Aggravated Felonies

 

Consular processing is the means by which noncitizens obtain immigrant and non-immigrant visas (at U.S. embassies or consulates abroad), if they are unable or choose not to obtain the visa or adjust status within the United States.  All the various requirements to obtain the various visas are beyond the scope of this book.  However, in every case, if a noncitizen falls within a criminal ground of inadmissibility, the consulate may deny the visa application.  Aggravated felonies do not in themselves trigger inadmissibility, but the same conviction may trigger inadmissibility if it also constitutes, for example, a crime of moral turpitude or drug offense.  See § 2.2, supra.  There are a number of criminal grounds of inadmissibility,[79] and counsel should determine whether any apply before making a visa application.    

 

If the noncitizen needs to apply for a waiver of inadmissibility, s/he will need to wait until after the consulate interview has been completed, and inadmissibility has been formally established.  Any application for a waiver will be forwarded to a USCIS office having jurisdiction over the consular post to decide whether the waiver may be granted.  Waivers of inadmissibility that may be used in conjunction with an application for an immigrant visa include INA § § 212(d)(11) (alien smugglers), 212(h) (certain criminal grounds), and 212(i) (false statements), and former 212(c).  See § § 2.44-2.46, infra.[80]  For non-immigrant visa applicants, a general waiver is available under INA § 212(d)(3).  See § 2.46(E), infra.  The ultimate decision whether to grant the visa, however, lies with the consulate.[81] 

 

Administrative[82] and judicial review[83] of consulate decisions is possible, but rare.  “A federal agency is obligated  to follow circuit precedent in cases originating within that circuit.”[84]  There does not appear to be any case applying this doctrine to a case involving a consular post, but inasmuch as the consular post is an office of a federal agency, the Department of State, and a case originated in a circuit, with an I-130 or I-485 filed there, then the this rule should apply.[85]

 

Title 22 of the Code of Federal Regulations dictates who should be found inadmissible for crimes of moral turpitude,[86] controlled substances offenses,[87] multiple criminal convictions,[88] and prostitution.[89]  These regulations generally track the requirements in the INA.[90]

[79] See generally INA § 212(a)(2), 8 U.S.C. § 1182(a)(2).  For a checklist of crime-related grounds of inadmissibility, see N. Tooby, Criminal Defense of Immigrants, Appendix G (2003); N. Tooby & J. Rollin, Safe Havens: How to Identify and Construct Non-Deportable Convictions, Appendix G (2005).

[80] See Matter of Azurin, 23 I. & N. Dec. 695 (BIA 2005) (adjustment of status in combination with a waiver under INA § 212(c), 8 U.S.C. § 1182(c) permitted even where the offense waived is also an aggravated felony); Matter of Gabryelsky, 20 I. & N. Dec. 750 (BIA 1993) (adjustment of status in combination with a waiver under INA § 212(h), or 212(c), is available as a defense to deportation).

[81] INA § 104(a), 8 U.S.C. § 1104(a).

[82] 22 C.F.R. § 42.81.

[83] See, e.g., Abourezk v. Reagan, 785 F.3d 1043 (D.C. Cir. 1986), aff’d mem., 108 S.Ct. 252 (1987) (per curiam) (visa may not be refused in violation of law).

[84] Singh v. Ilchert, 63 F.3d 1501, 1508 (9th Cir. 1995).

[85] Thanks to Rick Coshnear.

[86] 22 C.F.R. § 40.21(a).

[87] 22 C.F.R. § 40.21(b).

[88] 22 C.F.R. § 40.22.  See INA § 212(a)(2)(B), 8 U.S.C. § 1182(a)(2)(B).

[89] 22 C.F.R. § 40.24.  See INA § 212(a)(2)(D), 8 U.S.C. § 1182(a)(2)(D).

[90] One interesting thing to note, however, is that the regulations state that U.S. executive and certain German pardons are effective to avoid inadmissibility on account of a CMT conviction, 22 C.F.R. § 40.21(a)(5), or multiple criminal convictions.  22 C.F.R. § 40.22(c).