U.S. law lists who is “inadmissible” and who is “deportable.” No one should want to fit either list. The two lists are similar, but not the same. “Inadmissibility grounds,” which generally are broader and thus more exclusive, apply to people who seek to enter the U.S. from outside, who have entered the U.S. illegally, or who seek to convert to permanent residence within the U.S. “Deportability grounds” apply to people who have already been admitted in the U.S. and may be required to leave. There are different types of waivers available to many of the grounds, under very specific rules and procedures. Quite a few paths to permanent residence allow exceptions to inadmissibility grounds.
Consular officers apply only inadmissibility rules, and their decisions on admissibility, though subject to input through a State Department “advisory opinion,” are not reviewable by a court. Applications for waivers of inadmissibility arising from a visa application are forwarded to USCIS-the immigration service (“USCIS”), usually at one of its overseas offices for adjudication. Within the U.S., USCIS officers may apply inadmissibility or deportability grounds, depending on the situation. With a few important exceptions, their decisions concerning both lists are reviewable in Immigration Court in unified “removal proceedings,” with opportunity for administrative and sometimes federal court appeal.
Whether someone is removable is an extremely complex subject, and how to avoid removal involves a complex procedure. Baker Donelson’s immigration team is very familiar with those complexities, and we can help in all aspects of dealing with removal grounds and waivers of them.
Not surprisingly, the question of exactly who is inadmissible or deportable has been the subject of ever-changing statutes, regulations, local interpretation and practice, and countless administrative and federal court decisions. We cannot attempt to summarize the immense volume of authority on these issues on a web page, and an alien facing removal issues should seek help from an experienced immigration lawyer anyway. A detailed side-by-side comparative analysis of inadmissibility and removal grounds appears in Immigration Practice, the book written by the chairman of Baker Donelson’s Immigration Group, Robert C. Divine.
Nevertheless, we provide an extremely generalized listing of the types of conditions conduct that can lead to inadmissibility or removal, without distinguishing here which list is implicated by each (because it would be too complicated) and without discussing the many waivers available.
- Medical grounds: communicable disease, physical or mental disorder with behavior posing a threat, drug abuser or addict, and lack of vaccines. Importantly, serious medical findings can arise from arrests or convictions for driving under the influence of alcohol or other drugs.
- Criminal grounds: crimes of moral turpitude, multiple convictions, controlled substance violations, reasonable government belief of controlled substance trafficking, aggravated felonies (a brutally expansive concept, including crimes of violence, theft offenses and 19 other offenses, which can even arise from state misdemeanor prosecutions), firearms offenses, prostitution, commercialized vice, and domestic crimes (including even violating a protection order). Naturally, criminal grounds have very serious immigration consequences, and immigration lawyers work with criminal defense lawyers to avoid or reduce those consequences in dealing with criminal charges.
- National Security and Terrorism: Inadmissibility can result even from the government’s “reason to believe” the alien may engage in unlawful or dangerous conduct, and even contributions to an organization not known by the alien to be a terrorist organization can lead to deportability.
- Public Charge: For family-based cases, this requires the I-864 Affidavit of Support. For others, financial support without need for unlawful employment must be shown, and sometimes a Form I-134 is used. In a very rare case, someone who receives certain types of means-tested public benefits and has failed to repay them upon demand and judgment within 5 years after admission (usually as a permanent resident) can be deportable.
- Health Care Workers: Certain non-physician health care workers must have a special certificate to be admissible.
- Immigration Violators: An alien who has entered without inspection, failed to attend immigration hearings, been removed from the U.S. (or left after an order of removal was entered), or was “unlawfully present” in the U.S. for more than 180 days (this is the ground that makes the infamous “Section 245(i)” so important), may be inadmissible for many years after departure from the U.S. An alien is deportable if he was actually inadmissible when entering, is present in violation of law, or has violated or failed to maintain nonimmigrant status.
