Criminal Defense of Immigrants


§ 17.11 (A)

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(A)  Inadmissibility a Time of Entry or Adjustment of Status.  Any noncitizen is deportable who, at the time of entry or adjustment of status, was within one or more classes of noncitizens inadmissible under the law at the time of entry.[105]  Although this is a ground of deportation, it incorporates by reference every ground of inadmissibility.[106]  See Appendix E, Checklist of Grounds of Inadmissibility.  This ground would apply, for example, where the noncitizen gained entry or adjustment of status by fraud, or where the noncitizen has a prior conviction that rendered him/her inadmissible and the conviction was not brought to the attention of the DHS.[107] 


This ground does not apply where a noncitizen was not inadmissible at the time of admission, but later became inadmissible (e.g., through an act of the noncitizen or through a change in the law).[108]  For adjustment purposes, the relevant question is whether the noncitizen was inadmissible at the time the adjustment application is approved.  Therefore, if the noncitizen commits a criminal offense that triggers inadmissibility after applying for adjustment, that offense will render him/her inadmissible.[109]


        The decision by a consul or immigration officer to admit or adjust a noncitizen is not binding upon the United States.  If the officer made a mistake, or was deceived, the immigrant may be deported under this ground at any subsequent time when the existence of the ground of inadmissibility is discovered.[110]  Res judicata does not preclude the government from reconsidering a grant of admissibility,[111] and the government is not stopped from later questioning an improper entry or admission, in the absence of affirmative misconduct of its officers.[112]  The government may deport the noncitizen on this ground even though s/he could have been lawfully admitted at the time of admission if s/he had complied with the prescribed requirements.[113]  However, once the government has officially acknowledged the lawfulness of an entry or admission by a grant of registry,[114] by a waiver of inadmissibility,[115] or in some other manner, the government cannot collaterally question the decision in removal proceedings. The entry or admission is regarded as lawful until the grant of relief is rescinded in some appropriate manner.[116]


For purposes of this ground (and the marriage fraud ground of removal[117]), a discretionary waiver is available for a noncitizen was inadmissible at time of entry or adjustment for (visa fraud), [118]who is the spouse, parent, or child of a United States citizen or lawful permanent resident and was admissible except for labor certification requirements or documentation requirements which were a direct result of the misrepresentation.[119]  A similar waiver is available for certain noncitizens and their children who have been subject to battery or extreme cruelty by a spouse.[120]


This deportation ground does not apply to a special immigrant juvenile based upon circumstances that existed before the date s/he was granted that status, unless the noncitizen is inadmissible on the basis of a crime-related[121] or security-related[122] ground of inadmissibility.[123]


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

[106] INA § 212, 8 U.S.C. § 1182.

[107] See, e.g., Zavaleta-Gallegos v. INS, 261 F.3d 951 (9th Cir. 2001).

[108] Francis v. Gonzales, 442 F.3d 131 (2d Cir. 2006) (government failed to show noncitizen deportable for being inadmissible at entry or adjustment on the basis that he admitted commission of a controlled substances offense, under current INA § 212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II), since this ground of inadmissibility was not triggered by an admission of commission of the offense until Immigration Act of 1990, effective November 29, 1990, and noncitizen adjusted status prior to that date).

[109] Perez-Enriquez v. Ashcroft, 411 F.3d 1079 (9th Cir. 2004).

[110] Vajta v. Watkins, 179 F.2d 137 (2d Cir. 1950).  See also Lazarescu v. United States, 199 F.2d 898 (4th Cir. 1952).

