Grounds of Inadmissibility

 

Grounds of removal from the United States are divided into two different categories under the U.S. Immigration and Nationality Act (“INA”): (1) Grounds of Inadmissibility under § 212(a); and (2) Grounds of Deportation under § 237(a)(1)(A).  There are several areas of overlap between these two sections of law.  The main differences lie in the applicability of each section.  In simple terms, the grounds of inadmissibility are applied to individuals that are seeking admission to the United States and who have not yet been admitted.  The grounds of deportation apply to individuals who have been admitted to the U.S. and who are physically located within the U.S., but who are now deportable based upon some violation of law.

 

Inadmissibility  

In order to gain entry into the U.S., a foreign national must meet all applicable statutory requirements and must demonstrate that s/he is not inadmissible under INA § 212(a).  There are numerous grounds of inadmissibility.  The most commonly applied grounds of inadmissibility are set forth below.

 

(1) Health-Related Grounds of Inadmissibility [INA § 212(a)(1)]: A foreign national will be denied entry if they are determined to have a communicable disease of public significance (in accordance with the Department of Health and Human Services’ regulations).  Diseases that will cause inadmissibility under this section include, but are not limited to, the following: chancroid, gonorrhea, granuloma inguinale, leprosy (infectious), lymphogranuloma venereum, syphilis (infectious stage), tuberculosis (active), and any quarantinable diseases designated by Presidential Executive order. (Note: HIV has been removed from the list).

  •         Vaccinations
  •         Physical or Mental Disorder
  •         Drug Abusers and Addicts

 

(2) Criminal Grounds of Inadmissibility [INA § 212(a)(2)]: A foreign national is inadmissible to the U.S. if s/he has been convicted or, or who admits having committed, or who admits committing acts which constitute the essential elements of either (1) a crime involving moral turpitude (“CIMT”); or (2) an offense relating to a controlled substance. 

The term CIMT is not defined under the INA.  Several courts have, however, issued precedential decisions that serve to guide Immigration Judges and Immigration officers in the application of such charges.  A CIMT refers generally to conduce that is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.  

Examples of CIMTs include, but are not limited to: murder, rape, arson, robbery, larceny/theft, and fraud. 

  • Exceptions for Juveniles: Inadmissibility based upon a CIMT will NOT apply to a foreign national if the crime was committed when the foreign national was under 18 years of age, and the crime was committed more than 5 years before the date of application for admission to U.S.  

 

  • Petty Offense Exception: Inadmissibility based upon a CIMT will also not apply if the maximum penalty possible for the crime of conviction did not exceed imprisonment for one year and, if the foreign national was convicted of such crime, s/he was not sentenced to a term of imprisonment in excess of 6 months. 

 

- Conviction of Two or More Offenses [INA § 212(a)(2)(B)]: Any foreign  national convicted of 2 or more offenses, regardless of whether the conviction was in a single trial or whether the offenses arose from a single scheme of misconduct, and regardless of whether the offenses involved moral turpitude, for which the aggregate sentences to confinement were 5 years or more, is inadmissible.

 

- Drug Trafficking [INA § 212(a)(2)(C)]:  An foreign national will be found inadmissible if s/he is reasonably believed to be a trafficker in any controlled substance, or if s/he has been a knowing aider, assister, abettor, conspirator or colluder with others in the illicit trafficking in any controlled substance.

 

- Prostitution [INA § 212(a)(2)(D)]:  A foreign national who prostitutes, or who has engaged in or sought to engage in prostitution, or to procure prostitutes within the past 10 years, or seeks to engage in prostitution, is inadmissible.

 

- Human Trafficking [INA § 212(a)(2)(H)]: A foreign national is inadmissible if s/he commits or conspires to commit human trafficking offenses in the U.S. or outside the U.S.  In addition, a person will be inadmissible if immigration authorities know, or have reason to believe that the person has been a knowing aider, abettor, assister, conspirator, or colluder with a trafficker in severe forms of trafficking.  NOTE: there is an exception to this ground of inadmissibility if the offense involves sons or daughters.

 

- Money Laundering [INA § 212(a)(2)(I)]: Any person known or suspected to have engaged, is engaging, or seeks to enter the U.S. to engage in money laundering is inadmissible, as are knowing aiders, abettors, assisters, conspirators, or colluders. 

