Criminal Grounds of Inadmissibility
Under the present immigration law, the following criminal and related offenses are grounds for inadmissibility if the alien ever leaves the US and attempts to reenter, or enters the U.S. without being inspected and admitted, or is applying for adjustment of status to obtain a green card:
- Conviction for or admission to having committed, or admission to committing acts that constitute the essential elements of a crime involving moral turpitude at any time. INA § 212(a)(2)(A)(i)(I) [8 U.S.C. § 1182(a)(2)(A)(i)(I). Note that 8 U.S.C. § 1182 is the parallel cite to INA § 212]. The sentence imposed is irrelevant. There are two exceptions when this ground does not apply: (a) petty offense exception: A single offense where the maximum penalty possible is a year or less and the actual sentence was 6 months or less (a suspended sentence counts); (b) youth offense exception: A single crime committed while under 18 years of age, where more than 5 years have passed since the offense or release from jail.
- Multiple convictions for any kind of crime. Two or more crimes where the aggregate sentences imposed were 5 years or more. INA § 212(a)(2)(B). Does not require a crime involving moral turpitude; any crime will suffice. Concurrent sentences from multiple counts in a single trial are treated as a single sentence and do not aggregate. Matter of Fernandez, 14 I&N Dec. 24 (BIA 1972).
- Conviction for, or admission to having committed, or admission to committing acts that constitute the essential elements of a violation of a controlled substance law or regulation. INA § 212(a)(2)(A)(i)(II). This may include drug paraphernalia.
- Drug trafficking. INA § 212(a)(2)(C). Requires consular or DHS official to know or have reason to believe the alien is or has been an illicit trafficker or has been a knowing assister, abettor, conspirator, or colluder in illicit trafficking. No conviction is required. Courts have held that a “reason to believe” must be based on “substantial and probative evidence.” See Alarcon-Serrano v. INS, 220 F.3d 1116, 1119 (9th Cir. 2000).
- Drug abuse or addiction. INA § 212(a)(1)(A)(iv). No conviction is required. “Drug abuser” and “addict” are defined in Public Health Service regulations, 42 C.F.R. §§ 34.2-34.4.
- Prostitution and commercialized vice. INA § 212(a)(2)(D). No conviction is required. Includes—
- Aliens coming to engage in prostitution or who have engaged in prostitution anywhere in the past 10 years. INA § 212(a)(2)(D)(i).
- Aliens who procure or attempt to procure prostitutes or did so or received proceeds from prostitution in the past 10 years. INA § 212(a)(2)(D)(ii).
- Aliens coming to engage in other unlawful commercialized vice. INA § 212(a)(2)(D)(iii).
- Involvement in serious criminal activity and assertion of diplomatic immunity from prosecution. INA § 212(a)(2)(E). No conviction is necessary.
- False claim to be a U.S. citizen. INA § 212(a)(6)(C)(ii). No conviction is necessary.
- Stowaways. INA § 212(a)(6)(D). No conviction is necessary.
- Smuggling. INA § 212(a)(6)(E)(i). This includes involvement in the illegal entry of another alien or any such attempt. No conviction is necessary.
- International child abduction. INA § 212(a)(10)(C). This covers aliens who detain, retain, or withhold custody of a U.S. citizen child outside of the U.S. after entry of a U.S. court order granting custody of the child to another. However, this inadmissibility ground does not apply if the child is held in a country that is a party to the Hague Convention on the Civil Aspects of Child Abduction.
- Voting unlawfully in violation of federal, state, or local laws. INA § 212(a)(10)(D). No conviction is necessary.
- Tax avoidance. INA § 212(a)(10)(E). Applies to any alien who is a former U.S. citizen who renounced that citizenship to avoid federal taxes. No conviction is necessary.
