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

(page 7 of 8)

IV.  GROUNDS FOR REMOVAL (DEPORTABILITY)

A.  Inadmissibility at Entry and Status Violations

The first class of removal grounds applies to non-citizens who were inadmissible when they entered the United States or adjusted status and those who have violated conditions of their admission. INA § 237(a)(1). Section 237(a)(1)(A) allows the BBS to remove anyone who should not have been granted admission because of the inadmissibility or exclusion grounds in effect at the time that person entered the country. This concept has profound implications. Individuals who have committed no offenses since being admitted can still be removed on the basis of their actions prior to entry.

Non-citizens who are present in the U.S. in violation of the INA or any other law of the U.S. are removable. INA § 237(a)(1)(B). Non-citizens who violate or fail to comply with any terms imposed at entry are also subject to removal, as are those who fail to maintain the nonimmigrant or immigrant status to which they were admitted. INA § 237(a)(1)(C). Violations of status that could constitute grounds for removal include overstaying the time limit of a nonimmigrant visa or accepting employment without the requisite authorization. Individuals accorded permanent resident status on a conditional basis under INA § 216 (referring to spouses of U.S. citizens) or § 216A (investors) become removable if they fail to have their status converted from conditional to unconditional. INA § 237(a)(1)(D). A non-citizen who knowingly encourages, aids, or abets another non-citizen to enter the United States illegally may be removed; this provision may, however, be waived if the person who illegally entered the United States was the non-citizen's spouse, parent, son, or daughter, and such a waiver would serve humanitarian purposes, assure family unity, or would be in the public interest. INA § 237(a)(1)(E).

Non-citizens may also be removed for gaining admission to the U.S. by committing marriage fraud, defined as marrying a United States citizen solely to obtain immigration benefits. INA § 237(a)(1)(G). Marriage fraud is presumed if a non-citizen gains admission based on a marriage contracted less than two years before the date of admission and the marriage is terminated or annulled within two years after the non-citizen is admitted to the United States. The non-citizen can only overcome this presumption by demonstrating that the marriage was bona fide. See § 5-2.1(c), supra. The BBS also has authority to determine whether any previous marriage was fraudulent and if so, to remove the non-citizen.

The INA also provides a waiver for non-citizens who were inadmissible at the time of admission because they obtained their visas or labor certifications through misrepresentation, provided the non-citizens are the spouse, parent, son, or daughter of a U.S. citizen or permanent resident. INA § 237(a)(1)(H).

B.  Criminal Grounds

Violations of criminal grounds are the basis for more than twenty percent of all formal removals, the second largest category after illegal entries. Because of the considerable expansion of these grounds since 1986, virtually any criminal activity other than the most petty offenses and misdemeanors can have serious adverse consequences to non-citizens and their family members. The criminal grounds for removal are listed in INA § 237(a)(2). They are similar, but not identical, to the grounds of inadmissibility.

(a)  Crimes of Moral Turpitude  

Non-citizens are subject to removal if convicted within five years of admission to the U.S. of a crime of moral turpitude carrying a possible sentence of one year or more, or if convicted at any time of two or more crimes of moral turpitude "not arising out of a single scheme of criminal misconduct," regardless of the sentence imposed. INA § 237(a)(2)(A). The difficulties of defining moral turpitude were discussed in section 8-1.2(b), supra. In addition to those issues, this provision of the INA raises the questions of what constitutes a "conviction" and what is a "single scheme" of misconduct.

Unlike the inadmissibility grounds, which apply even if an individual merely admits to committing a crime of moral turpitude, the removal grounds apply only after a conviction. The conviction must be final; hence a non-citizen may not be deported while a direct appeal is pending. Problems arise, however, because many "crimes of moral turpitude" are relatively minor offenses for which the punishment can be ameliorated by state rehabilitative statutes. For example, some state courts will expunge a conviction after the offender successfully completes a period of probation; other courts may defer judgment so that a conviction is never entered unless the offender violates probation. In the first case, a non-citizen offender could potentially be removed at any time during or after the probationary period, because a conviction had been entered, while in the second case removal proceedings could only be instituted if the non-citizen violated probation, because only then would a conviction occur. Given the wide variation in such statutes among the states, the federal courts struggled for some time to create a uniform definition of "conviction" for immigration purposes.

