Inadmissibility for Criminal and Related Grounds

Inadmissibility under section 212, myattorneyusa.com

 

Introduction to Inadmissibility for Criminal and Related Grounds

The Immigration and Nationality Act contains several inadmissibility grounds for noncitizens who commit certain criminal and related offenses. In this article, I will list the criminal and related inadmissibility grounds found in section 212(a)(2) of the Immigration and Nationality Act (INA) [codified in 8 U.S.C. 1182(a)(2)] [PDF version] and explain the rules, exceptions, and waivers for each category of inadmissibility. The length of time that each ground attaches for depends on the inadmissibility ground. Certain inadmissibility grounds attach for life while others only attach for a certain time. Whether a waiver of inadmissibility will be available will depend upon the underlying inadmissibility ground, the immigration benefit sought, and other case-by-case discretionary factors.

List: Inadmissibility for Criminal and Related Grounds

Inadmissibility grounds caused by criminal activity are set forth section 212(a)(2) of the INA. There are several classes of criminal and related offenses in 212(a)(2) that will trigger inadmissibility for a noncitizen.

A. General Inadmissibility Grounds

The statute holds that a noncitizen is inadmissible who is convicted of, who admits to having committed, or who admits committing acts that constitute essential elements of:

1. a crime involving moral turpitude (CIMT) [other than a purely political offense] or an attempt or conspiracy to commit such a crime, or
2. 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.1

There are limited exceptions available for CIMTs that we will discuss in the next section.

B. Multiple Criminal Convictions

The statute holds as inadmissible a noncitizen who:

1. has been convicted of 2 or more offenses (other than purely political offenses) for which the aggregate sentences of confinement were at least 5 years (it does not matter whether the convictions were from a single trial or scheme).2

C. Controlled Substance Traffickers

The statute holds as inadmissible any noncitizen who the Attorney General knows or has reason to believe:

1. is or has been an illicit trafficker in any controlled substance or chemical, or is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking of any such controlled substance or chemical, or endeavored to do so; or
2. has, within the previous 5 years, knowingly benefited from a parent's or spouse's illicit trafficking in controlled substances or chemicals.3

D. Prostitution and Commercialized Vice

The statute holds as inadmissible any noncitizen who:

1. is coming to the United States to engage in prostitution, or has engaged in prostitution within 10 years of the date of the application for a visa, admission, or adjustment of status;
2. directly or indirectly attempts to procure, or (within 10 years of the date of the application for a visa, admission, or adjustment of status) procured or attempted to procure or to import, prostitutes or persons for the purpose of prostitution, or receives or (within 10 years) received proceeds from prostitution; or
3. is coming to the United States to engage in any other unlawful commercialized vice.4

E. Certain Aliens Involved in Serious Criminal Activity who Have Asserted Immunity from Prosecution

The statute holds as inadmissible any noncitizen:

1. who has committed a serious criminal offense as defined by section 101(h)5 of the INA,
2. for whom immunity from criminal jurisdiction with respect to that offense,
3. who as a consequence of the offense and exercise of immunity has departed from the United States, and
4. who has not subsequently submitted fully to the jurisdiction of the court in the United States that has jurisdiction with respect to the offense.6

F. Waivers for (E)

The statute authorizes limited waivers for section (E). We will discuss these in the waivers section of this article.7

G. Foreign Government Officials who have Committed Particularly Serious Violations of Religious Freedom

The statute holds as inadmissible any noncitizen who:

1. while serving as a foreign government official, was responsible for particularly serious violations of religious freedom.8

H. Significant Traffickers in Persons

The statute holds as inadmissible any notcitizen:

1. who commits or conspires to commit human trafficking offenses inside or outside of the United States, or who there is reason to believe has been a knowing aider, abettor, assister, conspirator, or colluder with such a trafficker in severe forms of trafficking in persons;9 or
2. within the previous 5 years, knowingly obtained any financial or other benefit from a parent's or spouse's illicit trafficking activities (unless the noncitizen was a minor son or daughter at the time the benefit was received).10

I. Money Laundering

The statute holds as inadmissible any noncitizen:

1. who a consular officer or the Attorney Generals knows or has reason to believe has, is, or seeks to enter the United States to engage in money laundering;11 or
2. who is known to be or known to have been a knowing aider, abettor, assister, conspirator, or colluder with others described in (1).12

Duration of and Details about Each Inadmissibility Ground

The various grounds of inadmissibility for criminal and related activity have varying terms of inadmissibility, exceptions from inadmissibility, and waivers of inadmissibility. We will examine each in the following sections.

