Grounds of Deportability

One thing that most people who want to immigrate want to know is what prevents them from immigrating in the first place (inadmissible) and what would things would cause them to no longer be allowed to stay in the United States (deportable). Though for the most part, these two lists are similar, there are some differences that people need to be aware of. This post will focus solely on the Grounds of Deportability, since my last post focused on the Grounds of inadmissability. I also  plan on explaining some of the waivers available to people in a later post, so look out for that one as well. In addition, I know that there is a lot of information in this post, please if you have any questions, please contact me, I am happy to help.

DEPORTABLE

To say that someone is deportable means the immigrant is located in the United States illegally. This is different from being inadmissible since that deals with immigrants who are still outside of the United States. With that said, the grounds that make these immigrants deportable can be found in INA §237. These grounds are:

1.  Inadmissible at Time of Entry or of Adjustment of Status or Violates Status
1. They who have come into the United States illegally and who would have been inadmissible.
2. Their non-immigrant visa has been revoked (due to violations of conditions of entry, violating status, etc) or expired and they have remained in the United States.
3. Their conditional permanent residence has been revoked due to violating conditions of entry.
4. Any immigrant who (prior to the date of entry, at the time of any entry, or within 5 years of the date of any entry) knowingly has encouraged, induced, assisted, abetted, or aided any other immigrant to enter or to try to enter the United States in violation of law.
5. Those who have been admitted through fraud, especially marriage fraud.
2. Criminal Grounds
1. Crimes of Moral Turpitude - One who is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an immigrant provided lawful permanent resident status under §245(j)) after the date of admission, and is convicted of a crime for which a sentence of one year or longer may be imposed
2. Multiple criminal convictions.-Any immigrant 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.
3. Aggravated felony.-Any immigrant who is convicted of an aggravated felony at any time after admission.
4. High Speed Flight.-Any immigrant who is convicted of a violation of section 758 of title 18, United States Code, (relating to high speed flight from an immigration checkpoint).
5. Violation of Controlled Substance Laws - Any conviction relating to illegal drugs except for a single offense involving possession for one's own use of 30 grams or less of marijuana.
6.  Drug Abusers and Addicts.-Any immigrant who is, or at any time after admission has been, a drug abuser or addict.
7. Certain Firearm Offenses.-Any immigrant 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.
8. Miscellaneous Crimes (Including conspiracy or attempt) - Espionage, Sabotage, Treason and Sedition, etc.
9. Domestic Violence, Stalking, or Violation of Protection Order, and Crimes against Children
10. Trafficking - Any immigrant who is involved in any kind of trafficking.
3. Failure to Register and Falsification of Documents
1. Immigrants who do not notify the government upon changing their address.
2. Any immigrants who falsify documents
3. Any immigrant who falsely claims citizenship
4. National Security Grounds
1. Any immigrant who engages in any activity to violate any law of the United States relating to espionage or sabotage or to violate or evade any law prohibiting the export from the United States of goods, technology, or sensitive information; any other criminal activity which endangers public safety or national security, or any activity a purpose of which is the opposition to, or the control or overthrow of, the Government of the United States by force, violence, or other unlawful means.
2. Any immigrant who engages in terrorist activities
3. Foreign Policy - Any immigrant whose presence or activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States.
4. Any immigrant who has participated in Nazi persecution, genocide, or the commission of any act of torture or extrajudicial killing.
5. Any immigrant who has participated in the commission of sever violations of religious freedom.
6. Any immigrant who has engaged in the use or recruitment of child soldiers.
5. Public Charge 
1. Any immigrant who, within five years after the date of entry; has become a public charge from causes not affirmatively shown to have arisen since entry.
6. Unlawful Voters
1. Any immigrant who has voted in violation of any Federal, State, or local constitutional provision, statute, ordinance, or regulation.

Once again, I know this is a pretty exhaustive list, but it is important to know what could prevent someone from staying the United States. In addition, as I said above, I will be doing a post Waivers that can help those that fit into these categories. I hope this helps. If you have any questions, please contact me. This is a very complex system, and everyone deserves the right to be represented from a competent attorney.

Grounds of Inadmissibility

One thing that most people who want to immigrate want to know is what prevents them from immigrating in the first place (inadmissible) and what would things would cause them to no longer be allowed to stay in the United States (deportable). Though for the most part, these two lists are similar, there are some differences that people need to be aware of. This post will focus solely on the Grounds of Inadmissibility, but I plan on writing and posting the Grounds of Deportability this week. I also  plan on explaining some of the waivers available to people in a later post, so look out for that one as well. In addition, I know that there is a lot of information in this post, please if you have any questions, please contact me, I am happy to help.