 

Waivers Available:  Certain grounds of criminal inadmissibility are waiveable under the INA, under either INA § 212(h) for immigrants or INA § 212(d)(3) for nonimmigrants.

 

(3) Economic Grounds of Inadmissibility [INA § 212(a)(4)]: A foreign national who is deemed to be a “public charge” is inadmissible. A “public charge” has been defined as a person who “by reason of poverty, insanity, disease or disability would become a charge upon the public.”  The Department of State and the United States Citizenship and Immigration Services define a public charge as a person who is “likely to become primarily dependent on the government for subsistence, as demonstrated by either (1) the receipt of public cash assistance for income maintenance or (2) institutionalization for long-term care at government expense.” Immigration officials previously applied a totality of the circumstances test when determining a public charge; however, Congress mandates that the following factors be taken into account: (1) age; (2) health; (3) family status; (4) assets, resources, and financial status; and (5) education and skills.

 

(4) Illegal Entrants & Immigration Violators [INA § 212(a)(6)]— 

  • Present Without Admission or Parole [INA § 212(a)(6)(A)(i)]: Individuals present in the U.S. without being admitted or paroled are inadmissible.  This ground of inadmissibility will be applied to anyone found within the U.S. who has entered the U.S. without inspection ("EWI"). 

 

  • Failure to Attend Removal Proceedings [INA § 212(a)(6)(B)]: this offense will render an individual inadmissible to the U.S. for 5 years from the date of departure. 

 

  • Fraud and Misrepresentation [INA § 212(a)(6)(C)]:

In general: anyone who, by fraud or willfully misrepresenting a material fact, seeks to procure a visa, other documentation, or admission into the U.S., or any other benefit provided under the INA is inadmissible for life.  NOTE: in some situations, a waiver may be available under INA 212(i) [immigrants] or INA 212(d)(3) [nonimmigrants].

 

Falsely claiming U.S. citizenship for any purpose or benefit under the INA or any other Federal or State law will render a foreign national inadmissible for life.  There is no immigrant waiver available. 

  

  • Smugglers [INA § 212(a)(6)(E)]: Any foreign national who at any time knowingly has encouraged, induced, assisted, abetted, or aided another foreign national to enter or try to enter the U.S. in violation of law is inadmissible.  NOTE: there are exceptions that apply in specific situations involving family.

  

(5) Documentation Requirements [INA § 212(a)(7)]—

 

  • Intending Immigrant [INA § 212(a)(7)(A)(i)(I)] – This is the most common ground of inadmissibility applied under INA § 212(a)(7).  Any foreign national who seeks to enter the U.S. and remain here permanently, or who is suspected of seeking to enter the U.S. and remain here permanently, but who does not have the proper documents to demonstrate that s/he has authorization to do so, is inadmissible.

 

(6) Foreign Nationals Previously Removed [INA § 212(a)(9)]—

 

  • Arriving Aliens [INA § 212(a)(9)(A)(i)]: Any foreign national who has been previously removed and whose removal proceedings were initiated upon the foreign national’s arrival in the U.S. and who again seeks admission within 5 years of the date of such removal (or 20 years in the case of a second or subsequent removal) is inadmissible.

 

  • Unlawful Presence [INA § 212(a)(9)(B)]: Any foreign national who has been unlawfully present for a period of more than 180 days but less than one year is inadmissible for 3 years.  Any foreign national who has been unlawfully present for a period of one year or more is inadmissible for 10 years.  An individual is deemed to be unlawfully present in the U.S. if s/he is present in the U.S. after the expiration of the authorized period of stay, or is present in the U.S. without being admitted or paroled.  NOTE: there are exceptions for minors, asylees, battered women and children.  There is also an immigrant waiver available.

 

  • Unlawful Presence After Previous Immigration Violation [INA § 212(a)(9)(C)]: Any foreign national who has been unlawfully present in the U.S. for an aggregate period of more than 1 year, OR who has been ordered removed from the U.S., who then enters or attempts to enter the U.S. without being admitted is inadmissible for life.  NOTE: an immigrant waiver is available, but only after the inadmissible individual has remained outside of the U.S. for a minimum period of 10 years.

 

(7) Miscellaneous Grounds of Inadmissibility [INA § 212(a)(10)]— 

  •         Practicing Polygamists
  •         International Child Abduction
  •         Unlawful Voters
  •         Ineligible for Citizenship
  •         Foreign Nationals who Evaded the Draft