A(1). Crimes of Moral Turpitude: Exceptions and Waivers

If a noncitizen is convicted of a CIMT or admits to having committed a crime that contains essential elements of a CIMT, inadmissibility will attach for life. However, there are limited scenarios in which such a noncitizen will not have the inadmissibility attach. Furthermore, under certain circumstances, the noncitizen may be able to obtain a waiver of inadmissibility.

Exceptions

Firstly, noncitizens who commit or admit to having committed a CIMT while under 18 years of age are not inadmissible if the crime was committed more than 5 years before applying for admission to the United States.13 Furthermore, the noncitizen must have been released from any confinement imposed for the crime.

Secondly, there is a “petty offense” exception to CIMT-related inadmissibility. If the maximum possible penalty for the CIMT does not exceed imprisonment for 1 year, and if the noncitizen was convicted, was not sentenced to imprisonment in excess of 6 months, the noncitizen will not be inadmissible on account of the CIMT.14

Thirdly, there is an exception for “purely political offenses.” If what would otherwise be a CIMT is found to be a “purely political offense,” it will not cause inadmissibility.15 “Purely political offense” is defined in 22 CFR 40.21(a) [PDF version] and further explained in 9 FAM 40.21(A) [PDF version] N10 [the Foreign Affairs Manual] to mean “offenses that resulted in convictions obviously based on fabricated charges or predicated upon repressive measures against racial, religious, or political minorities.” Since this formulation emanates from the legislative history of the 1952 version of the INA, it therefore “reflects to some extent the original Congressional intent in adopting the political offense exemption.” The determination whether the offense was purely political lies with the adjudicator of facts in the given case. In determining whether an offense is a “purely political offense,” adjudicators will consider if:

1. The noncitizen was not guilty of the charges;
2. Nevertheless, was wrongly prosecuted because of political repression against racial, religious, or political minorities.
3. The punishment imposed was cruel, unusual and clearly disproportionate to the offense.

It is important to note that DOS policy makes it clear that in the “absence of evidence of political motivation for a wrongful prosecution,” DOS “cannot look behind a conviction to determine whether the applicant was guilty of the [purely political] offense for purposes of determining 212(a)(2)(A)(i)(I) inadmissibility.” However, DOS may take into account the evidence of a wrongful conviction for purposes of the inadmissibility waiver considerations. However, the mere fact that an alien is or was a member of a racial, religious, or political minority “shall not be considered as sufficient in itself to warrant a conclusion that the crime for which the alien was convicted was purely a political offense.” Some crimes are inheritably political in nature. For instance, crimes of espionage, treason and sedition are “pure” political offenses. Convictions for these crimes will generally be eligible for the political offense exemption.

A(2). Offenses Involving Controlled Substances

Any noncitizen convicted of a violation or of 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 [PDF version]) is inadmissible to the United States for life.

B. Multiple Criminal Convictions

When a noncitizen was convicted more than one time for criminal offenses regardless of whether multiple charges arise out of the same incident, he or she will be inadmissible of the aggregate term of confinement is 5 years or more. It is important to note that this inadmissibility ground requires multiple convictions. If a noncitizen is not actually convicted of multiple crimes, or if charges are dismissed, this ground of inadmissibility shall not attach.

This inadmissibility ground contains a “purely political offense” exception. Please read the section on CIMT exceptions and waivers to learn about the purely political offense exception.

C. Controlled substance traffickers

We have already seen that a conviction for a crime involving controlled substance will make the noncitizen inadmissible for life. However, for the controlled substance trafficking inadmissibility ground, a conviction is not necessary to trigger inadmissibility. Rather, any noncitizen who “the consular officer or the Attorney General knows or has reason to believe” was at any time in his or her life an illicit trafficker in any controlled substance or in any listed chemical listed in 21 U.S.C. 802 becomes inadmissible for life. These harsh consequences also apply to a noncitizen who the fact-finder knows or has reason to believe is or was at any time an “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.