INADMISSIBLE

To say that someone is inadmissible means that they are not permitted to enter this country legally. With that said, the groups of people that are considered inadmissible are:

1. Non-citizens who entered without inspection;
2. Non-citizens paroled into U.S.; 
3. Non-citizens arriving at border or port of entry;
4. Non-citizens applying for visa or adjustment of status; and
5. Non-citizens applying for certain benefits. 

Out of all these groups of people who are not admissible, probably the most notable one are those who have entered the United States illegally at first, but are not trying to gain lawful status. 

With the understanding of who is inadmissible, the grounds that make them inadmissible are found in the INA §212. These grounds are:

1. Health Grounds 
1. They have a communicable disease of public health significance.
2. They have failed to receive necessary vaccinations against vaccine-preventable diseases.
3. They have or have had a physical or mental disorder with associated harmful behavior or harmful behavior that is likely to reoccur.
4. They are drug abusers or addicts. 
2. Criminal Grounds 
1. Crimes involving "moral turpitude." (See previous post)
2. Violation of any controlled substance law - Any violation of any laws, foreign or domestic, relating to illegal drugs can be a ground of inadmissibility.
3. Multiple Criminal Convictions - Any person convicted of two or more crimes is inadmissible if the person was sentenced to five or more total years in prison (counting the sentences in the aggregate). This applies regardless of whether the crimes involved moral turpitude or the multiple convictions arose from a single trial or scheme of misconduct.
4. Drug trafficking - If any immigration officer "knows or has reason to believe" that a person has been involved in trafficking in controlled substances, that person is inadmissible to the United States. This includes individuals who aid, abet, conspire, or collude with others in illicit drug trafficking.
5. Prostitution - Any person coming to the United States to engage in prostitution, or any person who has engaged in prostitution within ten years of his or her application for a visa, adjustment of status, or entry into the United States, is inadmissible. This section also applies to those who have made a profit from prostitution. 
6. Commercialized Vice - Any person coming to the United States to engage in any unlawful commercialized vice is inadmissible.
7. Commission of a serious crime in the United States where a person has asserted immunity from prosecution - Any person who has committed a serious criminal offense and is granted immunity from criminal prosecution is inadmissible if he or she leaves the United States and fails to return and submit him or herself to the jurisdiction of the federal court overseeing the criminal case.
8. Violations of Religious Freedom - Any person who, while serving as a foreign government official, was responsible for or directly carried out particularly severe violations of religious freedom is inadmissible.
9. Human Trafficking - Any person who commits or conspires to commit human trafficking, or aids, abets, or colludes with an individual who is a trafficker in the United States or outside the United States is inadmissible.
10. Money Laundering - Any person who is engaged, is engaging, or seeks to enter the United States to engage in an offense relating to laundering of financial instruments is inadmissible.
3. National Security Grounds
1. Any person who a Department of State consular officer, DHS immigration officer, or DOJ immigration judge, knows or has reasonable ground to believe that the non-citizen seeks to enter the United States to engage in espionage or sabotage, to attempt to overthrow the U.S. government, or to engage in any unlawful activity that person, is inadmissible.
2. Any person who a Department of State consular officer, DHS immigration officer, or DOJ immigration judge, knows or has reasonable ground to believe that the non-citizen has participated in any terrorist activities or has any association with terrorist organizations, governments or individuals, is inadmissible.
3. Any person who a Department of State consular officer, DHS immigration officer, or DOJ immigration judge, knows or has reasonable ground to believe that the person presents a threat to foreign policy or has membership in any totalitarian party that person may be inadmissible.
4. Any person who has participated in Nazi persecutions or genocide is inadmissible
4. Public Charge
1. A public charge is a person who is primarily dependent on the government for subsistence. Whether or not a person is likely to become a public charge is determined by examining several factors. At a minimum, the factors that must be considered are health, family status, age, assets, employment history, and education. If after considering the totality of the individual’s circumstances, the officer determines that the person is likely to become primarily dependent on the government for subsistence, that person is inadmissible as a public charge.
5. Labor Protection Grounds
1. Employment of the person will not adversely affect the wages and working conditions of U.S. workers similarly employed; and
2. There are not enough U.S. workers willing, qualified, and able to do the same work
6. Fraud or Misrepresentation
1. Any person who seeks admission to the United States, a visa or other immigration travel or entry document, or any immigration benefit by fraud or willfully misrepresenting a material fact is inadmissible.
7. Prior removals or unlawful presence in the U.S.
1. Individuals who are barred from returning to the United States because they have been in the United States for a period in excess of 180 days, during a single stay, and then departed the United States.
2. Individuals who are barred from returning to the United States because they had either been removed (or excluded or deported) from the United States or departed the United States on their own volition while a final order of removal was outstanding.
3. Individuals who were unlawfully in the United States for a total of one year (whether accrued during a single stay or multiple stays) AND then, illegally (without being inspected and admitted or inspected and paroled) reentered the United States.
8. Miscellaneous grounds 
1. Persons who entered the country illegally (without being inspected and admitted or paroled)
2. Persons who failed to attend immigration and/or removal hearings
3. Smugglers
4. Student visa abusers
5. Former U.S. citizens who renounced citizenship to avoid taxation
6. Practicing polygamists
7. Unlawful voters
8. International child abductors and relatives of such abductors

