Criminal Defense of Immigrants

Under current law, any noncitizen subject to the United States immigration laws is subject to the grounds of inadmissibility unless they have been officially “admitted” to the United States.[16]  “Admission” is a term of art in immigration law, defined by statute as an entry with inspection.[17]  Generally, “admission” means a lawful entry into the United States after inspection and authorization.  See § 17.5, supra.  A person who is granted lawful permanent resident status is generally considered as having been “admitted” on the date the adjustment of status is effective.  See § 17.7, supra. 

Most obviously, those seeking to enter the United States with a visa or by other lawful means are subject to the grounds of inadmissibility.  Lawful permanent residents returning from a trip abroad are not considered applicants for admission unless it appears that they fall within one of a number of statutory exceptions.[18]  See § 17.6, infra.  

                Also subject to the grounds of inadmissibility are people entering or who have entered the United States illegally, 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 on April 1, 1997, when IIRAIRA became effective.[19]

                Persons designated by the Department of Homeland Security as parolees are also subject to the grounds of inadmissibility, even though the DHS has allowed them informally and temporarily to enter the United States.  See § 15.14, supra.

                Persons who are in the United States (legally or illegally), and are seeking to obtain lawful permanent resident status are also subject to the grounds of inadmissibility.[20]  See § 24.2, infra.

                Some forms of relief, such as cancellation of removal for victims of domestic violence,[21] bar relief for persons who fall within certain grounds of inadmissibility, even if they are in deportation proceedings.  See, generally, Chapter 24, infra.  Falling within a ground of inadmissibility can also bar a finding of Good Moral Character, as required for naturalization and other forms of relief.  See § 15.6, supra.

                Persons who are lawfully admitted to the United States, and remain in the United States, are not subject to the grounds of inadmissibility.  This includes persons whose visas have expired.[22]  For example, a person admitted to the United States with a visitors 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 but should not have been, because they were inadmissible at the time of admission, are subject to deportation.[23]  This ground of deportation incorporates, by reference, all grounds of inadmissibility.  See § 17.11, infra.

[16] INA § 235(a)(1), 8 U.S.C. § 1225(a)(1); 8 C.F.R. § 235.1(d)(2).  See § § 17.5-17.8, supra.

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

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

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

[20] INA § 245(a), 8 U.S.C. § 1255(a).

[21] INA § 240A(b)(2), 8 U.S.C. § 1229b(b)(2).

[22] 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).

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