Criminal Defense of Immigrants


§ 18.1 I. Summary for Criminal Defense Attorneys

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Any noncitizen can be found inadmissible.  It does not matter whether the person has a green card or is undocumented (i.e., illegal).  It does not matter how long the person has lived in the United States, or whether they have family here.


                The grounds of inadmissibility apply to any noncitizens who have not been “admitted”[1] to the United States after being inspected and allowed to enter at an official point of entry into the United States, or have not obtained some form of legal status after entering the United States without admission (e.g., through amnesty or a grant of asylum).[2]  Undocumented immigrants are subject to the grounds of inadmissibility, even if they have been in the United States for 50 years and have never left.  People who came into the United States with valid visas, but then overstayed their visas or otherwise did something to invalidate those visas are subject to the grounds of deportability until they leave the United States.


Persons who have been admitted to the United States may later become inadmissible if they leave the country and attempt to return.  A noncitizen “admitted” to the United States may also be considered deportable because s/he was inadmissible at that time, and therefore the admission was improper.[3]         


For these reasons, criminal defense counsel should consider whether a criminal conviction could render the client inadmissible, as well as deportable.


There is a list of reasons a noncitizen will be found inadmissibile to enter the United States, called “grounds of in admissibility.”


Any violation of any law related to a controlled substance, no matter how minor, will render a noncitizen inadmissible.[4]  In many cases, no relief will be available to avoid removal on the basis of a controlled substances offense.[5]


Conviction of any two crimes, even arising from the same act, for which the aggregate sentence imposed is five years or more triggers inadmissibility.[6]  The nature of these crimes is irrelevant.


Commission of even a single crime of moral turpitude will render a noncitizen inadmissible[7] unless it falls within the Petty Offense[8] or Youthful Offender[9] exceptions to inadmissibility.  The Petty Offense exception applies to a first-time moral turpitude offense, where the crime is punishable by less than one year, and the noncitizen is not sentenced to more than six months imprisonment. See § 20.29, infra.  The Youthful Offender exception applies to certain adult convictions for acts committed while the noncitizen was under 18 years old. See § 20.30, infra.  More rarely, a purely “political” offense will also be an exception to the CMT ground of inadmissibility.[10]


There is no aggravated felony ground of inadmissibility, but the conviction itself may trigger inadmissibility under another ground of inadmissibility (such as the controlled substances grounds), and as an aggravated felony conviction will bar most forms of relief from removal.[11]  Likewise there are no firearms offense[12] or domestic violence offense[13] grounds of inadmissibility. [14]


                Generally, the noncitizen bears the burden of proving s/he is not subject to a ground of inadmissibility.  This may not be true in the case of a returning lawful permanent resident.  In any case, if the client is or may be subject to the grounds of inadmissibility, criminal defense counsel needs to be especially careful in crafting a criminal disposition that will not trigger inadmissibility.  See § 18.6, infra.


                There are a large number of conduct-based grounds of inadmissibility, which may trigger a ground of inadmissibility regardless of the criminal disposition.  See § § 18.16-18.27, infra.  In many cases, however, a carefully constructed criminal disposition may be able to avoid some of these conduct-based grounds.

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

[2] See § § 17.5-17.8, supra.

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

[4] See § § 21.3-21.10, infra.

[5] See § § 15.16, supra, § § 21.16, infra.

[6] INA § 212(a)(2)(B), 8 U.S.C. § 1182(a)(2)(B).  See § 18.15, infra.

[7] INA § 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I).  See § 20.26, infra.

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

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

[10] See § 20.31, infra.

[11] See § 19.97, infra.

[12] See § 23.5, infra.

[13] See § 22.5, infra.

[14] INA § 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I) (crime of moral turpitude “(other than a purely political offense)”).