In Matter of Ozkok (BIA 1988), the court stated that there must be three elements present to find a conviction for immigration purposes: (1) a judge or jury has found the person guilty or the person has entered a plea of guilty or nolo contendre or has admitted sufficient facts to warrant a finding of guilty; (2) the judge has ordered some form of punishment, penalty, or restraint on the person's liberty; and (3) a judgment or adjudication of guilt may be entered without any further proceedings to determine the person's guilt or innocence if he or she violates the terms of probation or fails to comply with the requirements of the court's order.

IIRIRA's amendments to the INA narrowed Ozkok by codifying only the first two prongs of the Ozkok test. The INA thus currently defines conviction as "a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendre or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty." INA § 101(a)(48)(A). This new definition applies retroactively to offenses committed before enactment of the IIRIRA. Matter of Punu (BIA 1998).

The BIA held in Matter of Roldan (BIA 1999) that because of the new definition, expungement under a state rehabilitative statute does not cancel a conviction for immigration purposes. The Board reasoned that giving effect to the various state rehabilitation statutes would conflict with Congress' desire for a uniform immigration standard. The Ninth Circuit subsequently reversed this decision as applied to first-time drug offenses, finding that it conflicted with the Federal First Offender Act. Lujan-Armendariz v. INS (9th Cir. 2000). Then the BIA held in Matter of Rodriguez-Ruiz (BIA 2000) that a judgment vacated through a mechanism other than a rehabilitative statute would not be considered a conviction for immigration purposes. In addition, a judgment deeming someone a youthful offender or juvenile delinquent is not a conviction. Matter of Devison (BIA 2000). Consequently, a few avenues remain open by which non-citizens could avoid being deported for minor crimes.

(b) Aggravated Felonies  

Section 237(a)(2)(iii) authorizes the removal of any non-citizen who has been convicted of an "aggravated felony" at any time after entry. When first introduced in 1988 as a ground for removal, "aggravated felony" referred to murder, drug trafficking and trafficking in firearms. 102 Stat. 4141. The list of aggravated felonies has since been expanded several times, most notably in 1996 in the AEDPA and IIRIRA. In addition to the original offenses, the definition of "aggravated felony" now includes rape, sexual abuse of a minor, money laundering, crimes of violence for which the term of imprisonment is at least one year, theft, burglary, kidnaping, child pornography, RICO offenses, running a prostitution business or transporting people for the purpose of prostitution, fraud offenses where the loss exceeds $10,000, forgery, obstruction of justice, and other crimes. INA § 101(a)(43). As with crimes of moral turpitude, these offenses run the gamut from very serious crimes to relatively minor ones.

In determining whether a particular crime is an aggravated felony, federal law, not state law, controls. A crime categorized as a misdemeanor under state law constitutes an aggravated felony if it falls within the INA definition. See, e.g., Matter of Small (BIA 2002) (holding that misdemeanor sexual abuse of a minor is an aggravated felony). Further, INA § 101(a)(48) states that the suspension of a sentence does not change the classification of a crime as an aggravated felony. In United States v. Pacheco (2nd Cir. 2000), the Court of Appeals found that a misdemeanor theft charge for which the defendant received a one-year suspended sentence constituted an aggravated felony for immigration purposes. Pacheco had stolen a ten-dollar video game. He also had a misdemeanor conviction for domestic assault, constituting an independent ground for removal.

Although included as one of the original aggravated felonies, drug trafficking has been the subject of some controversy in recent years, in part because the definition of that crime includes the relatively common offense of possession. See 18 U.S.C. § 924(c); 21 U.S.C. § 801 et. seq.. In Matter of K- V- D- (BIA 1999), the BIA held that state law misdemeanor drug convictions would be considered aggravated felonies if the analogous federal crime was a felony. The Board subsequently overruled this decision in Matter of Yanez-Garcia (BIA 2002) and decided instead to defer to the federal circuit courts of appeal as to whether a particular state crime constitutes a felony drug trafficking offense.

