Criminal Grounds of Inadmissibility.

INA § 212(a)(2), and the regulations, case law, and statutory authority issued under it, establish what we call the “criminal grounds of inadmissibility.” The following, in short: Criminal prosecution per se does not establish criminal inadmissibility under INA § 212(a)(2).

The distinction between INA § 212(a)(2) (Criminal Grounds of Inadmissibility) and criminal prosecution is important. While criminal prosecution is one of five different legal consequences that can result from a person’s conduct, each is distinct from the others. Those five different legal consequences include:

• Inadmissibility
• Removability
• Detention
• Prosecution
• Denial of Immigration Benefits, Visas, and Other Legal Authorizations

While it is true that some grounds will trigger more than one of these legal consequences, those legal consequences are not the same. Here is the list of the grounds for inadmissibility under INA § 212(a)(2) and the regulations, precedents, and other authorities that interpret and enforce it. Here too, the distinction between “conviction,” “admission,” and “guilty plea” is significant. Even if the distinction does not affect which ground applies, the type of legal finding that establishes that ground can affect the availability of defenses to criminal inadmissibility.

• INA § 212(a)(2)(A)(i)(I), Conviction or Admission Involving Moral Turpitude (CIMT)
• INA § 212(a)(2)(A)(i)(II), Controlled Substance Conviction or Qualifying Admission
• INA § 212(a)(2)(B), Multiple Convictions with Aggregate Confinement of Five Years or More, The provision that defines multiple conviction inadmissibility is similar to the provision that defines multiple conviction removability. Under INA § 212(a)(2)(B), multiple-conviction inadmissibility applies when an individual has been convicted of two or more offenses, other than purely political offenses, for which the aggregate sentences to confinement were five years or more.

While this provision applies to a combined five years or more of confinement, it does not apply when a person is convicted of a crime that makes them subject to inadmissibility under INA § 212(a)(2)(A) for a five-year (or more) sentence alone.

When do Exceptions, Foreign Offenses, or Old Convictions Change the Result?

In some cases, exceptions may limit the grounds for inadmissibility. Examples include:

• The petty-offense exception, This exception is applicable when: (1) the maximum criminal penalty for the offense was one year or less; and, (2) the actual criminal penalty served was six months or less.
• The youthful-offender exception, The youthful-offender exception applies only to one crime involving moral turpitude committed before the person reached age 18, when the person was released from confinement for that crime more than five years before applying for a visa or admission.
• Purely political offenses, Purely political offenses are excluded from INA § 212(a)(2)(A)(i)(I), which deals with inadmissibility due to crimes involving moral turpitude.

Generally, those inadmissible under INA § 212(a)(2)(A) are inadmissible for life. INA § 212(a)(2)(C) makes an alien inadmissible when the consular officer or Attorney General knows or has reason to believe that the alien is or has been an illicit trafficker in a controlled substance, or knowingly aided, abetted, assisted, conspired, colluded, or endeavored to do so.

Criminal attempts, conspiracies, and aiding and abetting of attempted and conspiratorial offenses can also trigger inadmissibility under INA § 212(a)(2)(A) in addition to those other criminal offenses and admissions previously discussed. If you are being denied admissibility on the basis of an attempt to commit an offense, or on the basis of a conspiracy to commit an offense, the attempt or conspiracy will need to meet one of the applicable statutory grounds as well.

A juvenile-delinquency adjudication generally does not constitute an “INA conviction.” Accordingly, a person subject to inadmissibility under INA § 212(a)(2)(A) will generally need to have a different qualifying offense or admission to support that finding, although this may not be the case for those subject to INA § 212(a)(2)(C).

If you have questions about what grounds apply to your situation, please reach out to the lawyers at Spodek Law Group so that we can advise you on your legal rights and options. In most cases, your right to seek relief will turn on your understanding of the statutory and regulatory authority that applies to your specific circumstances.

Spodek Law Group is one of the few firms running every filing, invoice and document through an online portal, which is how it takes cases outside New York.

How Does Immigration Law Turn a Plea or Disposition into a Conviction?

