Immigration Laws of the United States of America
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Current immigration laws are very harsh, especially for those who have a criminal record. This section provides a comprehensive explanation and evolution of basic immigration laws, including criminal and non-criminal bases for deportation from the United States. This, by no means, includes every possible topic in immigration law and should not be construed as legal advice. This section solely deals with "typical" issues in immigration laws. You should consult an immigration attorney for a specific answer to a legal question.
"The Game" - Background of Immigration Law
Immigration law has evolved over the course of American and Global history. A primary purpose of United States immigration laws is to control the number and type of non-citizens who can be in the country. Among other things, these immigration laws outline conduct that can disqualify non-citizens from getting permission to enter or remain in the U.S. A key mechanism for enforcing the law against non-citizens already in the country is through their deportation. Under the law, one way such actions are justified is when the individual involved has been found to have committed various crimes.
For most of its history, the United States has maintained immigration laws to control which non-citizens are allowed to be in the country, for what reasons, for how long, and who can become citizens. The Alien Act of 1798, known as the Alien and Sedition Laws, empowered the President to expel any alien, or non-citizen, he deemed dangerous. A general immigration law passed in 1882 called for the exclusion of "idiots, lunatics, convicts, and persons likely to become public charges." The 1882 law also banned Chinese immigrants. A 1917 immigration law established a literacy requirement for admission to the country.
Establishing the Basic Structure of the Current Immigration Law
In 1952 the McCarran-Walter Act established the basic structure of today's immigration law, setting up deportation procedures, creating a quota system based on nationality, as well as detailed exclusions based on political grounds. Other major changes of the immigration laws have occurred in 1965, 1980, 1986, 1988, 1990, and 1996. Congress is again seriously debating major immigration revisions.
"The Rules" - The Governing Law
Congress creates immigration law and policy through statutes. The primary immigration laws are contained in a statute known as the Immigration and Nationality Act (INA). The INA and its related federal regulations (Title 8 of the Code of Federal Regulations) cover immigration laws governing:
- Who is an immigrant and who is a citizen
- Who can enter the country from abroad
- Who must have a visa to enter the country
- How visas are defined and administered
- How immigrants are processed
- Which immigrants can be removed (deported) from the country
- What immigrants must do to maintain their legal status
- How immigrants can become permanent residents or naturalized citizens
- Who qualifies as a refugee or asylum recipient
"The Players" - Immigration Government Agencies
Department of Homeland Security (DHS)
The Department of Homeland Security is responsible for providing immigration-related services and benefits such as naturalization and work authorization as well as investigative and enforcement responsibilities for enforcement of federal immigration laws, customs laws, and air security laws.
U.S. Citizenship and Immigration Services (USCIS)
Created in 2003 to replace the former Immigration and Naturalization Service, the USCIS is responsible for the administration of immigration and naturalization adjudication functions and establishing immigration services policies and priorities. These functions include:
- adjudication of immigrant visa petitions;
- adjudication of naturalization applications;
- adjudication of asylum and refugee applications;
- adjudications performed at the service centers and all other adjudications performed by the former INS.
Click here to learn more about the services and benefits provided by the USCIS.
U.S. Immigration and Customs Enforcement (USICE)
Created in March 2003, USICE is the largest investigative branch of the DHS. The agency was created after September 11, 2001, by combining the law enforcement arms of the former Immigration and Naturalization Service (INS) and the former U.S. Customs Service, to more effectively enforce immigration and customs laws and to protect the United States against terrorist attacks. USICE is the agency that has authority over detention and removal of aliens. It is also the agency that represents the government in immigration court.
Click here to learn more about the functions and powers of the USICE.
U.S. Customs and Border Protection (CBP)
A branch of the DHS, U.S. Customs and Border Protection is the single unified border and port of entry agency of the United States of America. The CBP joins together the Customs Inspector, the Immigration Inspector and the Agriculture Inspector at the nation's points of entry -- borders, airports, and seaports. The CBP seeks to facilitate the flow of legitimate trade and travel through points of entry into the U.S., while preventing terrorist and other criminal activity from entering the U.S.
Click here to learn more about the functions of the CBP.
Executive Office for Immigration Review (EOIR)
The EOIR was created on January 9, 1983, through an internal Department of Justice (DOJ) reorganization, which combined the Board of Immigration Appeals (BIA or Board) with the Immigration Judge function previously performed by the former Immigration and Naturalization Service. Besides establishing EOIR as a separate agency within DOJ, this reorganization made the Immigration Courts independent of INS (now the DHS), the agency charged with enforcement of federal immigration laws.
Click here to learn more about the functions and powers of the EOIR.
"The Winners and the Losers" - Can I be deported?
A. Citizens vs. Non-Citizens
A bedrock rule of United States immigration laws is that they do not apply to US citizens whether they became citizens by virtue of being born here, born elsewhere to US citizen parents, or through the process of naturalization. Regardless of the manner of obtaining citizenship, citizens are not subject to deportation and other restrictions of our immigration laws.
This, of course, means that all non-citizens who are physically present in the country or who seek such immigration benefits as work and tourist visas and green cards or citizenship, are subject to these immigration laws. Violations of immigration laws entail the possibility of not being able to come to the USA or being forced to leave through a deportation process with the potential of never being able to return lawfully.
Non-citizens are subject to deportation regardless of their:
- immigration status
- length of residence in the United States
- existence of significant family ties
- existence of steady work history and tax payments
- contributions to the community
Deportation, of course, can mean severe hardships depending on the situation of the person being deported. For green card holders, deportation means being forced off the path to citizenship. For those without a green card, deportation means indefinite separation from family members, giving up roots and ties to the community, and significant financial hardships to themselves and to their family members. For some convicted of certain crimes, deportation means permanent banishment from the United States.
