Criminal Grounds of Inadmissibility (Exclusion)
Written by Henry J. Chang
Crimes Involving Moral Turpitude
Aliens who have been convicted of, or who admit to having committed, or who admit to committing acts which constitute the essential elements of a crime involving moral turpitude, other than purely political offenses are excludable under INA §212(a)(2)(A)(i)(I). To be excludable based on an admission, an alien must voluntarily admit all of the facts which constitute the crime and it must be considered a crime under the laws where it occurred. An attempt or conspiracy to commit such a crime is included in this ground.
Moral turpitude refers to conduct which is inherently base, vile or depraved, contrary to the accepted roles of morality and the duties owed between men and men, either one's fellowman or society in general. Neither the seriousness of the offense or the severity imposed determines whether or not a crime involves moral turpitude.
Political offenses are not included in this ground of exclusion. Political offenses are generally considered to be acts taken with others as a part of war, insurrection or rebellion in an attempt to replace the legal authority.
Two exceptions to this ground of exclusion appear in INA 212(a)(2)(A)(ii):
- The ground does not apply where the alien has committed only one crime of moral turpitude, the crime was committed when the alien was under 18 years of age and the crime was committed (and the alien was released from confinement to prison or a correctional institution imposed for the crime) more than five years before the date of application for a visa or other documentation and the date of application for admission to the United States.
- The ground does not apply where the alien has committed only one crime of moral turpitude, the maximum penalty possible for the crime for which the alien was convicted or to which the alien admits having committed or of which acts the alien admits having committed which constitute the essential elements of the crime did not exceed one year of imprisonment and, if the alien was convicted of the crime, the alien was not sentenced to imprisonment for a term greater than six months, regardless of the extent to which the sentence was ultimately satisfied.
Crimes Involving Controlled Substances
Under INA §212(a)(2)(A)(i)(II), aliens who have been convicted of, or who admit to having committed, or who admit to committing acts which constitute the essential elements of a a violation or conspiracy to violate any law or regulation of a State, the United States or a foreign country relating to a controlled substance as defined in s. 102 of the Controlled Substances Act. An attempt or conspiracy to commit such a crime is included in this ground of exclusion.
Multiple Criminal Convictions
Under INA §212(a)(2)(B), an alien who has been convicted or two or more offenses (other than purely political offenses), regardless of whether or not the convictions arose from a single trial or arose from a single scheme of conduct involving moral turpitude and whether or not the offenses involved moral turpitude, is excludable if the aggregate sentence of confinement actually imposed is five years or more.
Controlled Substance Traffickers
An alien who a consular or immigration officer knows or has reason to believe is or has been an illicit trafficker in a controlled substance or is or has been a knowing assister, abettor, conspirator or colluder with others in the illicit trafficking of a controlled substance is excludable under INA §212(a)(2)(C).
Prostitution and Commercialized Vice
An alien is excludable under INA §212(a)(2)(D) if he or she:
- 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 the application for a visa, entry or adjustment of status;
- directly or indirectly procures or attempts to procure, or (within 10 years of the date of application for a visa, entry, 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
- is coming to the United States to engage in any other unlawful commercialized vice, whether or not related to prostitution.
Assertions of Immunity from Prosecution
Under INA §212(a)(2)(E), aliens involved in serious criminal activity who have asserted immunity will be excludable if:
- they have at any time committed a serious offense in the United States;
- immunity from criminal jurisdiction has been exercised with respect to that offense;
- they have departed from the U.S. due to the offense and the exercise of immunity; and
- they have not submitted fully to the jurisdiction of the court of the U.S. that has jurisdiction with respect to that offense.
Foreign Government Officials Who Have Engaged in Particularly Severe Violations of Religious Freedom [Added by International Religious Freedom Act of 1998, Act of October 27, 1998, Pub. L. No. 105-292, 112 Stat. 2787 - applies to aliens seeking to enter the United States on or after October 27, 1998]
According to INA 212(a)(2)(G), any alien who, while serving as a foreign government official, was responsible for or directly carried out, at any time during the preceding 24-month period, particularly severe violations of religious freedom, as defined in section 3 of the International Religious Freedom Act of 1998, and the spouse and children, if any, are inadmissible.
Significant Traffickers in Persons [Added by Trafficking Victims Protection Act of 2000, Pub. L. No. 106-386, Victims of Trafficking and Violence Protection Act of 2000, Act of Oct. 28, 2000, 114 Stat. 1464.]
According to INA §212(a)(2)(H)(i), any alien who is listed in a report submitted pursuant to section 111(b) of the Trafficking Victims Protection Act of 2000 [sec. 111(b), div. A, Pub. L. No. 106-386], or who the consular officer or the Attorney General knows or has reason to believe is or has been a knowing aider, abettor, assister, conspirator, or colluder with such a trafficker in severe forms of trafficking in persons, as defined in the [sic] section 103 of such Act, is inadmissible.
According to INA §212(a)(2)(H)(ii), 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 clause (i), 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.
According to INA §212(a)(2)(H)(ii), clause (ii) shall not apply to a son or daughter who was a child at the time he or she received the benefit described in such clause.
Money Laundering [Added by the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 ("USA PATRIOT Act"), Act of Oct. 26, 2001, Pub. L. No. 107-56, 115 Stat. 272.]
According to INA §212(a)(2)(I), 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, United States Code (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.
Waiver of Certain Criminal Grounds
Under INA §212(h)(1), an immigrant waiver is available for most criminal grounds of exclusion. However, no waiver is permitted for murder, criminal acts involving torture or controlled substance trafficking offenses. Further, the immigrant waiver available for controlled substance offenses not involving trafficking under INA §212(a)(2)(i)(II) is limited to a single offense involving the simple possession of 30 grams or less of marijuana.
There are two waivers available under INA §212(h)(1). A waiver is available under INA §212(h)(1)(A) if the immigrant establishes that:
- the activities for which the alien is excludable occurred more than 15 years before the date of the alien's application for a visa, entry or adjustment of status (unless the alien is excludable for prostitution under INA §212(a)(2)(D)(i) or INA §212(a)(2)(D)(ii), in which case the 15 year time period is not required),
- the admission to the United States of such alien would not be contrary to the national welfare, safety or security of the United States, and
- the alien has been rehabilitated.
A waiver is also available for close family members under INA §212(h)(1)(B) if the immigrant establishes that he or she is the spouse, parent, son or daughter or a United States citizen or an alien lawfully admitted for permanent residence and that the alien's exclusion would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son or daughter of such alien.
No waiver shall be granted in the case of an alien who has previously been admitted to the United States as a permanent resident if either since the date of such admission the alien has been convicted of an aggravated felony or the alien has not lawfully resided continuously in the United States for at least 7 years immediately preceding the date of initation of proceedings to remove the alien from the United States. No court shall have jurisdiction to review a decision of the Attorney General to grant or deny a waiver. [This restriction on waivers is effective on September 30, 1996 and applies to any alien who is in exclusion or deportation proceedings as of such date unless a final administrative order in such proceedings has been entered as of such date.]