An Overview of the Criminal Grounds of Inadmissibility and Deportability

I recently analyzed the removal process, from border and port encounters and ICE investigations through the federal court appeals process. As I alluded to therein, under the Immigration and Nationality Act (INA), certain crimes render aliens — even lawful permanent residents, i.e., “green card holders” — removable from the United States.

The INA contains separate grounds of inadmissibility and deportability for aliens who have committed criminal offenses (here and abroad), the former applying to aliens who have not been admitted to the United States and the latter applying to those who have been lawfully admitted but are removable on criminal grounds. Here’s a (rather in-depth) overview.

The Criminal Grounds of Inadmissibility

The criminal grounds of inadmissibility are set forth in various paragraphs, subparagraphs, clauses, and even subclauses of section 212(a)(2) of the INA.

First, under section 212(a)(2)(A)(i)(I), “any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime” is inadmissible.

Note that inadmissibility under this provision does not require a conviction; rather, pursuant to statute, an “admission” to a “crime involving moral turpitude” (CIMT) is sufficient.

That said, the Board of Immigration Appeals (BIA) has held that, to constitute a valid admission to a CIMT absent a conviction, the alien must be presented with the statute in question from the jurisdiction where the offense is alleged to have been committed; to have that statute explained in plain language; and to admit to the key elements of that offense.

In general, as the BIA has explained:

Moral turpitude is a nebulous concept, which refers generally to conduct that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed between man and man, either one’s fellow man or society in general.

Definitions like the foregoing are why I joke that, as an immigration judge, I put on an 18th century outfit to apply 19th century concepts to a 21st century world.

But I digress. Pursuant to case law, for a crime to be a CIMT, it must have “two essential elements: reprehensible conduct and a culpable mental state”.

Crimes in which the mens rea is negligence or less generally do not constitute CIMTs because such offenses “must involve both reprehensible conduct and some degree of scienter, whether specific intent, deliberateness, willfulness, or recklessness”.

The Supreme Court has concluded, for example, that “Fraud has consistently been regarded as such a contaminating component in any crime that American courts have, without exception, included such crimes within the scope of moral turpitude.”

Similarly, as per the BIA:

A theft offense is a crime involving moral turpitude if it involves a taking or exercise of control over another’s property without consent and with an intent to deprive the owner of his property either permanently or under circumstances where the owner’s property rights are substantially eroded.

“Burglary of a dwelling” has also been found to be a CIMT, even if the owner is not present. Sex offenses will also generally constitute crimes involving moral turpitude.

There are exceptions to inadmissibility under this ground for both age and recency.

Section 212(a)(2)(A)(ii)(I) of the INA provides that an alien is not inadmissible based upon a single CIMT if:

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 a visa or other documentation and the date of application for admission to the United States.

And, under subclause (II) therein, a single CIMT will not bar an alien from admission if:

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, if the alien was convicted of such crime, 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).

Finally, there is a waiver for this ground of inadmissibility at section 212(h) of the INA.

Section 212(a)(2)(A)(i)(II) of the INA renders an applicant for admission inadmissible if the alien has been:

convicted of, or … admits having committed, or … admits committing acts which constitute the essential elements 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 section 802 of title 21).

Again, no conviction is required for a finding of inadmissibility on this ground, and as with a CIMT, there is a waiver available under section 212(h) of the INA for “a single offense” for a crime under this provision involving “simple possession of 30 grams or less of marijuana”.

Pursuant to section 212(a)(2)(B) of the INA, “the five-year rule”, an applicant for admission is inadmissible if the alien has been:

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 were 5 years or more.

Traffickers in controlled substances and other listed substances and chemicals (as defined in 21 U.S.C. § 802) are inadmissible under section 212(a)(2)(C)(i) of the INA, as are their spouses and adult children (under section 212(a)(2)(C)(ii) of the INA) if, “within the previous 5 years”, they “obtained any financial or other benefit from the illicit activity of” their inadmissible spouse or parent “and knew or reasonably should have known that the financial or other benefit was the product of such illicit activity”.

Section 212(a)(2)(D)(i) of the INA renders inadmissible any applicant for admission who:

(i) is coming to the United States solely, principally, or incidentally to engage in prostitution, or has engaged in prostitution within 10 years of the date of application for a visa, admission, or adjustment of status,

(ii) directly or indirectly procures or attempts to procure, or (within 10 years of the date of 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 such 10-year period) received, in whole or in part, the proceeds of prostitution, or

(iii) is coming to the United States to engage in any other unlawful commercialized vice, whether or not related to prostitution.

Aliens who have asserted immunity from prosecution for a “serious criminal offense” as defined in section 101(h) of the INA, and who have departed from the United States and haven’t subsequently “submitted fully to the jurisdiction of the court in the United States having jurisdiction with respect to that offense” are inadmissible under section 212(a)(2)(E) of the INA.

Under section 212(a)(2)(G) of the INA: “Any alien 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 in section 6402 of title 22, is inadmissible.”

The referenced provision, at 22 U.S.C. § 6402(13), defines “particularly severe violations of religious freedom”, as:

systematic, ongoing, egregious violations of religious freedom, including violations such as — (A) torture or cruel, inhuman, or degrading treatment or punishment; (B) prolonged detention without charges; (C) causing the disappearance of persons by the abduction or clandestine detention of those persons; or (D) other flagrant denial of the right to life, liberty, or the security of persons.

“Significant traffickers in persons”, aliens who commit or conspire to commit “human trafficking offenses in the United States or outside the United States”, as well as an alien whom federal government officials know or have reason “to believe is or has been a knowing aider, abettor, assister, conspirator, or colluder with such a trafficker have engaged in severe forms of trafficking in persons”, as defined in 22 U.S.C. § 7102(h), are inadmissible under section 212(a)(2)(H)(i) of the INA.

