Section 237 Deportability Statutes: General Crimes

 

Introduction

Section 237 of the Immigration and Nationality Act (INA) contains the INA's deportability provisions. In general, these apply to aliens who have been admitted into the United States and are present in the United States. Section 237(a)(2) of the INA contains the criminal deportability grounds. These provisions, in general, cover aliens who engage in criminal conduct or have specific criminal convictions subsequent to admission. In this article, we will cover the criminal deportability grounds in section 237(a)(2) of the INA.

This article is one part of a six-part series on the deportability provisions in section 237(a) of the INA. To read the other articles in the series, please consult the following list:

A. General Crimes

Section 237(a)(2)(A) provides for the removability of aliens who are convicted of “General crimes.” This means that in order to be removable under section 237(a)(1)(A), the alien must have a specified criminal conviction. The statute contains five subclauses outlining distinct deportability provisions and convictions. A sixth subclause provides for a limited waiver of removability under the first four subclauses. We will analyze each of the subclauses in turn below.

i. Crimes of moral turpitude

Section 237(a)(2)(A)(i)(I) renders deportable any alien who “is convicted of some crime involving moral turpitude committed within five years … after the date of admission.” Furthermore, under section 237(a)(2)(A)(i)(II), the conviction must be one “for which a sentence of one year or longer may be imposed.” Clause (A)(i)(II) means that the actual sentence imposed need not be one year of imprisonment, but rather a possible sentence for conviction of the offense must include at least one year of imprisonment.

There is one special rule under section 237(a)(2)(A)(i)(I). If the alien's status is adjusted under section 245(j) of the INA (adjustment for S-visa holders), then any conviction described above within ten years of adjustment, instead of five, will render the alien deportable.

In Matter of Tima, 26 I&N Dec. 839 (BIA 2016) [PDF version] [see article], the Board held that section 237(a)(1)(H) [see section] cannot waive section 237(a)(2)(A)(i) removability under any circumstances.

Whether a conviction is for a crime involving moral turpitude will depend on the specific language of the statute of conviction. We have a growing collection of articles on crimes involving moral turpitude on site. For example, please see our list of articles on Board of Immigration Appeals (BIA) decisions on the subject [see section].

ii. Multiple criminal convictions

Section 237(a)(2)(A)(ii) renders removable “[a]ny alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial…” This provision does not have the same 5-year limit 237(a)(2)(A)(i).

Section 237(a)(2)(A)(ii) provides for a second way in which an individual convicted of a crime involving moral turpitude may be charged as removable. Under section 237(a)(2)(A)(i), a single conviction for a crime involving moral turpitude for which a sentence of at least one year imprisonment may be imposed subjects an individual to removal. Under section 237(a)(2)(A)(ii), multiple convictions for crimes involving moral turpitude may render an individual subject to removal, regardless of the sentences actually imposed or the sentences that may be imposed.

However, section 237(a)(2)(A)(ii) contains an important limitation. The multiple convictions for crimes involving moral turpitude cannot “aris[e] out of a single scheme of criminal misconduct.” As the statute makes clear, the fact that multiple convictions arise from the same trial does not mean that they necessarily arose out of a single scheme of misconduct. Whether multiple convictions are determined to arise out of the same scheme of misconduct or different schemes of misconduct will turn on an inquiry into the specific facts of a given case and the controlling law in the jurisdiction from which the case arises.

The Board's most significant standing precedent on this issue comes from its 1992 published decision in Matter of Adetiba, 20 I&N Dec. 506 (BIA 1992) [PDF version]. Here, the Board followed its long-standing rules on the issue when it held that “when an alien has performed an act, which, in and of itself, constitutes a complete, individual, and distinct crime, he is deportable when he again commits such an act, even though one may closely follow the other, be similar in character, and even be part of an overall plan of misconduct.” Id. at 509. The Board distinguished this from “cases where there are separate and distinct crimes but they are performed in furtherance of a single criminal episode.” Id. The Department of Homeland Security (DHS) has the “burden of establishing by clear, unequivocal, and convincing evidence” that multiple convictions did not arise out of a single scheme of criminal misconduct. Id. at 513. Following Matter of Adetiba, the Board held in Matter of Islam, 25 I&N Dec. 637, 642 (BIA 2011) [PDF version], that a respondent who was convicted of two counts of forgery and possession of stolen property based on his use of multiple stolen credit cards to obtain items of value at five separate locations in a single day had been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct.