[111] Mannerfrid v. Brownell, 238 F.2d 32 (D.C. Cir. 1956); Matter of LaRochelle, 11 I. & N. Dec. 436 (BIA 1965) (approval at entry by medical officers does not preclude reexamination in deportation proceeding of medical inadmissibility at entry); Matter of Khan, 14 I. & N. Dec. 397 (BIA 1973) (not entitled to preference); Matter of Polanco, 14 I. & N. Dec. 483 (BIA 1973) (not entitled to exemption from labor certification as child of resident, because of intervening marriage, no estoppel). See Charles Gordon, Finality of Immigration and Nationality Determinations, 31 U. Chi. L. Rev. 433 (1964); Asimow, Estoppel Against the Government: The Immigration and Naturalization Service, 2 Chicano L. Rev. 4 (1975).

[112] Santiago v. INS, 526 F.2d 488 (9th Cir. 1975); Angeles v. District Director, INS, 729 F. Supp. 479, (D. Md. 1990) (government not estopped from excluding or deporting noncitizen although each time she left or returned to the United States, immigration officers wrongfully told her that as long as she did not remain out of United States for more than one year, her permanent residence status would remain valid; noncitizen had failed to show affirmative misconduct beyond negligence or mere mistake, and officers did not know all material facts regarding the noncitizen’s circumstances).

[113] Marty v. Nagle, 44 F.2d 695 (9th Cir. 1930); McCandless v. Murphy, 47 F.2d 1072 (3d Cir. 1931). See C. Gordon, S. Mailman, & S. Yale-Loehr, Immigration Law and Procedure § 71.04[3] (2004) (unlawful presence in the United States).

[114] Matter of V, 7 I. & N. Dec. 363 (BIA 1956).

[115] Matter of GA, 7 I. & N. Dec. 274 (BIA 1956).

[116] See C. Gordon, S. Mailman, & S. Yale-Loehr, Immigration Law and Procedure § 51.06[4] (2004) (rescission).

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

[118] INA § 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i).

[119] INA § 237(a)(1)(H)(i), 8 U.S.C. § 1227(a)(1)(H)(i).  See Matter of Li Fu, 23 I. & N. Dec. 985 (BIA Sept. 6, 2006).

[120] INA § 237(a)(1)(H)(ii), 8 U.S.C. § 1227(a)(1)(H)(ii).

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

[122] INA § 212(a)(3), 8 U.S.C. § 1182(a)(3).

[123] INA § 237(c), 8 U.S.C. § 1227(c).



Flores-Figueroa v. United States, ___ U.S. ___, 129 S.Ct. 1886 (May 4, 2009) (use of fake SSN, in violation of 18 U.S.C. 1028A(a)(1), is not identity theft since the offense does not require, as an element, knowledge that the means of identification at issue belonged to another person).


Matter of Federiso, 24 I&N Dec. 661 (BIA 2008) (To be eligible for a waiver of removal under INA 237(a)(1)(H)(i), 8 U.S.C. 1227(a)(1)(H)(i), for making a misrepresentation in order to obtain admission to the United States, a noncitizen must establish a qualifying relationship to a living relative).

Second Circuit

United States v. Harvey, 746 F.3d 87, 89-90 (2d Cir. Mar. 26, 2014) (per curiam) (federal conviction for illegal reentry after deportation affirmed, over objection that evidence of actual deportation was insufficient to sustain the conviction: a properly executed warrant of deportation, coupled with testimony regarding the deportation procedures followed at that time, is sufficient proof that a defendant was, in fact, physically deported from the United States.); citing United States v. Garcia, 452 F.3d 36, 43"44 (1st Cir.2006); United States v. Bahena"Cardenas, 411 F.3d 1067, 1074"75 (9th Cir.2005).

Lower Courts of Second Circuit

Szpak v. DHS, __ F.Supp.2d __, 2007 WL 2128366 (E.D.N.Y. Jul. 25, 2007) (the fact that applicant stated that he had not been arrested [after prior indication that he had] was not an intentional misstatement to the government where applicant could have believed that the expungement of the records of those arrests meant that he could state to the government that he had no longer been arrested).

Fourth Circuit

United States v. Garcia-Ochoa, 607 F.3d 371 (4th Cir. Jun. 11, 2010) (statement on I-9 form that defendant was "citizen or national" of the United States was material for purposes of sustaining convictions under 18 U.S.C. 1001 and 1546(a), even though the defendant was eligible to work through TPS, since the I-9 form may be used for other purposes, including later investigation by ICE).