Similarly, “any alien who the consular officer or the Attorney General knows or has reason to believe is the spouse, son, or daughter of an alien inadmissible under” section 212(a)(2)(H)(i) of the INA”, and who “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 inadmissible”, with an exception for minor children of such an alien.

Finally, under section 212(a)(2)(I) of the INA:

Any alien- (i) who a consular officer or the Attorney General knows, or has reason to believe, has engaged, is engaging, or seeks to enter the United States to engage, in an offense which is described in section 1956 or 1957 of title 18 (relating to laundering of monetary instruments); or (ii) who a consular officer or the Attorney General knows is, or has been, a knowing aider, abettor, assister, conspirator, or colluder with others in an offense which is described in such section; is inadmissible.

The Criminal Grounds of Deportability

Section 237(a)(2) of INA contains separate grounds of deportability for aliens who have been admitted to the United States, but who are removable due to criminal activity. It largely overlaps with the criminal grounds of inadmissibility, with some notable exceptions.

Under section 237(a)(2)(A)(i) of the INA, aliens convicted of CIMTs for which a sentence of a year or longer may be imposed committed within five years of admission are deportable.

In that vein, under section 237(a)(2)(A)(ii) of the INA:

Any 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, is deportable.

The “aggravated felony” ground of deportation in section 237(a)(2)(A)(iii) of the INA renders deportable any alien who has been admitted to the United States and who has been convicted of any of the more than 30 aggravated felony offenses defined in section 101(a)(43) of the INA.

Those offenses include: “murder, rape, or sexual abuse of a minor”; “illicit trafficking in a controlled substance (as defined in section 802 of title 21), including a drug trafficking crime (as defined in section 924(c) of title 18)”; “illicit trafficking in firearms or destructive devices … or in explosive materials” as defined under federal criminal statutes; crimes of violence as defined in 18 U.S.C. § 16 “for which a term of imprisonment of” a year or more was imposed; theft, receipt of stolen property, or burglary offenses for which a sentence of a year or more was imposed; and child pornography offenses as defined in specified federal criminal statutes.

Lawfully admitted aliens convicted of “high speed flight from an immigration checkpoint” under 18 U.S.C. § 758 are also deportable, as are those who have been convicted under 18 U.S.C. § 2250 for failing to register as sex offenders.

Section 237(a)(2)(B)(i) of the INA renders deportable any 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 section 802 of title 21), other than a single offense involving possession for one’s own use of 30 grams or less of marijuana.

Also deportable, under section 237(a)(2)(B)(ii) of the INA, is “any alien who is, or at any time after admission has been, a drug abuser or addict”, even absent a conviction.

In its 1958 decision in Matter of F-S-C-, however, the BIA considered similar language in a predecessor statute to section 237(a)(2)(B)(ii) of the INA and distinguished between “addicts” as used in that provision from mere “users” — the latter of which, the BIA concluded, were not deportable.

Likely the biggest discrepancy between the criminal grounds of inadmissibility and deportability has to do with gun crimes.

They usually won’t render an otherwise admissible alien removable, but pursuant to section 237(a)(2)(C) of the INA, admitted aliens are deportable if they’ve been 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 section 921(a) of title 18) in violation of any law.

With respect to firearms, note that section 922(g)(5) of title 18 states:

It shall be unlawful for any person- who, being an alien- (A) is illegally or unlawfully in the United States; or (B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa … to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

The exception in 18 U.S.C. § 922(y)(2) relates to nonimmigrant aliens “admitted to the United States for lawful hunting or sporting purposes or … in possession of a hunting license or permit lawfully issued in the United States”, diplomats and other lawfully admitted foreign government officials, and certain foreign law enforcement officers.

All other aliens, aside from green card holders, are barred by law from possessing or using firearms in this country.

To implement this provision, the Bureau of Alcohol, Tobacco, and Firearms (ATF) issued a regulation at 27 C.F.R. § 478.1, et seq., defining “illegal alien” and other vague terms in section 922 of title 18.

That ATF regulation, however, specifically excludes from the definition of “illegal alien” (inter alia) aliens who have been paroled into the United States under section 212(d)(5)(A) of the INA, even though: (1) paroled aliens are, by definition, not admissible to the United States, either as immigrants or nonimmigrants; (2) most parolees haven’t been vetted for criminality through the consular vetting process; and (3), by my calculations, more than 2.86 million such parolees entered under the Biden administration.

That, as I have argued, has created a massive “gun loophole” and a significant vulnerability Congress never intended.

Returning to the criminal grounds of deportability, section 237(a)(2)(D) of the INA renders deportable certain aliens who have been convicted of a national security offense, including for espionage, sabotage, and “treason and sedition” for which a sentence of five years or more has imposed; as well as those who have made threats against the president, and those who have made a military expedition against a “friendly nation”; and violators of the Military Selective Service Act.

Aliens who have violated presidential travel orders and those who imported any alien “for the purpose of prostitution, or for any other immoral purpose” under 8 U.S.C. § 1328 are also subject to deportation under section 237(a)(2)(D)(iv) of the INA.

Finally, lawfully admitted aliens who have been convicted of crimes of “domestic violence”, “stalking”, violations of protection orders, and certain crimes against children are subject to deportation under section 237(a)(2)(E) of the INA, and those who have been convicted of any offense described in the “human trafficking” ground of inadmissibility at section 212(a)(2)(H) of the INA are also deportable under section 237(a)(2)(F) of the INA.

Comprehensive, but Not Exhaustive

This list should be considered comprehensive, but not exhaustive; some crimes listed may not render you removable (depending on the facts and the conviction), while variations of offenses not listed may get you kicked out. To be safe, talk to an attorney, or better yet — don’t break the law, especially if you are a visitor to this country.