Once again, I know this is a pretty exhaustive list, but it is important to know what would preclude someone from being admitted into the United States. In addition, as I said above, I will be doing posts both on Deportability Grounds as well as Waivers that can help those that fit into these categories. I hope this helps. If you have any questions, please contact me. This is a very complex system, and everyone deserves the right to be represented from a competent attorney.

Crimes Against Moral Turpitude

So in my last post, I mentioned that I would do a more detailed post on Crimes Involving Moral
Turpitude (CIMT). First off, a committing a CIMT is grounds for deportability. This post will describe 1) What is a CIMT?; and 2) When Will a Crime of Moral Turpitude Make Someone Deportable?.

1) What is a CIMT?

Unfortunately, CIMT is not defined within the Immigration and Nationality Act (INA), and is not a something that immigrants will be told that have committed when they are arrested or formally charged. Congress has left it up to the courts to determine its definition and even that has resulted in a comprehensive, agreed upon list. The biggest issue is that each crime is different in each state, resulting in different penalties and different factual scenarios.

In law school, I was taught that many people look at a CIMT as something 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.”​

With that said, many people can, for the most predict what could be considered a CIMT. For example, murder or kidnapping, are crimes that most people can agree on that would shock the public conscience. However, some crimes are not so easily identifiable. For example, any theft crime is considered a CIMT. That can include a $10 shoplifting trip to Walmart. In my last post, I mentioned a client who accidentally walking out of a store without paying for the shoes that she put on her child's feet. That accident, caused her to commit a CIMT.

Now this may seem harsh, but these are the guidelines that the courts have given us. The problem is that depending on the state the crime is committed, it can be difficult to figure out what crimes reach the level of a CIMT. For your benefit here are 6 categories that may be of use to you when trying to figure out if your immigration status is at risk.

1. Crimes Against the Person, such as murder, voluntary or reckless manslaughter, aggravated battery, kidnapping, attempted murder, assault with intent to rob or kill or to commit abortion or rape, domestic violence, stalking, child abuse, child neglect, child abandonment, violation of a protection order, and repeated harassment or bodily injury.
2. Sexual Offenses, such as rape (whether common law or statutory), adultery, bigamy, prostitution, lewdness, sodomy, gross indecency, and possession of child pornography.
3. Crimes Against Property, such as burglary (if the intended offense involves moral turpitude, since unlawful entry and remaining unlawfully on a property by themselves are not CIMTs), and breaking and entering to commit larceny.
4. Theft Offenses, such as trafficking in counterfeit goods and receipt of stolen property, which may be both a CIMT and an aggravated felony.
5. Crimes Against the Government, such as counterfeiting, perjury, willful tax evasion, bribery (or attempted bribery), using the mail to defraud, misprision of a felony, harboring a fugitive, conspiracy to commit an offense against the United States, making false statements to avoid being drafted, and draft evasion
6. Crimes Involving Fraud, whether against government or individuals, except for false statements not amounting to perjury. Examples include forgery, making false statements to obtain a U.S. passport or U.S. naturalized citizenship, a driver's license, or a firearm; passing bad checks; false representation of a Social Security Number; money laundering; and conspiracy to affect a public market in securities.

This is not a complete list (since one does not exist), but this can be useful. This list was obtained at https://www.lawyers.com/legal-info/immigration/deportation/grounds-for-deportation-moral-turpitude.html. 

2. When Will a Crime of Moral Turpitude Make Someone Deportable?.

The I.N.A. makes removable a non-citizen who has been either:

1. convicted of a crime involving moral turpitude (CIMT) that was committed within five years after the date of admission to the U.S. and resulted in a sentence of imprisonment for at least one year, or
2. convicted of two CIMTs not arising out of a single scheme of criminal misconduct, with neither the time of commission of the offense nor the sentence imposed being relevant.

However, a non-citizen who has been convicted of a single misdemeanor that's classified as a petty offense is not removable, so long as the actual sentence that was imposed was six months or less, and the maximum sentence that could have been imposed is no more than one year. For more on this subject see my previous post here.

Well that is about all there is to say on this subject in this forum. I hope this article helps, if you have any more questions or need legal advise please contact me either by email or by phone. I am here to help. This is my passion and I want to help.

