ALIENS INELIGIBLE TO RECEIVE VISAS & INELIGIBLE FOR ADMISSION; WAIVERS OF INADMISSIBILLITY

CRIMINAL AND RELATED GROUNDS.--

(A) CONVICTION OF CERTAIN CRIMES.--

(i) IN GENERAL.-- Except as provided in a clause (ii), any alien
convicted of, or who admits having committed, or who admits acts which
constitute the essential elements of--

(I) a crime involving moral turpitude (other than a purely political
offense), or

(II) a violation of (or a conspiracy to violate) any law or regulation
of a State, the United States, or a foreign country relating to a
controlled substance (as defined in section 102 of the Controlled
Substances Act (21 U.S.C. 802)), is inadmissible.

(ii) EXCEPTION.-- clause (i)(I) shall not apply to an alien who
committed only one crime if--

(I) the crime was committed when the alien was under 18 years of age and
the crime was committed (and the alien released from any confinement to
a prison or correctional institution imposed for the crime) more than 5
years before the date of application for visas or other documentation
and the date of application for admission to the United States, or

(II) the maximum penalty possible for the crime of which the alien was
convicted (or which the alien admits having committed or of which the
acts that the alien admits having committed constituted the essential
elements) did not exceed imprisonment for one year and, the alien was
not sentenced to a term of imprisonment in excess of 6 months
(regardless of the extent to which the sentence was ultimately
executed).

(B) MULTIPLE CRIMINAL CONVICTIONS.-- Any alien convicted of 2 or more
offenses (other than purely political 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 actually imposed were 5 years or more is inadmissible.

(C) 2a/ CONTROLLED SUBSTANCE TRAFFICKERS- Any alien who the consular
officer or the Attorney General knows or has reason to believe-- 
(i) is or has been an illicit trafficker in any controlled substance or
in any listed chemical (as defined in section 102 of the Controlled
Substances Act (21 U.S.C. 802)), or is or has been a knowing aider,
abettor, assister, conspirator, or colluder with others in the illicit
trafficking in any such controlled or listed substance or chemical, or
endeavored to do so; or 
(ii) is the spouse, son, or daughter of an alien inadmissible under
clause (i), has, within the previous 5 years, obtained any financial or
other benefit from the illicit activity of that alien, and knew or
reasonably should have known that the financial or other benefit was the
product of such illicit activity, is inadmissaible. 

Excludable Aliens: 8 USCS § 1182 (2002) pdf printable file.
1.93 MB, Estimated download time: < 11 minute(s) based on 28.8 modem connection.

Statutes:

 INA §§ 212 ,  213A
 8 USCS § 1182 ,  1183a

Regulations: 8 C.F.R. § 212
22 C.F.R. §§ 40.1-40.301
INS Operations Instructions, FAM, etc.
OI § 212, 9 FAM §§ 40.31-40.35 ; 40.61, 40.62

• I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal;
• I-601, Application for Waiver of Ground of Excludability;

Alien is not deemed to have been "convicted" of crime for purposes of
former 8 USCS § 1182(a)(9) until his conviction has attained substantial
degree of finality, and such finality does not occur unless and until
direct appellate review of conviction has been exhausted or waived.
Marino v Immigration & Naturalization Service, United States Dep't of
Justice (1976, CA2) 537 F2d 686.    

Although a nonfinal conviction for which procedures for a direct appeal
have not been exhausted or waived does not constitute a "conviction"
within meaning of [INA § 212(a)(9) former 8 USCS § 1182(a)(9)] and may
not be used to support a deportation order, it was harmless error for
Immigration Judge to have considered alien's conviction for purposes of
denying discretionary relief of voluntary departure while an appeal was
pending of alien's convictions. Kabongo v Immigration & Naturalization
Service (1988, CA6) 837 F2d 753, cert den (1988) 488 US 982, 102 L Ed 2d
564, 109 S Ct 533.

WAIVER OF INELIGIBILITY

Aliens who are ineligible for a visa may be eligible for a waiver of
ineligibility under one of the following provisions of the Act.

Section 212(g) of the Immigration and Nationality Act, provider that:

The Attorney General may waive the application of--

(1) subsection (a)(1)(A)(i) (health/vaccination requirements) in the case of any alien who--

(A) is the spouse or the unmarried son or daughter, or the minor
unmarried lawfully adopted child, or a United States citizen, or of an
alien lawfully admitted for permanent residence, or of an alien who has
been issued an immigrant visa, or

(B) has a son or daughter who is a United States citizen, or of an alien
lawfully admitted for permanent residence, or an alien who has been
issued an immigrant visa, or

(2) subsection (a)(1)(A)(ii) in the case of any alien , in accordance
with such terms, conditions, and controls, if any, including the giving
of bond, as the Attorney General, in his discretion after consultation
with the Secretary of Health and Human Services, may by regulation
prescribe.