The second provision in section 212(a)(2)(C) for the spouse, son, or daughter of a controlled substance trafficker who knowingly benefits from the illicit activity only renders the noncitizen spouse, son, or daughter inadmissible for 5 years.

D. Prostitution and Commercialized Vice

U.S. law prohibits prostitution. Hence, any noncitizen who is coming to the United States to engage in prostitution, even if such intention is incidental to otherwise lawful activity, becomes is rendered inadmissible. If a noncitizen engages in prostitution, he or she will be inadmissible for 10 years. This ten-year period of inadmissibility also bars adjustment of status from inside the United States while it is in place. A noncitizen who procured or attempted to procure or import prostitutes or persons for the purpose of prostitution or obtained any proceeds of prostitution activity will also be inadmissible for 10 years.

Finally, the statute contains a “catch-all” provision for those who are entering the United States to engage in commercialized vice, regardless of whether the commercialized vice has anything to do with prostitution.

E. Certain Aliens Involved in Serious Criminal Activity who Have Asserted Immunity from Prosecution

This inadmissibility ground pertains to a noncitizen who committed a serious criminal offense while in the United States and then obtained immunity from prosecution and departed the United States without ever submitting fully to the court in the United States with jurisdiction over the offense.

The term serious criminal activity is defined in section 101 of the INA [as codified in 8 U.S.C 1101(h)] [PDF version]. The statute defines “serious criminal activity” as:

1. Any felony;
2. Any crime of violence (as defined in 18 U.S.C. 16) [PDF version];
3. Any crime of reckless driving while intoxicated or under the influence of alcohol or of prohibited substances if such crime involves personal injury to another.

This inadmissibility ground will generally apply to noncitizens who may assert diplomatic immunity after committing one of the specified offenses.

G. Foreign Government Officials who have Committed Particularly Serious Violations of Religious Freedom

Any noncitizen who, while serving as a foreign government official, was responsible for or directly carried out, at any time, particularly severe violations of religious freedom, as defined 22 U.S.C. 6402 [PDF version], is inadmissible for life.

H. Significant Traffickers in Persons

This section renders any noncitizen who has trafficked in persons or who has conspired to trafficking in persons inside or outside of the United States inadmissible. Just as with the controlled substance trafficking ground, there need not be a conviction for inadmissibility to attach. Furthermore, inadmissibility will attach the same if a finder of fact knows or believes that a noncitizen has been an aider, abettor, assister, conspirator, or colluder with such a trafficker in severe forms of trafficking in persons. Severe forms of trafficking in persons is defined in 22 U.S.C. 7102 [PDF version]. Inadmissibility from trafficking in persons attaches for life.

The noncitizen spouse, son, or daughter of a trafficker described above who knowingly receives a financial benefit from the trafficker's illicit activities will be inadmissible for 5 years. However, if the son or daughter was a minor (under 18 years of age) at the time he or she received the benefit, no inadmissibility shall attach.

I. Money Laundering

Inadmissibility shall attach to a noncitizen whom the consular officer or Attorney General knows or believes to have engaged or is seeking to enter to engage in money laundering, which is described in 18 U.S.C. 1956 [PDF version] and 1957 [PDF version]. This inadmissibility ground does not require a conviction. Furthermore, the same applies to a noncitizen who the finder of fact knows to be or have been a knowing aider, abettor, assister, conspirator, or colluder in one of the above money laundering offenses.

Waivers of Inadmissibility for Inadmissibility for Criminal and Related Grounds

Waivers are available for some of the grounds of inadmissibility that we have discussed in this article. The authority for such forgiveness is found in INA 212(h) [codified as 8 U.S.C. 1182(h)] [PDF version]. The statute authorizes waivers for the following inadmissibility grounds:

CIMTs;
Single possession for personal use of 30 grams or less of marijuana;
Multiple criminal convictions;
Prostitution-related offenses; and
Departure on diplomatic immunity after having engaged in criminal activity.

There is no waiver for any other controlled substance offense besides single possession for personal use of 30 grams or less of marijuana.

