Criminal Defense of Immigrants


§ 12.24 1. Conduct-Based Grounds

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Although juvenile findings and dispositions normally do not trigger adverse immigration consequences, some immigration consequences flow from the fact that the immigrant committed certain acts.  In general, minors suffer these misconduct-based disabilities just as fully as adult immigrants with some specific exceptions:


Immigration Penalty                                                        Delinquency Disposition


Inadmissible for engaging in prostitution[200]                                      Prostitution (being the prostitute, not the customer)


“Reason to believe” drug trafficking[201]                                             Sale, possession for sale, cultivation


Drug addict or abuser[202]                                                                        Repeated drug findings, finding of abuse, addiction


Mental disability posing threat to self or other[203]                             Suicide attempt, torture or mayhem, sexual predator, repeated offenses linked to alcohol abuse (tends to show alcoholism) 


Court finds violation of domestic violence    Violation of court order

protective order designed to prevent repeated

harassment, credible threats of violence or

bodily injury[204]


                Of these grounds, the most dangerous is if the government has “reason to believe” that the person is or has been, or has assisted, a drug trafficker.  See § § 12.34, 21.6, infra.  The BIA and the Eleventh Circuit have held that the facts underlying drug trafficking offenses can be used to exclude a person under this ground even if the offenses themselves no longer trigger immigration consequences. [205]  In 2000 Congress also provided that the spouse and children of a person inadmissible under this ground are also inadmissible if it can be shown that they “benefited” from the trafficking within the last five years.[206]


Other delinquency findings may waivable, depending on the immigration context.  For example, an applicant for special immigrant juvenile status may apply for a discretionary waiver of inadmissibility under any of the conduct grounds, except for “reason to believe” drug trafficking.  See § 12.7, supra. 


One other way to avoid these conduct-based grounds is to get the juvenile record sealed with the relevant office (e.g., the California the Department of Justice), so that the convictions do not show up on the FBI rap sheet, which is used against noncitizens by immigration authorities in removal proceedings.  The only problem is that a record in some cases may only be sealed once the minor turns 18, and sealing therefore will not protect the minor if removal is initiated while s/he is still a juvenile.


Apart from the bar to Family Unity (which affects a relatively small number of people), see § 12.37(B), infra, a delinquency finding of serious assault or gang-related activity does not cause an automatic immigration bar.[207]  Because targeting noncitizen gangs is a high priority to DHS, gang-related activity, gang membership, and other allegations of gang involvement trigger negative discretionary findings.  In fact, many juveniles have been subject to detention because of these affiliations.

[200] INA § 212(a)(2)(D), 8 U.S.C. § 1182(a)(2)(D).  See § 18.21, infra.

[201] INA § 212(a)(2)(C), 8 U.S.C. § 1182(a)(2)(C).  See § 21.6, infra.

[202] INA § 212(a)(1)(A)(iv), 8 U.S.C. § 1182(a)(1)(A)(iv).  See § 21.10, infra.

[203] INA § 212(a)(1)(A)(iii), 8 U.S.C. § 1182(a)(1)(A)(iii). 

[204] INA § 237(a)(2)(E)(ii), 8 U.S.C. § 1227(a)(2)(E)(ii).

[205] See Matter of Favela, 16 I. &. N. Dec. 753 (BIA 1979) (juvenile convicted under the Federal Youth Corrections Act of a drug trafficking offense, after expungement rendered the conviction itself of no immigration consequence, could still be excluded under the reason to believe ground based on facts underlying the expunged conviction); Castano v. INS, 956 F.2d 236 (11th Cir. 1992) (facts underlying a drug trafficking conviction which had been expunged under the former Federal Youth Corrections Act could still be used to exclude the person under the reason to believe ground). 

[206] INA § 212(a)(2)(C)(ii), 8 U.S.C. § 1182(a)(2)(C)(ii). 

[207] Practitioners should be aware, however, that Congress in 2005 and 2006 actively tried to push gang legislation that would include immigration consequences for those with juvenile adjudications involving gang related activity such as a violent or controlled substance felony. 




To say that there is judicial hostility to asylum applicants who flee gangs in Central America is an understatement. See De Paula v. U.S. Attorney General, 2008 U.S. App. LEXIS 5663 (11th Cir. 2008), Flores-Coreas v. Mukasey, 2008 U.S. App. LEXIS 2403 (1st Cir. 2008), Marquez-Perez v. Mukasey, 2008 U.S. App. LEXIS 4398 (5th Cir. 2008), Hernandez-Donis v. Attorney General, 2007 U.S. App. LEXIS 5648 (3rd Cir. 2007), In re Anonymous, (BIA, April 17, 2008). Immigration Judges in Boston and Arlington, VA recently granted relief to applicants.