Section 212(h) (crime waiver) provides that:

The Attorney General may, in his discretion, waive the application of
subparagraphs(A)(i)(I), (B), (D), and (E) of subsection (a)(2) and
subparagraphs (A)(i)(II) of such subsection insofar as it relates to a
single offense of simple possession of 30 grams or less of marijuana
if--

(1)(A) in the case of any immigrant it is established to the
satisfaction of the Attorney General that--

(i) the alien is excludable only under subparagraph (D)(i) or (D)(ii) of
such section or the activities for which the alien is excludable
occurred more than 15 years before the date of the alien's application
for a visa, entry, or adjustment of status,

(ii) the admission to the United States of such alien would not be
contrary to the national welfare, safety, or security of the United
States, and

(iii) the alien has been rehabilitated; or

(B) in the case of an immigrant who is the spouse, parent, son, or
daughter of a citizen of the United States or an alien lawfully admitted
for permanent residence if it is established to the satisfaction of the
Attorney General that the alien's exclusion would result in extreme
hardship to the United States citizen or lawful resident spouse, parent,
son, or daughter of such alien; and

(2) the Attorney General, in his discretion, and pursuant to such terms,
conditions and procedures as he may by regulations prescribe, has
consented to the alien's applying or reapplying for a visa, for
admission to the United States, or adjustment of status.

No waiver shall be provided under this subsection in the case of an
alien who has been convicted of (or who has admitted committing acts
that constitute) murder or criminal acts involving torture.

Section 212(h) of the Act, 8 U.S.C. § 1182(h) (1994), as amended by
Illegal Immigration Reform and Immigrant Responsibility Act of 1996,
Division C of Pub. L. No. 104-208, § 348(a), 110 Stat. 3009-546,
3009-639 (“IIRIRA”), limits statutory eligibility to apply for a waiver
in certain cases, providing in pertinent part as follows:

"No waiver shall be granted under this subsection in the case of an alien
who has previously been admitted to the United States as an alien
lawfully admitted for permanent residence if either since the date of
such admission the alien has been convicted of an aggravated felony or
the alien has not lawfully resided continuously in the United States for
a period of not less than 7 years immediately preceding the date of
initiation of proceedings to remove the alien from the United States."

See, In re Michel, 1998 BIA LEXIS 1, Interim Dec. No. 3335 (an alien not
previously admitted to the United States as an alien lawfully admitted
for permanent residence is statutorily eligible for a waiver of
inadmissibility under section 212(h) of the Immigration and Nationality
Act, despite his conviction for an aggravated felony. Conviction for an
aggravated felony is not a ground of inadmissibility. An alien who is
inadmissible under this section may, if statutorily eligible, seek a
waiver of inadmissibility under section 212(h) of the Act.)

MISREPRESENTATION:  Any alien who, by fraud or willfully
misrepresenting a material fact, seeks to procure (or has sought to
procure or has procured) a visa, other documentation, or admission into
the United States or other benefit provided under this Act is
inadmissible. (i)

Section 212(i) of th the Immigration and Nationality Act, provides that:

The Attorney General may, in his discretion, waive application of clause
(i) (fraud) of subsection (a)(6)(C)--

in the case of an immigrant who is the spouse, son, or
daughter of a United States citizen or of an alien lawfully admitted for
permanent residence if it is established to the satisfaction of the
Attorney General that the refusal of admission to the United States of
such immigrant alien would result in extreme hardship to the citizen or
lawfully resident spouse or parent of such an alien;

Note that parents are no longer eligible for this waiver. No court shall
have jurisdiction to review a decision or action of the Attorney General
regarding a waiver.

Extreme hardship is not a definable term of fixed and inflexible
meaning, and the elements to establish extreme hardship are dependent
upon the facts and circumstances of each case.

The factors to be used in determining whether an alien has established
extreme hardship pursuant to section 212(i) of the Act include, but are
not limited to, the following: the presence of lawful permanent resident
or United States citizen family ties to this country; the qualifying
relative's family ties outside the United States; the conditions in the
country or countries to which the qualifying relative would relocate and
the extent of the qualifying relative's ties to such countries; the
financial impact of departure from this country; and, finally,
significant conditions of health, particularly when tied to the
unavailability of suitable medical care in the country to which the
qualifying relative would relocate.

