Criminal Defense of Immigrants


§ 15.5 D. Inadmissibility v. Deportability

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While a set of deportation grounds exists to remove noncitizens who were legally “admitted”[63] to the United States, a separate set of inadmissibility grounds exists to remove noncitizens who are seeking admission to the United States or entered the United States without having being admitted.  While there are some similarities between these two lists, the two are quite different.  The deportation grounds are discussed generally in Chapter 17, infra.  The grounds of inadmissibility are discussed generally in Chapter 18, infra.


                A criminal conviction or conduct might not trigger any ground of deportation, but could still trigger a ground of inadmissibility.  If a client falls within the grounds of inadmissibility, counsel should advise the client not to leave the United States unless and until the client can become a United States Citizen or otherwise negate the possibility of being found inadmissible for that conduct or conviction.


                The forms of relief available to a noncitizen in immigration court may  differ depending upon whether s/he is subject to inadmissibility or deportability.[64]  Noncitizens in inadmissibility proceedings generally bear the burden of proving they are not inadmissible,[65] while the DHS generally bears the burden of showing that a criminal conviction or conduct triggers deportation.[66]

[63] See § § 17.5-17.8, infra.

[64] See Chapter 24, infra.

[65] See § 18.6, infra.

[66] See § 17.9, infra.



Ninth Circuit

Bingham v. Holder, ___ F.3d ___ (9th Cir. Mar. 23, 2011) (circuit court has jurisdiction to review removal order where noncitizen challenged validity of waiver agreement under Visa Waiver Program based on claim that the VWP waiver was not knowing and voluntary; allegedly unknowing waiver did not result in prejudice where noncitizen did not show he would have been able to contest his removal on any other ground or that he would have declined to sign the waiver if he had been fully informed).