iii. Aggravated felony

Under section 237(a)(2)(A)(iii), “[a]ny alien who is convicted of an aggravated felony at any time after admission” is subject to removal. The extensive list of immigration aggravated felonies is found at section 101(a)(43) of the INA [see article]. Whether an alien is convicted of an aggravated felony depends on the specific conviction and other case-specific facts. We have many articles on site covering different aggravated felony provisions. For example, please see our article on BIA decisions on the issue [see section].

iv. High speed flight

Section 237(a)(2)(A)(iv) renders removable “[a]ny alien who is convicted in violation of [18 U.S.C. 758] (relating to high speed flight from an immigration checkpoint)…”

In order to be deported under this provision, the alien must actually be convicted for violation 18 U.S.C. 758, which reads as follows: “Whoever flees or evades a checkpoint operated by the [DHS], or any other Federal law enforcement agency, in a motor vehicle and flees Federal, State, or local law enforcement agents in excess of the legal speed limit shall be fined under this title, imprisoned not more than five years, or both.”

v. Failure to register as a sex offender

Under section 237(a)(2)(A)(v), “[a]ny alien who is convicted under [18 U.S.C. 2250]” is removable. This statute covers various offenses under the rubric of failure to register as a sex offender. Please see our full article to read about 18 U.S.C. 2250 in detail [see article].

vi. Waiver authorized

Section 237(a)(2)(A)(vi) authorizes a waiver of removability for aliens described in section 237(a)(2)(A)(i), (ii), (iii), and (iv). The waiver only applies if the alien “has been granted a full and unconditional pardon by the President of the United States or by the Governor of any of the several states.” This means that a pardon may remedy removability for crimes involving moral turpitude, an aggravated felony conviction, or a Federal conviction for high speed flight from an immigration checkpoint. The President may issue pardons only for Federal convictions whereas a Governor may issue pardons only for State convictions. It is important to note that this waiver does not apply to failure to register as a sex offender under section 237(a)(2)(A)(v).

In Matter of Suh, 23 I&N Dec. 626 [PDF version], the Board held that a pardon did not waive an alien's removability under section 237(a)(2)(E)(i) because that provision is not included within former section 237(a)(2)(A)(v) (current 237(a)(2)(A)(vi)).

B. Controlled Substances

Section 237(a)(2)(B) contains two distinct deportability provisions relating to controlled substance offenses We will examine each of the clauses below.

i. Conviction

Section 237(a)(2)(B)(i) renders removable “[a]ny alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in [21 U.S.C. 802]), other than a single offense involving possession for one's own use of 30 grams or less of marijuana…”

In order to be removable under section 237(a)(2)(B)(i), the alien must actually be convicted of a controlled substance violation. The substance involved must be on the Federal list of controlled substances. In Mellouli v. Lynch, 135 S.Ct 1980 (2015) [PDF version], the Supreme Court of the United States applied the categorical approach in finding that a Kansas drug paraphernalia statute was categorically overbroad (i.e., it included several substances that were not included on the list of Federal controlled substances).

There is a limited exception from section 237(a)(2)(B)(i) if the alien is convicted of a single offense involving 30 grams or less of marijuana for personal use (marijuana is on the list of Federally controlled substances). The Board has, on multiple occasions, applied the circumstance-specific approach to determining if an alien's conviction falls under the 30 grams or less of marijuana for personal use exception in the context of different controlled substances statutes [see article].

To learn more about inadmissibility and deportability for controlled substances violations, including the list of controlled substances, please see our full article on the subject [see article].

ii. Drug abusers and addicts

The less commonly used clause of section 237(a)(2)(B)(ii) renders removable “[a]ny alien who is, or at any time after admission has been, a drug abuser or addict…”

Unlike section 237(a)(2)(B)(i), the deportability provision for drug abusers and drug addicts does not require a conviction. The DHS must only establish that the individual was (1) a drug abuser or addict at (2) any time after admission.

In Matter of F-S-C-, 8 I&N Dec. 108 (BIA 1958) [PDF version], the Board held that the nearly identical language of former section 241(a)(11) distinguished the term “addict” from “user” in holding that the statute does not extend to “mere users.” In Matter of T-, 8 I&N Dec. 523 (BIA 1960) [PDF version], the Board held that hospital records relating to a respondent's addiction to narcotics are admissible as evidence in proceedings.

C. Certain Firearm Offenses

Section 237(a)(2)(C) renders removable “[a]ny alien who at any time after admission is convicted under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry, any weapon, part, or accessory which is a firearm or destructive device (as defined in [18 U.S.C. 921(a)…” (emphasis added).

