Criminal Defense of Immigrants

 

“Admission” to the United States separates those who are subject to the grounds of deportation from those subject to the grounds of inadmissibility.[21]  Persons who have been lawfully “admitted” to the United States, and remain in the United States, are subject to the grounds of deportation.[22]

 

Lawful permanent residents within the United States are subject to the grounds of deportation.  Lawful permanent residents can generally leave the United States and return without needing to be “admitted” again, unless it appears that they fall within one of a number of exceptions.[23]  See § 17.6, infra.  If it is determined that they do fall within one of the exceptions, they will be found subject to the grounds of inadmissibility.

 

Persons who entered the United States with a visa, even if those visas have expired, are subject to the grounds of deportation.[24]  So, for example, a person admitted to the United States with a visitor’s visa is subject to the grounds of deportation, not inadmissibility, even if s/he stays in the United States longer than allowed. 

 

Persons who were admitted to the United States, then leave the United States, fail to enter another country, and then return are still subject to the grounds of deportability.[25]

 

Persons who were admitted to the United States, but should not have been, because they were inadmissible at the time of admission, are subject to a special ground of deportation.[26]  This ground of deportation incorporates, by reference, all grounds of inadmissibility.  See § 17.11, infra.

 

                Persons entering or who have entered the United States illegally are not subject to the grounds of deportation, regardless of how long they have been present in the United States.  This group had previously been subject to the grounds of deportation, but this changed in 1997, when IIRAIRA became effective.[27]

 

                Certain persons designated by the Department of Homeland Security as parolees are subject to the grounds of inadmissibility, not deportability.[28]  Although the DHS has allowed them to enter the United States, parolees have not been formally “admitted” to the United States.  See § 15.14, supra.

 

[21] INA § 235(a)(1), 8 U.S.C. § 1225(a)(1); 8 C.F.R. § 235.1(d)(2).  See § 17.5, infra.

[22] INA § 237(a), 8 U.S.C. § 1227(a).  This requirement applies to convictions before and after the 1952 Act. Khan v. Barber, 253 F.2d 547 (9th Cir. 1958).  See the savings provision in the Immigration Act of 1990, Pub. L. No. 101-649, § 602(c), 104 Stat. 4978, 5081.

[23] INA § 101(a)(13)(C), 8 U.S.C. § 1101(a)(13)(C).

[24] See, e.g., INA § § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B) (making deportable noncitizens present in violation of law, or whose visas or other documentation has been revoked); 237(a)(1)(C), 8 U.S.C. § 1227(a)(1)(C) (making deportable admitted nonimmigrants who have failed to maintain or comply with conditions of visa status).

[25] See, e.g., Handa v. Clark, 401 F.3d 1129 (9th Cir. Mar. 25, 2005) (lawfully admitted noncitizen denied admission into Canada, but allowed by Canadian immigration officials to drive into Canada to turn his car around, is not making an exit and subsequent re-entry to the United States; upon arrest by U.S immigration officials, noncitizen should be placed in deportation, rather than inadmissibility proceedings); Matter of T, 6 I. & N. Dec. 638 (BIA 1955).  But see United States v. Romm, 455 F.3d 990 (9th Cir. Jul. 24, 2006) (border search exception to warrant requirements, allowing government to conduct routine searches of persons entering United States without probable cause, reasonable suspicion, or warrant applies to noncitizen who had attempted to enter Canada, but was turned back; defendant was in same position as any applicant for admission).

[26] INA § 237(a)(1)(A), 8 U.S.C. § 1227(a)(1)(A).

[27] Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) § 301, Pub. L. No. 104-208, 110 Stat. 3009 (Effective April 1, 1997).

[28] See, e.g., Mansour v. Gonzales, 470 F.3d 1194 (6th Cir. Dec. 14, 2006) (noncitizen who was paroled into the United States to stand trial in a criminal case did not make a lawful admission, for purposes of becoming eligible to apply for INA § 212(c) relief or making a motion to reopen removal proceedings); Simeonov v. Ashcroft, 371 F.3d 532, 536 (9th Cir. 2004) (noncitizen paroled into the United States pending completion of exclusion proceedings did not lawfully enter the United States and was therefore ineligible for withholding of deportation).