Section 212(d)(11) of the Immigration and Nationality Act, provides
that:

The Attorney General may, in his discretion for humanitarian purposes,
to assure family unity, or when it is otherwise in the public interest,
waive application of clause (i) of subsection(a)(6)(E) in the case of
any alien lawfully admitted for permanent residence who temporarily
proceeded abroad voluntary and not under an order or deportation, and
who is otherwise admissible to the United States as a returning resident
under section 211(b) and in the case of an alien seeking admission or
adjustment of status as an immediate relative or immigrant under section
203(a) (other than paragraph (4) thereof) if the alien has encouraged,
induced, assisted, abetted or aided only the alien's spouse, parent,
son, or daughter (and no other individual) to enter the United States in
violation of law.

Section 212(d)(3) of the Immigration an Nationality Act, provides that:

Except as provided in this subsection, an alien (A) who is applying for
a nonimmigrant visa and is know or believed by the consular officer to
be ineligible for such visa under one or more of the paragraphs
enumerated in subsection (q) (other than paragraphs (3)(A)(i)(I),
(3)(A)(ii), (3)(A)(iii), (3)(C), or(3)(E) of such subsection), after
approval by the Attorney General of a recommendation by the Secretary of
State or by the consular officer that the alien be admitted temporarily
despite the Secretary of State or by the consular officer that the alien
be admitted into the United States temporarily as a nonimmigrant in the
discretion of the Attorney General... The Attorney General shall
prescribe conditions including exaction of such bonds as may be
necessary to control and regulate the admission and return of excludable
aliens applying for temporary admission under this paragraph.

212(h) & ADJUSTMENT OF STATUS TO LPR

A person previously admitted into the United States becomes inadmissible
as a permanent resident because of a criminal conviction. However, a
person with a qualifying relationship may apply to adjust his or her
status in proceedings and apply for a waiver under Section 245 of the
Immigration and Nationality Act. The waiver forgives the conviction for
immigration purposes and allows the person to adjust status. This
process also applies permanent residents who are seeking to readjust
their status because of a criminal conviction.

INA § 212(h) waives many criminal convictions if the alien meets the
other requirements of the waiver. An INA § 212(h) application waives
inadmissibility for convictions of crimes of moral turpitude; multiple
crimes; prostitution; and, assertion of diplomatic immunity. However,
section 212 (h) does not waive drug crimes -except for a single offense
for possession of thirty grams or less of marijuana- or aggravated
felony convictions.

Besides possessing a qualifying conviction, the alien must also meet
other criteria. For an offense committed in the last fifteen years, the
alien must be the spouse, parent, son, or daughter of a lawful permanent
resident or US citizen, demonstrate that their qualifying lawful
permanent resident or US citizen relative would suffer extreme hardship
if the government deports the relative, and have seven years lawful
residence in the United States before the commencement of removal
proceedings.

The waiver is discretionary. As with cancellation of removal
applications, immigration judges use an informal balancing test to weigh
the evidence.

CANCELLATION OF REMOVAL & ADJUSTMENT OF STATUS (Sec. 1229b.)

Non-citizens-with or without permanent resident status, who are
deportable from the United States may still be able to remain if an
immigration judge has canceled their departure.

The Attorney General may cancel removal in the case of an alien who is
inadmissible or deportable from the United States if the alien -

(1) has been an alien lawfully admitted for permanent residence for not
less than 5 years,

(2) has resided in the United States continuously for
seven (7) years (date of offense stops time of lawful residence) after having
been admitted in any status, and

(3) has not been convicted of any aggravated felony.

Cancellation and adjustment for nonpermanent resident

The Attorney General may cancel removal of, and adjust to the status
of an alien lawfully admitted for permanent residence, an alien who is
inadmissible or deportable from the United States if the alien -

(A) has been physically present in the United States for a continuous
period of not less than 10 years immediately preceding the date of such
application;

(B) has been a person of good moral character during such period;

(C) has not been convicted of an offense under section 1182(a)(2),
1227(a)(2), or 1227(a)(3) of this title; and

(D) establishes that removal would result in exceptional and extremely
unusual hardship to the alien's spouse, parent, or child, who is a
citizen of the United States or an alien lawfully admitted for permanent
residence.

