Grounds of deportation/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). Grounds of Inadmissibility are
applied to foreign individuals that are seeking admission (entry) 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 United States, but who became deportable/removable based upon certain violation of law. Certain grounds of inadmissibility and deportability are
eable under the INA
One of the most commonly applied grounds of inadmissibility and deportability is Criminal Grounds [INA § 212(a)(2) and INA §237(a)(2)]. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) expanded the scope of removability of noncitizens with criminal records. Foreign nationals are inadmissible to the U.S. if, for example, they have been convicted of, 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.
Crimes that have fraud as an element are considered to involve moral turpitude. Examples of CIMTs include, but are not limited to, murder, rape, arson, robbery, larceny/theft, and fraud. However, the crime of moral turpitude category does not cover certain juvenile or minor offenses.
Foreign nationals are also inadmissible and deportable if
they are convicted of two or more offenses, regardless of whether the offenses involved moral turpitude, for which the aggregate sentences to confinement were 5 years or more
inadmissible. Any foreign nationals known or suspected to have engaged, are engaging, or seek to enter the U.S. to engage in money
laundering are inadmissible as well.
Various criminal grounds for inadmissibility are, by their own terms, subject to exception, and most criminal grounds for inadmissibility may nevertheless be waived in a number of circumstances. The INA §212(h) provides three separate waivers for immigrants. Each of those waivers waive the following criminal inadmissibility grounds: 1) crimes of moral turpitude, 2) multiple criminal convictions, 3) prostitution and commercialized vice, 4) assertion of immunity from prosecution, and 5) a single offense of simple possession of 30 grams or less of marijuana. These waivers do not waive substance abuse offenses, other than a single offense of simple possession of 30 grams or less of marijuana, nor do they waive trafficking in controlled substances or persons, or engaging in particularly severe violations of religious freedom. However, certain aliens are barred from consideration for § 212(h) waivers for foreign individuals who have been convicted of murder or criminal acts involving torture, as well as attempts or conspiracies to commit murder or a criminal act involving torture. Further, a waiver under § 212(h) is not available in the case of a Legal Permanent Resident (LPR) if the individual has been convicted of an aggravated felony since the date of the admission as a LPR or the individual has not lawfully resided continuously in the United States for at least seven years immediately preceding the date of initiation of proceedings to remove the alien from the United States.
In addition to § 212(h) waivers, criminal grounds may be waived for aliens seeking temporary admission as nonimmigrants, such as those seeking to enter the United States as tourists. The consular or immigration officer may waive the criminal grounds of inadmissibility for nonimmigrants, under INA §212(d)(3). This waiver is granted in the exercise of discretion and the applicant must convince the consular or immigration officer to exercise discretion favorably.
If you have questions about the Criminal Ground of Inadmissibility and Deportability, and Immigrant and Non-immigrant Waivers, please contact Sujin Kim, Esq. at (251) 379-8065/ (251) 387-2544 or firstname.lastname@example.org