The grant of the waiver is a one-time event, and it is predicated upon establishing the different prerequisite factors pertaining to the offense in question. For example, inadmissibility stemming from prostitution offenses can be waived. However, if the offense also involved commercialized vice from the same inadmissibility ground, that cannot be waived. In this situation, the noncitizen would have to demonstrate that he or she is only inadmissible for a waivable offense (prostitution). If the only ground of inadmissibility is prostitution, the noncitizen would be eligible for a waiver so long as immigration officials determine that granting the waiver would not be contrary to the national welfare, safety, or security of the United States, and the noncitizen has been rehabilitated.

In case of any other inadmissibility for criminal activity covered under section 212(h), the statute requires that the noncitizen establish that the criminal activities occurred at least 15 years prior to the noncitizen's application for a visa, admission, or adjustment of status. Furthermore, immigration officials must be satisfied that the admission to the United States of the noncitizen would not be contrary to the national welfare, safety, or security of the United States, and that the noncitizen has been rehabilitated.

The 15-year requirement may be waived in the case of a noncitizen who is the spouse, parent, son, or daughter of a U.S. citizen or a lawful permanent resident (LPR) if he or she can demonstrate that the refusal of his or her admission would cause extreme hardship [see article] to the qualifying relative.

Furthermore, the waiver requirements are much less stringent if the applicant is a noncitizen whose immigrant visa petition was approved under the provisions of the Violence Against Women Act (VAWA) [see article], and the U.S. Government consents to a discretionary waiver of inadmissibility for the noncitizen.

A noncitizen who has been convicted of, or who even if never convicted, has admitted committing acts that constitute murder or criminal acts involving torture, or an attempt or conspiracy to commit murder or a criminal act involving torture is ineligible for a waiver of inadmissibility for activities described in section 212(h).

Furthermore, waivers are not permitted for a noncitizen who has been admitted to the United States as an LPR (as opposed to having adjusted status after having been admitted as a nonimmigrant or paroled) if he or she has been convicted of an aggravated felony [see article] after admission, or if he or she has not resided continuously in the United States for a period of at least 7 years prior to the initiation of removal proceedings.

The statute explicitly prevents courts from reviewing the denial of a waiver of inadmissibility. Instead, the denial of a waiver may be appealed to the Administrative Appeals Office (AAO), which reviews administrative decisions by United States Citizenship and Immigration Services (USCIS).

Conclusion: Inadmissibility for Criminal and Related Grounds

Inadmissibility under section 212(a)(2) is damaging at a minimum, and fatal at worst, for a noncitizen. Whether relief will be available ultimately depends on the crime underlying the inadmissibility ground and other discretionary factors concerning the noncitizen and the specific relief being sought. A noncitizen who is convicted of a crime or otherwise finds him or herself inadmissible should consult with an experienced immigration attorney for an assessment of his or her immigration situation. An experienced immigration attorney will be able to determine what relief may be available. If relief is available, an experienced immigration attorney will be able to help his or her client determine the best path for remedying the inadmissibility.

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  1. INA § 212(a)(2)(A)(i)(I)-(II)
  2. INA § 212(a)(2)(B)
  3. INA § 212(a)(2)(C)(i)-(ii)
  4. INA § 212(a)(2)(D)(i)-(iii)
  5. This includes any felony; any crime of violence (as defined by 18 U.S.C. § 16); or any crime of reckless driving while intoxicated or under the influence of alcohol or of prohibited substances if such crime involves personal injury to another.
  6. INA § 212(a)(2)(E)(i)-(iv)
  7. INA § 212(a)(2)(F)
  8. INA §212(a)(2)(G); “Particularly serious violation of religious freedom” is defined in 22 U.S.C. § 6402
  9. “Severe forms of trafficking in persons” is defined in 22 U.S.C. § 7102
  10. INA § 212(a)(2)(H)(i)-(iii)
  11. Money laundering offenses are described in 18 U.S.C. §§ 1956 and 1957
  12. INA § 212(a)(2)(I)(i)-(ii)
  13. INA § 212(a)(2)(A)(ii)(I)
  14. INA § 212(a)(2)(A)(ii)(II)
  15. INA § 212(a)(2)(A)(i)(I)