CRIMES INVOLVING MORAL TURPITUDE

Examples of CIMTs: Murder and voluntary manslaughter, kidnaping, assault
with intent to harm, assault with deadly weapon, child abuse, theft and
larceny, fraud, rape, prostitution, arson, blackmail, counterfeiting,
and willful tax evasion.

IMMIGRATION CONSEQUENCES OF CRIMINAL CONDUCT

All aliens, including lawful permanent residents, are subject to
immigration consequences for violation of U.S. immigration laws. More
than twenty-five sections of the Immigration and Nationality Act contain
provisions which impose separate immigration consequences for criminal
conduct. Ranging broadly, these sanctions impact issues such as
admissibility to the U.S., deportation and removal, and eligibility for
naturalization, discretionary waivers and other benefits.

A determination as to whether a specific crime involves moral turpitude
is particularly troublesome for the practitioner. Neither the INA nor
its legislative history provides a definition of a crime of moral
turpitude. The BIA has followed a widely accepted interpretation that
the term "moral turpitude" means an act of baseness, vileness, or
depravity in the private and social duties owing to one's fellow man or
society in general, contrary to accepted and customary rules, that is
dependent upon depraved or vicious motives on the part of the alien. In
deciding whether a crime involves moral turpitude, one must examine what
the statute punishes, not the act committed. Matter of Perez-Contreras,
20 I&N Dec. 615 (BIA 1992).

INADMISSIBILITY:

Excludable Aliens: 8 USCS § 1182 (2002) pdf printable file.
1.93 MB, Estimated download time: < 11 minute(s) based on 28.8 modem connection.

Statutes:

 INA §§ 212 ,  213A
 8 USCS § 1182 ,  1183a

Regulations: 8 C.F.R. § 212
22 C.F.R. §§ 40.1-40.301
INS Operations Instructions, FAM, etc.
OI § 212, 9 FAM §§ 40.31-40.35 ; 40.61, 40.62

• I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal;
• I-601, Application for Waiver of Ground of Excludability;

An alien seeking to enter the United States must generally be eligible
for a particular immigrant or nonimmigrant visa classification and must
not be inadmissable under any of the grounds listed in INA §Section
212(a), 8 U.S.C. §1182(a). The statute sets forth numerous grounds for
inadmissability, several of which relate to criminal activity.

Aliens who are convicted of certain crimes or admit to having committed
acts which constitute the essential elements of such crimes are
inadmissable. A determination as to whether an alien is inadmissible
must be made during each of the following immigration procedures:

1. application for a visa at a United States Consulate;
2. application for admission to the United States upon arrival at the
port of entry;
3. administrative removal proceedings to determine whether alien should
be removed premised on allegations that alien was actually inadmissible
at the time of admission or adjustment of status to that of a lawful
permanent resident;
4. inspection by immigration officer;
5. application by alien in the United States seeking adjustment to
lawful permanent resident status
6. reentry into the United States by returning lawful permanent
resident;
7. application for naturalization by lawful permanent resident required
to show that original admission was lawful.

CRIMES THAT MAKE AN ALIEN INADMISSABLE

CRIMES INVOLVING MORAL TURPITUDE

An alien who has been convicted of a crime involving moral turpitude or
admits to having committed the crime or essential elements of the crime
is inadmissable unless the crime was a purely political offense. INA
§212(a)(2)(A)(I)(I); 8 U.S.C. §1182(a)(2)(A)(I)(I).

Conviction for a single offense of a crime involving moral turpitude
will not make an alien inadmissable if the crime was committed when the
alien was under eighteen years old and five years have passed since the
alien was convicted or the alien's imposed confinement, if any, was
completed. INA §212(a)(2)(A)(ii)(I), 8 U.S.C. §1182(a)(2)(A)(ii)(I).

Similarly, a single offense will not serve as the basis for
inadmissability if the maximum penalty possible for the crime does not
exceed one year and the alien is not sentenced to imprisonment for more
than six months. INA §212(a)(2)(A)(ii)(II), 8 USC
§1182(a)(2)(A)(ii)(II).

MULTIPLE CRIMINAL CONVICTIONS

An alien who has been convicted of two or more offenses, other than
purely political offenses, regardless of whether the offenses included
moral turpitude, is inadmissable if the aggregate sentences to
confinement actually imposed were five years or more. INA §212(a)(2)(B),
8 U.S.C. §1182(a)(2)(B). The final sentence imposed is critical because
the actual time served in confinement is not relevant under this
section. Fonseca-Leite v. INS, 961 F2d 60 (5th Cir. 1992).