Like drug trafficking, the "crime of violence" provision can encompass some relatively minor crimes. In a well-publicized example, removal proceedings were initiated against a permanent resident who had lived in the U.S. since infancy after the INS discovered that she once received a one-year suspended sentence for pulling another woman's hair. Only an executive pardon saved her from removal. 77 Interp.Rel. 1012. For some time, DUI offenses were also treated as crimes of violence. In Matter of Puente (BIA 1999), the Board held that driving under the influence would be considered an aggravated felony when punishable by a sentence of one year or more. After four of the circuit courts disagreed, the BIA reconsidered this decision and, in Matter of Ramos (BIA 2002), decided that DUI convictions are not crimes of violence.

The consequences of being convicted of an "aggravated felony" are severe. In addition to being subject to removal, non-citizens convicted of such offenses are permanently barred from re-entering the U.S. and may be sentenced to up to twenty years in prison if they re-enter illegally. INA §§ 212(a)(9)(i)(A), 276(b). A person convicted of an aggravated felony cannot establish good moral character and is thus permanently barred from naturalizing as a U.S. citizen. INA § 316(d). Persons convicted of aggravated felonies are subject to mandatory detention, can be placed in expedited removal proceedings, and are ineligible for most forms of relief from removal. INA §§ 236, 238, 240A, 240B. In addition, removal orders based on an aggravated felony are not subject to judicial review, although federal courts do have jurisdiction to determine whether a particular offense is an aggravated felony. INA § 242(a)(2)(C); see also Flores-Miramontes v. INS (9th Cir. 2000).

(c) Other Criminal Grounds  

Other sections of the INA allow removal for conviction of specific crimes. INA § 237(a)(2)(A)(iv) provides for the removal of any non-citizen convicted of a crime related to high speed flight from an immigration checkpoint. The BBS may remove a non-citizen convicted of violating any law or regulation relating to a controlled substance, such as narcotic drugs and marihuana. INA § 237(a)(2)(B). Cf. § 1-5, supra. Moreover, any non-citizen who at any time after admission abuses or becomes addicted to drugs is subject to removal. INA § 237(a)(2)(B)(ii). Unlike the general moral turpitude category, a non-citizen need not be sentenced in order to be removed for narcotics offenses. Likewise, a non-citizen convicted of possessing or carrying any automatic weapon, semi-automatic, or sawed-off shotgun may be removed. INA § 237(a)(2)(C). Non-citizens convicted of violating the Selective Service Act, espionage statutes, or certain other statutes dealing with the national defense are subject to removal if immigration authorities designate the non-citizen as an undesirable. INA § 237(a)(2)(D).

(i)  Avoiding The Immigration Consequences of Crimes

Because of the serious, sometimes unanticipated consequences of criminal conduct for non-citizens and their families, lawyers representing non-citizens accused of a crime, prosecutors, and judges have several special considerations to keep in mind. First, if the non-citizen is accused of a crime of moral turpitude, or an "aggravated felony," the lawyer will want to consider pleading the non-citizen to a lesser offense that does not involve moral turpitude, has a maximum sentence of less than one year, and/or is classified as a misdemeanor. Some prosecutors and judges are not aware of the severe consequences of criminal convictions for non-citizens who may, in some cases, be the sole support of U.S. citizen or permanent resident family members. In many cases, the rehabilitative and punitive purposes of prosecuting and sentencing can be achieved through imposing a stronger sentence for a lesser level crime without causing collateral unwanted immigration consequences.

Second, the INA also specifies that the moral turpitude or aggravated felony provisions do not apply to non-citizens who have been granted a full and unconditional pardon by the President or the governor of the state of conviction. INA § 237(a)(2)(A)(v). Hence, as a last resort, the lawyer may attempt to obtain a full pardon for the non-citizen. A pardon has no effect, however, on the other criminal grounds such as firearm or drug offenses. The statute does not provide for an automatic stay of removal upon filing a pardon application, so attorneys should apply for such a stay before applying for a pardon for their clients.

(page 7 of 8)

Print This Page