Admissibility and Removal

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Admissibility and Removal
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Analyzing Issues involving Grounds of
Inadmissibility
Statutory authority is found at 8 U.S.C. 1182,
Sec. 212 INA Regulatory guidance 8 C.F.R. 1212
22 C.F.R. 40 Immigration Regulations
http//uscis.gov/graphics/lawsregs/8cfr.htm State
Department Regs lthttp//foia.state.gov/regs/search
.aspgt Policy Manuals 9 F.A.M Part 40
lthttp//foia.state.gov/regs/search.aspgt O.I. 212
Policy Manuals
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General Observations

• Burden of proof for admission - clearly and
  beyond a doubt entitled to be admitted.
• Many of the grounds of inadmissibility (and
  deportability) have waivers.
• Inadmissibility grounds are interpreted more
  broadly (deportability grounds are viewed more
  narrowly with tighter interpretation
• The procedural rights available to an individual
  will vary depending on where a person is in the
  process
• Are they seeking admission or have they been
  admitted

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• These provisions are applied or interpreted by US
  Immigration Customs Enforcement inspectors,
  consular officers, immigration judges, the Board
  of Immigration Appeals and federal judges
  reviewing these decisions

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When Inadmissibility Grounds Should be Considered
Seeking LPR status from within U.S.
When considering naturalization
Visa Application
Port of entry
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Unique to Inadmissibility
Numerous health grounds Admission of acts
constituting crimes Unqualified health
workers Prostitution Unlawful presence bars
Previous removal Polygamy Renunciation of U.S.
citizenship to avoid taxes Accompanying an
inadmissible person International child
abductors Communists or members of totalitarian
party Student visa abusers Not in possession of
valid entry documents Labor certification
requirement
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Grounds of Inadmissibility
Economic Political Health Criminal Quasi-criminal
Miscellaneous
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Economic
Public charge
Likely to become a public charge
Will not displace or adverse impact on U.S.
workers
For persons immigrating on account of employment
must obtain certification from Sec. of Labor
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Political and Foreign Policy
Political
Is or has been a member or affiliated with a
communist or totalitarian party
Foreign Policy
Person whose entry, the Sec. of State has
reasonable ground to believe would have
potentially serious adverse foreign policy
consequences
Terrorism
Person who has engaged in, likely to engage in,
or espouses terrorist activity - (terrorist
organizations and activity are broadly defined as
including non-designated organizations).
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Health
HIV
Deemed a communicable disease of public health
significance
Other comm. diseases
As determined by the Sec. of HHS
Phys or mental disorder
As determined by the Sec. HHS in consult w/
BICE/BCIS AG and Secretary of State, where
disorder may pose threat to property, safety or
welfare of person or where behavior is likely to
recur.
Vaccinations
Where person is immigrating to the U.S. it
includes persons who have not been vaccinated
against listed diseases
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Health, contd
Drug abusers
A person determined according to the Sec. of HHS
to be a drug abuser or addict.
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Criminal
Admission
Admission of acts constituting crimes will render
inadmissible
CMT
A single crime involving moral turpitude
Mult. Crimes
A conviction of 2 or more crimes irrespective of
MT where aggregate sentence of confinement
actually imposed was gt 5 yrs
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Criminal, contd
Controlled Substance
Any conviction for any crime relating to a
controlled substance renders person inadmissible
Controlled Substance II
Any person whom the consular officer or AG knows
or has reason to believe is or has been a
trafficker in any controlled substance is
inadmissible.
Petty Offense
Where crime committed where max. possible penalty
was lt 1 yr. and person sentenced was lt 6 months.
Juvenile Offense
Crime committed while under 18 and person
released from confinement gt 5 years from
application for admission to U.S.
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Quasi-criminal
Fraud
By fraud or willful misrepresenting a material
fact procures or seeks to procure a visa, other
documentation or admission.
Smuggling
Knowingly encourages, induced, assists aliens to
enter the U.S. in violation of law
Polygamy
Prohibits the admission of practicing polygamists
Prohibits admission of persons coming to engage
in or has engaged in prostitution within 10
years. Engaged in business of prostitution or
receives proceeds of prostitution within 10 yrs.
Prostitution
Immunity from prosec.
Asserts immunity from from prosecution for
serious crimes (former diplomats later seeking
admission)
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Miscellaneous
Travel docs
All persons must have proper travel docs.
Previous removal
Person previously removed are barred from
readmission
Accompanying inadmissible
Accompanying dependent inadmissible person
Unlawful presence
Past unlawful presence for inadmissibility
Student visa abuser
Persons admitted may not attend a publicly funded
secondary unless the alien intends to remain at
the school in such status for no more than a year
reimburses the school for the full, unsubsidized
per capita cost of his or her education. Failure
to follow this rule precludes a persons admission.
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Miscellaneous, contd
Frivolous asylum claimants
Barred from receiving a nonimmigrant or immigrant
visa when a determination has been made that
person knowingly made frivolous asylum
application. 8 USC 1158(d)(6), 208(d)(6)