Sixth Circuit

Hassan v. Holder, __ F.3d __ (6th Cir. May 11, 2010) (to establish false claim to citizenship, DHS must assert both that the claim was made, and that it was made for an immigration "purpose or benefit"; government failed to establish that applying for a loan was an immigration purpose or benefit to sustain the ground of removal, since it failed to establish how immigration status would affect application for a business loan).

Eighth Circuit

United States v. Pool-Chan, 453 F.3d 1092 (8th Cir. Jul. 18, 2006) (federal conviction of possession of counterfeit social security card violates 18 U.S.C. 1546(a), even if the card is not signed).

Lower Courts of Eighth Circuit

United States v. Murillo, ___ F.Supp.2d ___, 2008 WL 697160 (N.D. Iowa Mar. 13, 2008) (a "social security card" does not constitute a "means of identification" within the meaning of 18 U.S.C. 1546(b) and 8 U.S.C. 1324a(b), so the court grants defendant's motion to dismiss Count 3); United States v. Tyson Foods, Inc., 258 F. Supp. 2d 809 (E.D. Tenn. 2003) (a "social security card" is not a "means of identification" within the meaning of 18 U.S.C. 1546(b), even if this creates a "loophole" or appears inconsistent with 18 U.S.C. 1546(a)).

Ninth Circuit

Federiso v. Holder, 605 F.3d 695 (9th Cir. May 19, 2010) (noncitizen whose mother is a USC continues to be "the son . . . of a citizen of the United States, for purposes of INA 237(a)(1)(H)(i)(I), even after his mothers death), interpreting Matter of Federiso, 24 I. & N. Dec. 661 (BIA 2008).
Corona-Mendez v. Holder, 593 F.3d 1143 (9th Cir. Feb. 3, 2010) (waiver of misrepresentations at time of admission, under INA 237(a)(1)(H) is only available where the applicant is not also inadmissible on other grounds (i.e., illegal re-entry) not arising out of the same temporal incident; this waiver may not be combined with other waivers to avoid this bar).


Consolidation of Guidance Concerning Unlawful Presence May 6, 2009 AFM revision, USCIS.
United States v. Murillo, ___ F.Supp.2d ___, 2008 WL 697160 (N.D. Iowa Mar. 13, 2008) (a "social security card" does not constitute a "means of identification" within the meaning of 18 U.S.C. 1546(b) and 8 U.S.C. 1324a(b)); United States v. Tyson Foods, Inc., 258 F. Supp. 2d 809 (E.D. Tenn. 2003) (a "social security card" is not a "means of identification" within the meaning of 18 U.S.C. 1546(b), even if this creates a "loophole" or appears inconsistent with 18 U.S.C. 1546(a)).
DOS cable dated July 7, 2007: "This cable clarifies how consular officers should handle cases where an applicants' criminal record shows an arrest or conviction for drunk driving or other alcohol related offence."
It is risky for a noncitizen who has voted unlawfully to apply for naturalization, unless they have a defense under McDonald v. Gonzales, 400 F.3d 684 (9th Cir. 2005), but proving something was not willful can be difficult. Cancellation of removal is possible to avoid the unlawful voting ground of deportation, but the immigration court might deny it in the exercise of discretion. Illegal voting is not only a Good Moral Character issue. While the passage of time may take the unlawful voting and the making of a false statement under 8 CFR 316.10(b)(2)(vi) outside the period for which good moral character must be shown to naturalize, the noncitizen is still subject to deportation under INA 237(a)(6), 8 U.S.C. 1227(a)(6). The trend in adjudications on false claims and illegal voting has gotten tougher in the last five years, and ICE rarely exercises prosecutorial discretion in favor of the noncitizen. Thanks to D. Jackson Chaney.