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Overview

Understanding how criminal convictions map onto the INA's removal provisions is essential for assessing a noncitizen's vulnerability to deportation and potential eligibility for relief. The INA creates parallel frameworks of deportability and inadmissibility with distinct requirements and consequences.


Deportability vs. Inadmissibility

Inadmissibility (INA § 212)

Applies to noncitizens:

  • Seeking entry at a port of entry
  • Applying for visas at consulates abroad
  • Undocumented individuals seeking adjustment of status

Deportability (INA § 237)

Applies to noncitizens:

  • Lawfully admitted to the United States
  • Who subsequently commit offenses violating conditions of admission

Key Distinction: Controlled Substances

Framework Standard
Inadmissibility Any conviction OR admission of controlled substance offense
Deportability Any conviction for controlled substance offense

Key Distinction: CIMTs

Framework Requirement
Inadmissibility Single CIMT conviction or admission
Deportability CIMT within 5 years + 1-year maximum penalty

Grounds of Deportability (INA § 237(a)(2))

Criminal Conviction Grounds

Ground Statutory Basis Requirements
CIMT § 237(a)(2)(A)(i) Within 5 years of admission + 1-year max
Two+ CIMTs § 237(a)(2)(A)(ii) Not single scheme
Aggravated Felony § 237(a)(2)(A)(iii) Any conviction
Controlled Substance § 237(a)(2)(B)(i) Any conviction (except 30g marijuana)
Drug Abuser/Addict § 237(a)(2)(B)(ii) Determination of abuse/addiction
Firearms § 237(a)(2)(C) Any firearms violation
Domestic Violence § 237(a)(2)(E)(i) DV conviction
Stalking § 237(a)(2)(E)(i) Stalking conviction
Child Abuse § 237(a)(2)(E)(i) Child abuse/neglect/abandonment
Protection Order Violation § 237(a)(2)(E)(ii) Violation of DV protection order

Grounds of Inadmissibility (INA § 212(a)(2))

Criminal Conviction Grounds

Ground Statutory Basis Requirements
CIMT § 212(a)(2)(A)(i)(I) Conviction or admission
Controlled Substance § 212(a)(2)(A)(i)(II) Conviction or admission
Multiple Convictions § 212(a)(2)(B) 5+ years aggregate sentences
Drug Trafficking § 212(a)(2)(C) "Reason to believe"
Prostitution § 212(a)(2)(D) Engaging in prostitution
Human Trafficking § 212(a)(2)(H) Trafficking conviction

"Reason to Believe" Standard

Drug trafficking inadmissibility can apply without conviction if immigration authorities have "reason to believe" the individual is or has been an illicit trafficker.

Evidence Sufficiency
Police reports May suffice
Admissions May suffice
Formal conviction Not required

Good Moral Character (GMC) Bars

Statutory Bars During GMC Period

Conduct GMC Effect Citation
Aggravated felony Permanent bar INA § 101(f)(8)
180+ days confinement Bar during period INA § 101(f)(7)
CIMT conviction Bar during period INA § 101(f)(3)
Controlled substance offense Bar during period INA § 101(f)(3)
Two+ gambling offenses Bar during period INA § 101(f)(5)
False testimony for immigration benefit Permanent bar INA § 101(f)(6)

180-Day Confinement Rule

GMC is categorically destroyed if:

Confined to a penal institution for an aggregate period of 180 days or more as a result of any combination of convictions during the statutory period.

Five-Year Aggregate Sentence Rule

Inadmissible under § 212(a)(2)(B) if:

Convicted of two or more offenses where aggregate sentences actually imposed = 5 years or more


Particularly Serious Crimes (PSC)

Effect on Protection Claims

A noncitizen is ineligible for asylum or withholding of removal if determined to have been convicted of a Particularly Serious Crime.

Automatic PSC Classification

Relief Automatic PSC If...
Asylum Any aggravated felony conviction
Withholding of Removal Aggravated felony with 5+ years imprisonment

Frentescu Factors

For non-automatic PSC determinations, the BIA applies Matter of Frentescu factors:

Factor Analysis
Nature of conviction Examine statutory elements
Circumstances Underlying facts of the offense
Sentence imposed Length and type
Danger to community Whether totality indicates danger

Drug Trafficking Presumption

Drug trafficking offenses are generally presumed to be PSCs. This presumption may be rebutted by demonstrating:

Factor Evidence
Peripheral involvement Minimal role in offense
Quantity Microscopic amounts
Absence of violence No weapons, no injury
No organized crime Not connected to trafficking organization

INA § 212(h) Waivers

Availability

The § 212(h) waiver may provide relief for certain inadmissibility grounds:

Ground Waivable Under § 212(h)?
Single CIMT Yes
Prostitution Yes
30g marijuana possession Yes
Aggravated felony No (for LPRs)
Drug trafficking No
Multiple criminal convictions Limited

Extreme Hardship Requirement

Applicant must demonstrate removal would cause "extreme hardship" to a qualifying relative:

Qualifying Relatives
U.S. citizen spouse
U.S. citizen parent
LPR spouse
LPR parent
U.S. citizen son or daughter
LPR son or daughter

The LPR Aggravated Felony Bar

INA § 212(h) contains a critical limitation for LPRs:

An LPR is barred from § 212(h) relief if, since admission as an LPR:

  • Convicted of an aggravated felony, OR
  • Has not continuously resided in the U.S. for 7 years

Circuit Split on "Admission as LPR"

Position Circuits
Bar applies only to those who entered as LPRs 3rd, 4th, 5th, 7th, 11th
Bar applies to all LPRs BIA position (applied where no adverse precedent)

For noncitizens who adjusted status (became LPR from within U.S.), some circuits hold the bar does not apply because they did not "enter" as LPRs.


Relief Eligibility Summary

Relief Aggravated Felony Effect Other Bars
Cancellation of Removal (LPR) Permanent bar CIMT issues
Cancellation of Removal (Non-LPR) Permanent bar GMC requirement
Asylum PSC bar Persecutor bars
Withholding of Removal PSC if 5+ years Persecutor bars
CAT Protection No criminal bars Different standard
Voluntary Departure Aggravated felony bar GMC requirement
Naturalization Permanent GMC bar Various GMC bars

Mandatory Detention

Aggravated Felony Detention

Noncitizens convicted of aggravated felonies are subject to mandatory detention without bond during removal proceedings.

Other Mandatory Detention Grounds

Ground Citation
Terrorist activity INA § 236(c)(1)(D)
Certain drug offenses INA § 236(c)(1)(B)
Certain firearms offenses INA § 236(c)(1)(B)
Two+ CIMTs INA § 236(c)(1)(B)

Quick Reference: Criminal Consequences

Conviction Deportable? Inadmissible? Relief Bars
Aggravated felony Yes Yes Cancellation, VD, PSC (asylum)
Single CIMT (recent) If within 5 yrs + 1 yr max Yes § 212(h) waiver possible
Two CIMTs Yes Yes Multiple bars
Drug conviction Yes Yes Most relief barred
Domestic violence Yes Possible cancellation issues
Firearms Yes Varies

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