- Misrepresentation and Non-registration: Misrepresentation in visa and immigration matters is a common and permanent ground of inadmissibility (and, in effect, deportability), though waiver is available to some. Document fraud is increasingly serious, now that USCIS has settled a class action lawsuit against certain enforcement which now can resume. False claim to citizenship in any situation (entry, voting) is not subject to immigrant waiver. A finding of having entered a sham marriage results in permanent, unwaivable bar to any immigrant petition approval. Failure to register a new address with USCIS within 30 days of an address change (through Form AR-11 or just about any other USCIS filing) has been only sporadically invoked for deportation, but after September 11, 2001, should be avoided with care. Failure to register as a “foreign agent” seeking to influence the U.S. government is deportable. Misrepresentation can result in expedited removal (no hearing) at the border or port. Many of these violations are also serious criminal offenses.
- Stowaways: Someone who arrives via a vessel or aircraft without the master’s consent is subject to expedited removal (no hearing).
- Alien smuggling: Encouraging or assisting an alien unlawfully to enter the U.S. is on both lists, with limited exceptions for smuggling only one’s immediate family.
- Documentation Deficiencies: Aliens lacking passport, visa, or other required documentation are inadmissible, and subject to expedited removal (no hearing), but there can be waivers.
- Avoiding Military Service: Military deserters and draft evaders are inadmissible (with important exceptions), and a conviction for failing to register for the draft (see www.sss.gov/inslink.htm to register) is deportable. Nonimmigrants are exempt from registration requirements.
- Miscellaneous: polygamists, guardian accompanying inadmissible alien, child abductors, people subject to J-1 home residency rule, and “confiscators” of a U.S. national’s property, F-1 student visa abusers, people who have renounced citizenship to avoid taxes, persons who trade with embargoed countries (Iran, Sudan), and foreign officials responsible for violations of religious freedom are inadmissible. Aliens whose marriage-based conditional permanent residence was terminated are deportable.
Waivers of removal grounds can be available in certain situations that are too complex to describe in detail here. The most common waivers include:
- Nonimmigrants: almost any ground can be waived temporarily for a nonimmigrant through applying for a visa or by filing Form I-192 at a port of entry.
- Returning residents: Waiver of passport and “visa” (permanent resident card) requirement through Form I-193.
- Immigration violators: Waiver of the bar on reentry (technically, permission to reenter early) through Form I-212 or I-601 (or both).
- Refugees: special waivers of certain grounds, through Form I-602.
- J-1 home residency requirement: waiver through Form I-612, preceded by other steps.
- Most other waivers: Particularly medical (including HIV), misrepresentation, and criminal waivers, through Form I-601.
- Cancellation of removal: Only in the context of removal proceedings, an alien who has been present with good moral character for 7 or 10 years and, if not a permanent resident, has a U.S. relative who would suffer “exceptional and extremely unusual hardship” may request permanent residence instead of removal.
With so much at stake, waivers should be pursued with the help of an immigration lawyer.
Baker Donelson’s Immigration Group uses its detailed knowledge of the detailed rules and interpretations about removal grounds in order to counsel clients how to avoid inadmissibility and deportability in the first place. This is particularly true concerning the avoidance of key periods of “unlawful presence” that trigger bars on reentry following departure, even for an immigrant visa interview. We work with criminal defense counsel (both within and outside our firm) to try to resolve the criminal proceedings in a way that reduces the adverse immigration consequences. We help clients demonstrate how they are not removable, or how they are eligible for a waiver, in whatever context the issue arises, whether a consular visa application, a border or port inspection, or Immigration Court removal proceedings.
We appear in Immigration Courts nationally, the Board of Immigration Appeals, and federal courts. We have offices near, and lawyers available to appear regularly, in the Immigration Courts in Arlington, Virginia (D.C. area), Atlanta, Georgia; Memphis, Tennessee, and New Orleans, Louisiana. We are experienced in federal court appeals of immigration cases and have lawyers admitted to practice in a significant number of federal courts in the United States.
Consult with us for assistance with a case.