INA § 101(a)(48)(A) establishes the federal definition of a “conviction” for all immigration purposes.

Under the plain language of the statute, the label a state court applies to a plea or a disposition is irrelevant. In other words, while a state judge may enter a deferred disposition with no conviction on the record, that disposition can still amount to a “conviction” under immigration law.

The types of results that can constitute a conviction include:

• Guilty Plea or Admission. A person’s guilty plea or admission can constitute an immigration conviction even if no formal sentencing occurred, so long as some form of punishment or restraint was imposed.
• Deferred Disposition or Withheld Adjudication. A deferred disposition or withheld adjudication also constitutes an immigration conviction if the party involved is subsequently subject to some form of restraint or punishment.
• Qualifying “Admission.” While most grounds of inadmissibility trigger based on a criminal conviction, some grounds trigger upon a “qualifying admission.” In these cases, no criminal conviction is required to support an inadmissibility finding under the INA.

Which Grounds Apply based on an Immigration Law Conviction?

In addition to statutory, regulatory, case law, and agency interpretations, immigration officials determine if a person is inadmissible under INA § 212(a)(2) based on a crime’s elements rather than its federal or state label. To determine this, immigration officials use the “categorical approach,” which compares the statutory elements of the relevant immigration ground of inadmissibility to the statutory elements of the offense for which the person was convicted.

If the elements of the criminal offense are either narrower than or identical to the elements of the immigration ground of inadmissibility, the individual will be found inadmissible. If the elements are broader, this is not necessarily conclusive, and a “modified categorical approach” may apply.

The modified categorical approach applies if the underlying criminal statute is “divisible.” A statute is deemed divisible if it lists “alternative elements,” which define alternative crimes that are distinct from each other. Merely listing alternative factual methods of committing the same offense does not render a statute divisible. If a statute is divisible, then a court may examine whether the individual’s conduct falls under one of the alternate elements covered by the INA.

What Records and Waivers Can Overcome Criminal Inadmissibility?

INA § 212(h) provides a discretionary waiver for several specified grounds of criminal inadmissibility. If a person can qualify for a § 212(h) waiver and demonstrates that it would not render them an increased risk to the safety and security of the United States, the person can qualify for admissibility. The INA controlled-substance waiver under section 212(h) is limited to a single offense of simple possession of 30 grams or less of marijuana. Here, the requirements for securing admissibility include a showing of:

• Statutory Hardship, For most grounds under section 212(h), securing admissibility requires a showing of “extreme hardship” to a qualifying U.S. Citizen or permanent resident relative, or a showing of “rehabilitation.” In either case, the waiver is subject to the U.S. Attorney General’s discretion. The qualifying-relative conditions for a statutory-hardship waiver under INA § 212(h)(1)(B) include demonstrating a relationship to a “in the case of an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the alien's denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien;”
• Rehabilitation, Those who are inadmissible due to non-drug and non-violence-related offenses may qualify for admissibility based on a “rehabilitative” showing.
• Rehabilitative Expungement, While criminal expungements can protect you against the effects of a criminal record in many contexts, a “rehabilitative expungement” does not usually remove a person from the scope of an immigration conviction. Under the INA, expungements only qualify to remove a conviction if the legal validity of the original conviction is found to be defective.
• Conviction Vacated as Legally Invalid, When a criminal conviction is vacated on the basis of its legal invalidity, the record no longer qualifies as an immigration conviction. However, similar to a rehabilitative expungement, vacating an immigration conviction that was legally valid at the time of enforcement does not generally eliminate an immigration conviction for inadmissibility purposes.
• Consular Officer vs. USCIS, Consular officers adjudicate visa applications abroad, while USCIS approves or denies immigrant petitions and adjudicates adjustment-of-status applications filed by eligible applicants in the United States.

Speak With Counsel Before You Answer Anything

If agents have contacted you, the order matters: counsel first, answers second. Spodek Law Group has been practicing since 1976 and defends federal matters nationwide, coast to coast, from offices in New York, Brooklyn, Queens and Los Angeles. Call 888 348 8028.