In short, section 237(a)(2)(C) covers convictions for a wide array of conduct having to do with firearms or destructive devices as defined in 18 U.S.C. 921(a) [PDF version]. A conviction is required.

Interestingly, section 237(a)(2)(C) does not have a corresponding inadmissibility ground, unlike many of the more common deportability provisions.

We will continue to add to the site more articles on the subject of section 237(a)(2)(C). Please see our article on Matter of Flores-Abarca, 26 I&N Dec. 922 (BIA 2017) [PDF version] [see article], which was a recent BIA precedent decision on the issue.

D. Miscellaneous Crimes

Section 237(a)(2)(D) includes four clauses covering a variety of different types of offenses.

Section 237(a)(2)(D) requires a final judgment of conviction of a specified offenses. It also covers aliens who are convicted of a conspiracy or attempt to violate one of the specified provisions. We will examine each of the four clauses that compose section 237(a)(2)(D) below.

i. Relating to espionage, sabotage, or treason and sedition

Section 237(a)(2)(D)(i) covers convictions in violation of 18 U.S.C. 37 (relating to espionage), 18 U.S.C. 105 (relating to sabotage), and section 18 U.S.C. 115 (relating to treason and sedition), provided that a term of imprisonment of five years or more may be imposed (as opposed to was actually imposed) for the conviction. Convictions for conspiracies or attempts to violate any of these criminal statutes as they relate to espionage, sabotage, or treason and sedition are also covered, again provided that the sentence that may be imposed is five years or more.

ii. Threats against President and successors to the Presidency or Expedition against friendly nation

Section 237(a)(2)(D)(ii) covers convictions under 18 U.S.C. 871 [PDF version] and 960 [PDF version].

18 U.S.C. 871 criminalizes threats against the President of the United States, the Vice President of the United States, and, when applicable, the President-elect and Vice President-elect. We cover this criminal statute in detail in a separate article [see article].

18 U.S.C. 960 criminalizes certain expeditions against friendly nations. You may read the statute below:

iii. Military Selective Service Act or Trading With the Enemy Act

Section 237(a)(2)(D)(iii) covers convictions of the following statutes. Before continuing, please note that in 2015, both of the criminal provisions incorporated into section 237(a)(2)(D)(iii) were moved to different places in the U.S. Code [PDF version].

First, a conviction for a violation of any provision of former 50 U.S.C. App. 451 et seq. (Military Selective Service Act) will render an alien removable. The provision is now codified at 50 U.S.C. 3801 et seq. [PDF version].

Second, a conviction for a violation of former 50 U.S.C. App. 1 et seq. (Trading With the Enemy Act) renders an alien deportable. This provision is now codified at 50 U.S.C. 4301 et seq.

iv. Travel control of citizens and aliens or Importation of alien for immoral purpose

Section 237(a)(2)(D)(iv) covers violations of section 215 of the INA (Travel control of citizens and aliens) and section 278 of the INA (Importation of alien for immoral purpose).

Section 215 covers restrictions and prohibitions on the entry to or departure from (or attempts) the United States. You may read section 215 here: [PDF version].

Section 278 of the INA criminalizes importation of an alien for immoral purposes. You may read the text of the provision below:

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E. Crimes of domestic violence, stalking, or violation of protection order, crimes against children and -

Section 237(a)(2)(E) two separate and distinct deportability provisions. We will analyze both clauses below.

i. Domestic violence, stalking, and child abuse

Section 237(a)(2)(E)(i) renders removable “[a]ny alien who at any time after admission is convicted of a crime of domestic violence, crime of stalking, or a crime of child abuse, child neglect, or child abandonment…”

In the section 237(a)(2)(E)(i), a “crime of domestic violence” is defined as a crime of violence (as defined in 18 U.S.C. 16) “against a person committed by a current or former spouse of the person, by an individual with whom the person shares a child in common, by an individual who is cohabiting with or has cohabited with the person as a spouse, by an individual similarly situated to a spouse of the person under the domestic or family violence laws of the jurisdiction where the offense occurs, or by any other individual against a person who is protected from that individual's acts under the domestic or family violence laws of the United States or any State, Indian tribal government, or unit of local government.” In other words, a “crime of domestic violence” in the 237(a)(2)(E)(i) context is a crime of violence committed against a specified individual.

A conviction is required in order for an alien to be removable under section 237(a)(2)(E)(i).

