sixteen, have a natural or adopted parent who is a U.S. citizen, and reasonably believed that they were also citizens. INA § 212(a)(6)(C). Immigration authorities may also waive the misrepresentation ground for immigrants whose exclusion would result in extreme hardship to a U.S. citizen or permanent resident spouse or parent. INA § 212(i). The smuggling ground (assisting the illegal entry of others) may be waived for returning permanent residents or non-citizens seeking admission as permanent residents if they only assisted a spouse, parent, son, or daughter to enter illegally.

(b) Previous Removal and Unlawful Presence 

INA § 212(a)(9)(A) describes the inadmissibility grounds related to previous removal from the United States. While section 212(a)(6)(A) applies to persons within the U.S., this section applies to persons applying for a visa at a consulate or seeking admission at a port of entry. Non-citizens who received a removal order after expedited removal proceedings or other proceedings initiated upon their arrival in the U.S. are inadmissible for a period of five years. Persons who were removed after any other removal proceeding, or who left the U.S. while in removal proceedings, are inadmissible for a period of ten years. Those who return to the U.S. and are removed for a second or subsequent time are inadmissible for twenty years. Any non-citizen who is removed after committing an aggravated felony is permanently inadmissible. Non-citizens may avoid this ground of inadmissibility by obtaining the Secretary for Homeland Security's consent to their admission prior to re-entering the United States from a foreign country. INA § 212(a)(9)(A).

Since 1996, non-citizens who depart the U.S. after extended periods of unlawful presence are also inadmissible. Before enactment of the IIRIRA, individuals who departed the country before the INS initiated removal proceedings against them could seek readmission by applying for a new visa in their country of origin. The IIRIRA ended this method of avoiding removal. Now, a non-citizen who has been unlawfully present in the U.S. for a period of more than 180 days but less than one year and voluntarily leaves before removal proceedings are initiated is inadmissible for three years. INA § 212(a)(9)(B)(i)(I). A non-citizen who has been unlawfully present for one year or more is barred from admission into the U.S. for ten years. INA § 212 (a)(9)(B)(i)(II). The ten-year bar applies regardless of whether the individual's departure is voluntary. Further, anyone who has previously been removed, or has accumulated one year or more of unlawful presence, and enters or attempts to enter the U.S. without being admitted becomes permanently inadmissible. INA § 212(a)(9)(C). An entry or attempted entry after being removed can also trigger criminal penalties under INA § 276. Except for subsection (C), unlawful presence is not cumulative; for example, two separate four-month periods of unlawful presence will not constitute grounds of inadmissibility.

Persons who remain in the U.S. unlawfully for fewer than 180 days do not entirely escape sanction. INA § 222(g) denies readmission to nonimmigrants who stay beyond the expiration of their status unless they apply for a new nonimmigrant visa in their country of origin. Also, non-citizens are less likely to receive a new visa if they overstayed their previously-permitted period of stay.

The INA defines "unlawful presence" as being present in the U.S. without being admitted or paroled, or being present after the non-citizen's nonimmigrant status expires (referred to as an "overstay"). INA § 212 (a)(9)(B)(ii). To date, no regulations have been issued to clarify when unlawful presence begins, but the INS addressed this issue in several memos. See 74 Interp.Rel. 562. Unlawful presence is triggered when immigration authorities commence removal proceedings or when either the BBS or an immigration judge determines that an individual has violated the terms of nonimmigrant status. Without such a determination, a violation of status other than an overstay will not trigger unlawful presence. Non-citizens in removal proceedings continue to accumulate unlawful presence unless they ultimately prevail in the proceedings.

Some exceptions apply to this ground of inadmissibility. Minors, applicants for asylum, persons protected by family unity, and certain battered women and children do not accumulate unlawful presence. INA § 212(a)(9)(B)(iii). (The family unity program grants protected status to spouses and unmarried children under twenty-one years of age of certain lawful permanent residents, if they have resided in the U.S. since 1988 or earlier.) Further, the three- and ten-year bars may be waived for an immigrant who is a spouse, son or daughter of a U.S. citizen or permanent resident if excluding the immigrant would cause extreme hardship to the citizen or permanent resident spouse or parent. INA § 212 (a)(9)(B)(v). The permanent bar against individuals who attempt to enter the U.S. without being admitted may be waived for battered women and children and for any person whose last departure from the U.S. was more than ten years ago. INA § 212(a)(9)(C).

Until April 2001, INA § 245(i) permitted some persons who entered the U.S. without inspection or overstayed a lawful status to adjust to permanent resident status upon the payment of $1,000, if an immigrant visa was available and no other bar applied. INA § 245(i). After being extended twice, this provision expired on April 30, 2001 and, despite several proposals for another extension, has not been renewed as of this writing. Some individuals are, however, still allowed to adjust status under this provision if they filed an application before it expired in 2001.

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