Since the passage of the
Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal
Immigration Reform and Immigrant Responsibility Act (IIRAIRA), both in 1996,
deportations of foreigners have increased dramatically. It is a misconception
to believe that only hardened criminals get deported But this perception is
completely wrong. Wrong because of the harsh provisions of the 1996 laws, even
small misdemeanors can lead to one's removal from the United States, no matter
how long he or she has been a lawful permanent resident. It all depends on the
wording of particular statues violated, shoplifting (petty theft), drunk
driving, "joy-riding," disorderly conduct, etc. Any of of these convictions, in
some instances, can be used as a basis for deportation. Most amazingly, in most
cases it matters how long ago the act took place. You could have shoplifted 18
years ago. On the other hand the law also allows for the deportation of
aggravated felons. The problem is that the word "aggravated felony" is defined
differently and much more broadly under any previous immigration law than under
criminal law. Most people would not believe that what may not have been an
aggravated felony or even a deportable act under immigration laws at the time of
the conviction, may be one. If the INS succeeds in proving that an alien is an
"aggravated felon" under immigration laws, he or she is left with practically no
options to avoid deportation.
Note that any violation of your status in the US can potentially result in your
being placed in removal proceedings. These violations include entering the U.S.
without inspection, proper documents or through fraud, improper re‑entry after
deportation, , failure to maintain nonimmigrant status, conviction of a crime
involving moral turpitude, conviction of an aggravated felony, involvement in
prostitution, becoming institutionalized at public expense\ within 5 years of
entry, becoming a public charge within 5 years of entry failure to obtain
permanent residence after being granted a conditional Green Card through the
marriage to a U.S. citizen or Green Card holder, narcotics addiction or
violation of laws relating to controlled substance, assisting another alien to
enter the United States, conviction of possession of an automatic or semi
A charge of deportation is
usually accompanied by an order to show cause, which requires the foreign
national to appear before an immigration judge and demonstrate why he or she
should not be deported. New cases begin with a Notice to Appear and the alien
is brought in front of a judge to determine if he or she should be Removed form
the United States
Grounds of inadmissibility
There are 10 basic grounds of inadmissibility. These are:
Health related grounds;
Public charge grounds;
Undocumented entry and immigration status violations;
Ineligibility for citizenship;
Previous removal or unlawful presence; and
communicable diseases that are considered significant public health risks are
inadmissible. These diseases include HIV and tuberculosis. Also, a failure
to show documentation of certain vaccinations is a ground of inadmissibility.
Persons with a history of physical or mental disorders that have or may in the
future pose a threat to the property, safety, or welfare of the person or
others is inadmissible. Also people found to be drug abusers are
conviction of a crime involving moral turpitude makes a person inadmissible.
However, a single offense that occurred before the age of 18 and more than
five years ago will not be considered, nor will offenses for which the maximum
punishment was only one year and the alien was sentenced to six months or
less. Convictions for crimes involving controlled substances lead to
inadmissibility. Convictions for more than one crime for which the person was
sentenced to at least five total years in prison make a person inadmissible.
Engaging in prostitution or commercialized vice is a basis for
inadmissibility. A person who has committed a serious offense in the US and
has claimed immunity from prosecution is inadmissible. Engaging in the
persecution of other on the basis of their religious beliefs is a ground of
inadmissibility, as is engaging in the trafficking of human beings.
Conviction of one felony in which the sentence imposed “could have been” for a
year or more.
If an INS
inspector or a consular officer has a reasonable ground to believe that the
person is coming to the US to engage in espionage or sabotage, or if that
person is coming to the U.S. To violate any law relating to prohibitions on
exports from the US, the person is inadmissible. Members of a group
designated as a terrorist organization are inadmissible, as are people engaged
in terrorist activities. This most probably will be expanded following the
September 11, 2001 bombing of the World trade Center. If it is determined that
the alien’s presence in the US would have negative foreign policy
consequences, the person can be denied admission. People who were members of
the Communist Party or other totalitarian organizations are generally
inadmissible, as are people who assisted in Nazi era persecution. Those who
have engaged in genocide are inadmissible.