Under INA § 212(a)(10) [former 8 USCS § 1182(a)(10)], the actual time
spent in confinement is irrelevant, and where the alien was sentenced to
two consecutive 3-year periods of confinement, 6 years was the aggregate
sentences to confinement actually opposed, and the fact that a portion
of the 6 years was suspended, did not change the essential and basic
fact that the alien was subjected to a prison sentence in excess of 5
years on his two offenses, in spite of the fact that he was actually
confined for just over two years. Fonseca-Leite v INS (1992, CA5) 961
F2d 60.

Followed by In re Esposito, 1995 BIA LEXIS 5, 21 I. & N. Dec. 1, 14
Immigr. Cas. Rep. B1-45, I. & N. Dec. Interim No. 3243, Int. Dec. No.
3243 (B.I.A. 1995) For purposes of section 212(a)(10) of the Immigration
and Nationality Act, 8 U.S.C. § 1182(a)(10) (1988), and its successor
provision at section 212(a)(2)(B) of the Act, 8 U.S.C. § 1182(a)(2)(B)
(Supp. V 1993), a sentence is "actually imposed" where a criminal court
suspends the execution of a sentence, but no sentence is "actually
imposed" where the imposition of sentence is suspended. Matter of
Castro, 19 I&N Dec. 692 (1988), followed.

Matter of Castro, 19 I&N Dec. 692 (BIA 1988), the BIA found that when
a court imposes a sentence but suspends execution of that sentence, the
sentence is "actually imposed" for purposes of section 212(a)(9) of the
Act even though probation may also be granted.

Former section 212(a)(9) of the Act was revised and redesignated as
sections 212(a)(2)(A)(i)(I) and (II) of the Act. The phrases "sentence
actually imposed" in section 212(a)(9) and "sentences to confinement
actually imposed" in section 212(a)(10) appeared in the Act, at the same
time, in successive paragraphs, and relate to the same object and
subject matter. No substantive change was made in revising and
redesignating section 212(a)(10) as section 212(a)(2)(B). Castro is
equally applicable to section 212(a)(2)(B).

The Board of Immigration Appeals has held that concurrent sentences are
not aggregate sentences. In re Fernandez, 14 I&N Dec. 24 (BIA 1972).

Alien who was convicted on two counts of transporting forged securities
and was sentenced to concurrent 3-year term of imprisonment on each
count, although excludable under former 8 USCS § 1182(a)(9), was not
excludable under former 8 USCS § 1182(a)(10) authorizing exclusion of
alien convicted of 2 or more offenses for which aggregate sentences to
confinement actually imposed were 5 years or more, since aggregate
sentence actually imposed, for purposes of § 1182(a)(10), was three
years. In re Fernandez (1972, BIA) 14 I & N Dec 24.

DEPORTABILITY:

General classes of deportable aliens 8 USCS § 1227 (2002) 1.0 MB printable PDF file, Estimated download time: < 6 minute(s) based on 28.8 modem connection.

Statutes:

 INA § 237
 8 USCS § 1227

Any alien physically present and deemed admitted to the United States is
subject to removal if he or she falls within one or more of the
statutory classes of deportable aliens. INA §237(a), 8 USC §1227(a). An
alien must have made an "entry" into the United States to be deportable,
whereas an alien need only be seeking entry to be inadmissible. The
statute designates numerous grounds for deportability, many of which are
premised on criminal activity.

CRIMES INVOLVING MORAL TURPITUDE

An alien who is convicted of a single crime involving moral turpitude
committed within five years after admission is deportable if the
possible sentence is one year or longer, regardless of the actual
sentence imposed. INA §237(a)(2)(A)(I), 8 USC §1227(a)(2)(A)(I).

Additionally, an alien convicted of two crimes involving moral turpitude
that are not a "single scheme" of criminal misconduct is deportable
regardless of confinement and regardless of whether the convictions were
in a single trial. INA §237(a)(2)(A)(ii), 8 USC 1227(a)(2)(A)(ii).
"Single scheme" of criminal misconduct has been defined as acts which,
although separate criminal offenses, were committed in furtherance of a
single criminal episode, as when one crime constitutes a lesser offense
of another or two crimes arise from and are the natural outcome of a
single act of criminal misconduct. In re Adetiba, 20 I&N Dec. 506 (BIA
1992).

Home | About | Practice Areas | Legal Links | Contact
Español | Disclaimer

Updated: Sunday December 23, 2007
Copyright © 2008 Michael Baker Law Offices
All rights reserved

www.mikebakerlaw.com