Petty Offense Exception

One thing that most people know, but don't understand the gravity of the situation is that when an immigrant comes into the United States on a Visa or Green Card they have harsher restrictions than Americans at least for the first five (5) years. This is the case when an immigrant faces criminal charges while in the United States. According to the United States immigration laws, an immigrant is subject to deportation if within the first five (5) years of them coming to the United States they commit a crime involving moral turpitude. While crimes of moral turpitude (CIMT) will have a separate blog post dedicated to them later on, a quick list of possible CIMT's include:

• murder
• voluntary manslaughter
• involuntary manslaughter, in some cases
• rape
• spousal abuse
• child abuse
• incest
• kidnaping
• robbery
• aggravated assault
• mayhem
• animal fighting
• theft
• fraud, and
• conspiracy, attempt, or acting as an accessory to a crime if that crime involved moral turpitude.

This is not a complete list and in all reality it depends on the state that the crime is committed in and what the consequences for that crime is in that state. Therefore all immigrants should be mindful of the laws in the states that they are in because even the smallest misdemeanor could result in deportation.

However, due to the flexibility each state has to determine the punishments for the crimes committed in that state, Congress has enacted the Petty-Offense Exception to help those immigrants who may have reached a plea-deal with a Prosecutor or who committed however minor of a crime. So what exactly is the Petty Theft Exception? How does one fit under its safety net?

The Petty Offense Exception is an exception to the deportability of immigrants who have committed a CIMT. It allows an immigrant who may have a CIMT, but due to the punishments of that CIMT in the state where the crime occurred, the immigrant will not face deportation. In order to fit into this exception the immigrant must meet these three (3) requirements:

1. s/he has committed only one crime involving moral turpitude; and
2. s/he “was not sentenced to a term of imprisonment in excess of six months (regardless of the extent to which the sentence was ultimately executed)”; and
3. the offense of conviction carries a maximum possible sentence of one year or less.

If these three elements are met then the immigrant is probably safe from deportation. This is something that all immigrants though must be aware of especially if they decide to take an offer from a prosecutor or if their defense lawyer mentions what they want to accomplish.

Recently I just helped a client that went through this when wanting to renew their visa to stay in the United States. Though they didn't know at the time about the Petty Offense Exception, they were lucky enough to plead guilty to a crime that fit within the exception. Had they not, they would have most likely been deported.

This was a client who accidentally left an item ($10 pair of children's shoes) on her child's feet after checking to make sure they fit, upon leaving a grocery store without paying for it (she had paid over $120 for all other items). She was apprehended and charged with theft. She was offered a plea deal to drop it down to a Retail Theft Infraction, which required no jail time and a small fine. This stupid mistake could have ruined everything that this client and her family had been working towards. Luckily, things worked out this time.

Unfortunately, not all immigrants can be so lucky. There are many Prosecutors and Defense Attorney's, who either don't know the law or don't care about possible consequences. That is why, immigrants need to go to someone who cares and actually knows the laws. Even the simplest of mistakes can have the harshest consequences. If immigrants are not taken care of and find someone who does not know how to navigate the United States immigration laws, they could be on the wrong side of the law (and the border).

I hope this article helps, if you have any more questions or need legal advise please contact me either by email or by phone. I am here to help. This is my passion and I want to help.

About Me

Hey Everyone,

My name is Jake Jensen and I am an Associate Attorney at Kelly & Bramwell P.C. in Draper Utah. I recently graduated from Texas A&M University School of Law as well as recently passed the Utah Bar. I live in Utah with my wonderful wife Breanne and our incredible daughter Peyton. They are the joys of my life and I love spending as much time as I can with them. We are surrounded here in Utah by family and friends which keeps us busy at all times.

Immigration work is my passion. I went into the profession of law wanting to be an immigration lawyer. I served my LDS mission in South Houston, Texas and fell in love with the many immigrants that I met there. I speak Spanish, but am willing to learn other languages if it means that I can help others come into this country legally and become citizens. Another reason Immigration law is a passion of mine is because if it wasn't for immigration, I would never have met my wife. My wife and her family are from Canada. Due to her dad being an American citizen, she and her siblings achieved Dual Citizenship, meaning that they are citizens of both the United States and Canada. However, her other family that have arrived from Canada legally, have waited years to become citizens, and were even deported due to poor legal services from their attorney. This should not happen.

There are thousands of people that want to come to the United States legally that are beneficial to our country, but unfortunately the current immigration laws are so dense that it really does take a professional to navigate it especially in the current political climate that we are living in. That is my goal is to help others navigate through these life-changing laws so that all people can get the best representation possible.

This blog will discuss the immigration laws in their current form as well as discuss solutions, issues and provide real world examples of how the current immigration laws have can help those that want to come into the United States or those that are already here.

I hope that through this blog and if necessary a free consultation, we can navigate these laws together to reach a goal that is attainable with the proper legal help.

Regards,

Jake "The Immigration Law Guy" Jensen