A person who is
likely to become a public charge is inadmissible. This can usually be avoided
in family based immigration with a valid Affidavit of Support.
A person coming
to the US to work must have a labor certification, unless they are able to
qualify for one of the other employment-based immigration categories. People
coming to the US to work as physicians must pass National Board of Medical
Examiners Examination, or its equivalent. Other health care workers must
present certification from designated entities.
Undocumented entry and immigration status violations
Anyone who comes to the US without permission of the INS or State Department is
inadmissible. Missing a (deportation) removal proceeding without a very good
reason makes a person inadmissible for five years. Anyone who engages in fraud
or misrepresentation in an effort to enter the US is inadmissible, as are those
who have made a false claim of US citizenship (more below on this). Those who
violate the terms of a student visa are also inadmissible for five years.
If the applicant
for entry does not possess a valid immigrant or nonimmigrant visa, they are
Ineligibility for citizenship
permanently barred from obtaining US citizenship is inadmissible. This category
of people primarily includes people who got out of military service based on
their alienage, and people who left the US to avoid the draft. It also includes
those that have been previous removed (deportation and exclusion) unless the
required time is spent outside the U.S. before they reenter.
Note that aliens who have been deported are inadmissible. After a first
deportation, the person is inadmissible for five years, and after subsequent
deportations, the period of inadmissibility is 20 years. A person deported
because of an aggravated felony is permanently inadmissible. People who have
been unlawfully present in the US for more than 180 days but less than a year
are inadmissible for three years. Unlawful presence of more than a year leads
to inadmissibility for ten years.
A person is also inadmissible if it is determined that they are required to
assist another person who is inadmissible. Persons who have detained a US
citizen child outside the US are inadmissible until they comply with any court
order regarding the child’s custody. Persons coming to the US to engage in
polygamy are inadmissible. Also, former US citizens who renounced their
citizenship for tax purposes are inadmissible
FALSE CLAIMS TO U.S.
A little known provision in
the law can have extremely devastating effects on individuals who falsely
claim that they are U.S. citizens. The Illegal Immigration Reform And Immigrant
Responsibility Act of 1996 (IIRAIRA) created § 237(A)(3)(D) within the
Immigration and Nationality Act (INA), which states:
Any alien who falsely
represents or has falsely represented, himself to be a citizen of the United
States for any purpose or benefit under this act.....or any federal or state law
This law affects any
individual, who after September 30, 1996, falsely represents himself or herself
as a U.S. citizen. Not only can an individual already in the U.S. be deported
under this provision, but a complimentary provision in the INA also precludes a
potential immigrant from obtaining the green card.
Claiming citizenship can
happen in many ways. A young adult desiring to go to college may state that he
is a U.S. citizen when applying to college. Once this happens the lie continues
on the school records. Finally upon graduation the person applies for a job.
Since 1966 every employer must complete an Employment Eligibility Verification
form at the time of hiring a worker, whether a U.S. citizen or a foreign born
person. This from is called “I-9.” To complete it properly the new employee
must check off whether he or she is a citizen of the United States, a
permanent resident, or an alien authorized to work for a temporary period by the
Immigration and Naturalization Service.
If this misrepresentation
was made after September 30, 1996, he or she can be deported from the United
States. Worse, even is this person is married to an American citizen and has
U.S. citizen children any application for a Green Card could be denied based on
the false representation. At the time of the green card interview, an INS
officer or consular officer could easily inquire whether such a
misrepresentation was made or not. Most applications for immigrant visas require
information about the last five years of employment. If the applicant was
illegal during this period, the officer could look into how the person was able
to work in the U.S. This may necessitate the officer could to request the
applicant to submit the Employment Eligibility Verification form from his or her
employer as a condition for approving the case.
There is absolutely no waiver for
this ground of inadmissibility and deportability. Many families have been
devastated because of this law. Be advised!