We will add article links to this section as we continue to update the website.

In Matter of Mendoza-Osorio, 26 I&N Dec. 703 (BIA 2016) [PDF version], the Board held that a statute that requires knowingly acting in a manner likely to be injurious to the physical, mental, or moral welfare of a child is categorically a “crime of child abuse, child neglect, or child abandonment.” Please see our full article to learn more [see article].

In Matter of H. Estrada, 26 I&N Dec. 749 (BIA 2016) [PDF version], the Board held that the circumstance-specific approach should be employed in order to determine the relationship between an abuser and victim for purpose of determining whether a crime of violence is of a domestic nature. However, the categorical approach applies to determining whether the conviction is for a crime of violence. Please see our full article to learn more about this precedent [see article].

ii. Violator of protection orders

Section 237(a)(2)(E)(ii) contains the deportability provision for those who violate protection orders. The statute renders removable “[a]ny alien who at any time after admission is enjoined under a protection order issued by a court and whom the court determines has engaged in conduct that violates the portion of the protection order that involves…” one of the following forms of conduct (quoted):

  • protection against credible threats of violence,
  • repeated harassment, or
  • bodily injury to the person or persons for whom the protection order was issued.

The statute then defines the term “protection order.” Here, a protection order “means any injunction issued for the purpose of preventing violent or threatening acts of domestic violence, including temporary or final orders issued by civil or criminal courts (other than support or custody orders or provisions) whether obtained by filing any independent action or as a pendite lite order in another proceedings.”

Interestingly, unlike most deportability provisions covered in section 237(a)(2), no conviction is required in order for an alien to be found to be removable for violating a protection order. The only requirement is that a court determines that the alien violated a qualifying protection order as it pertains to protection against credible threats of violence, repeated harassment, or bodily injury.

In Matter of Obshtako, 27 I&N Dec. 173 (BIA 2017) [PDF version], the Board held that adjudicators are not governed by the categorical approach when determining if an alien violated a protection order. Accordingly, adjudicators “should consider the probative and reliable evidence regarding what a State court has determined about the alien's violation.” This applies even if the alien was convicted of violating an order of protection. You may read more about the decision in our full article [see article].

F. Trafficking

Section 237(a)(2)(F) renders deportable any alien described in the inadmissibility provision found in section 212(a)(2)(H).

Section 212(a)(2)(H) contains three subclauses.

First, section 212(a)(2)(H)(i) renders inadmissible, and removable under section 237(a)(2)(F), “[a]ny alien who commits or conspires to commit human trafficking offenses in the United States or outside the United States…” This provision covers aliens who commit any human trafficking offenses inside or outside the United States.

Additionally, an alien for whom “the Secretary of Homeland Security, the Secretary of State, or the Attorney General knows or has reason to believe is or has been a knowing aider, abettor, assister, conspirator, or colluder with such a trafficker in severe forms of trafficking in persons, as defined in [22 U.S.C. 7102]…” is removable.

The term “severe forms of trafficking in persons,” and the pertinent term “sex trafficking,” are found at 22 U.S.C. 7102(9) and (10):

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No conviction is required for an alien to be inadmissible under section 212(a)(2)(H)(i)

Section 212(a)(2)(H)(ii) renders inadmissible certain beneficiaries of trafficking. Any alien for whom the consular officer or Secretary of Homeland Security “knows or has reason to believe is the spouse, son, or daughter of an alien inadmissible in [section 212(a)(2)(H)(i)], [and] has, within the previous five years, obtained any financial or other benefit from the illicit activity of the alien, and knew or reasonably should have known that the financial or other benefit was the product of such illicit activity…”

In order to be covered by section 212(a)(2)(H)(ii), an alien must be the spouse, son, or daughter of a trafficker described in section 212(a)(2)(H)(i), must have received a specified benefit from the trafficking within the previous five years, and must have known or reasonably known that the benefit was the product of human trafficking. However, section 212(a)(2)(H)(ii) does not apply to a son or daughter of a human trafficker who was a child at the time he or she received the benefit(s) in question.

Conclusion

Section 237(a)(2) of the INA includes many provisions providing for the deportability of those with certain criminal convictions or for related activities. If an alien is charged with removability for any reason, he or she should consult with an experienced immigration attorney immediately for guidance on how to contest the charges or whether there exist any avenues for relief from removal or deportation.

Please see our article on inadmissibility on criminal or related grounds to learn about how certain criminal activities may render an individual inadmissible to the United States [see article].