B. Difference Between Deportability and Inadmissibility
Immigration laws distinguish between those aliens who are "deportable" and those who are "inadmissible." Deportable aliens are those aliens present in the United States but are subject to deportation for a violation of immigration laws of criminal laws of the United States.
On the other hand, inadmissible aliens are those aliens who are seeking entry into the United States (in the legal sense, for example, by applying for adjustment of status) but who are not admissible for various reasons, such as not being in possession of a valid visa or due to a previous criminal conviction.
Even people with green cards who commit a crime, then travel abroad and return, may be classified as "inadmissible" aliens, because upon their return, they would be applicants for admission to the United States and their previous conviction may make them "inadmissible."
Different Immigration Laws Apply
Different immigration laws apply to "deportable" and "inadmissible" aliens. Deportable aliens are subject to INA § 237, whereas inadmissible aliens are subject to grounds of inadmissibility found at INA § 212. There are certain grounds of deportability and inadmissibility for which an alien may be eligible for apply for a form of relief. However, not everyone qualifies for relief from being deported from the United States. Click here to learn more about the various forms of reliefs available to someone facing deportation or a ground of inadmissibility.
Who can be Deported? - Classes of Deportable Aliens
Deportation (also called "removal") occurs when the federal government formally removes an alien from the United States for violations of a number of immigration or criminal laws. The immigration statute lists a number of types of activities that can make one "deportable." The primary ones relate to immigration violations, national security and terrorism activities, and criminal violations.
Any alien that is in the United States may be subject to deportation or removal if he or she:
- Is an inadmissible alien according to immigration laws in effect at the time of entry to the U.S. or adjustment of nonimmigrant status (INA § 237(a)(1)(A)) (see INA § 212(a) for grounds of inadmissibility);
- Is present in the U.S. in violation of the Immigration and Nationality Act or any other U.S. law;
- Violated nonimmigrant status or a condition of entry into the U.S. (INA § 237(a)(1)(C));
- Terminated a conditional permanent residence (INA § 237(a)(1)(D));
- Encouraged or aided any other alien to enter the U.S. illegally (i.e. alien smuggling) (INA § 237(a)(1)(E));
- Engaged in marriage fraud to gain admission to the U.S. (INA § 237(a)(1)(G));
- Was convicted of certain criminal offenses (including drug offenses, aggravated felonies, and crimes involving moral turpitude) (INA § 237(a)(2));
[NOTE: Aggravated felony is only a ground of deportability! It is not a ground of inadmissibility!] - Failed to register or falsified documents relating to entry in to the U.S. (INA § 237(a)(3));
- \Engaged in any activity that endangers public safety or creates a risk of national security (INA § 237(a)(4) and INA § 237(a)(5); or
- Engaged in unlawful voting (INA § 237(a)(6)).
[This is not an exhaustive list of grounds of deportability. See INA § 237(a) for the exact language of all of the grounds of deportability]
The first problem created by these categories is that some of these broad categories are not straightforward and often require detailed analysis by an experienced immigration law professional to determine whether a person has violated any immigration laws.
A second problem is that certain key words and phrases, such as "moral turpitude," though generally referring to crimes involving dishonesty, immorality, or violence, are not defined in the immigration laws. As a result, the question of which criminal convictions involve an act of moral turpitude have been determined by court decisions and are very fact-specific. Analysis of these crimes is additionally complex because United States immigration law generally requires that crimes involving "moral turpitude" have been committed within five years of coming to the US and involve a potential sentence of at least one year (INA § 237(a)(2)(A)(i)).
So, in certain cases, not only must you decide whether a certain crime is one involving "moral turpitude," but whether it was committed within five years of entry or later. Answers to these questions often determine whether someone is deportable but eligible for relief, or not deportable at all.
Aggravated Felonies - Your Worst Enemy
While an alien can be deported for a number of violations ranging from simple immigration violation to serious criminal convictions, the most serious and unforgiving ground of deportability is aggravated felony, found at INA § 237(a)(2)(A)(iii).
The definition of aggravated felony has changed over the years and promises to evolve as immigration laws get tougher and tougher.
Aliens convicted of an aggravated felony may be permanently barred from any relief from deportation, bond during immigration proceedings as a result of INA § 236(c), which subject aggravated felons to mandatory detention, and certain forms of judicial review.
Aggravated felony is defined in the immigration laws at INA § 101(a)(43) as follows:
The term "aggravated felony" means -
(A) murder, rape, or sexual abuse of a minor;
(B) illicit trafficking in a controlled substance (as defined in section 802 of title 21), including a drug trafficking crime (as defined in section 924(c) of title 18);
(C) illicit trafficking in firearms or destructive devices (as defined in section 921 of title 18) or in explosive materials (as defined in section 841(c) of that title);
(D) an offense described in section 1956 of title 18 (relating to laundering of monetary instruments) or section 1957 of that title (relating to engaging in monetary transactions in property derived from specific unlawful activity) if the amount of the funds exceeded $10,000;
(E) an offense described in - (i) section 842(h) or (i) of title 18, or section 844(d), (e), (f), (g), (h), or (i) of that title (relating to explosive materials offenses); (ii) section 922(g)(1), (2), (3), (4), or (5), (j), (n), (o), (p), or (r) or 924(b) or (h) of title 18 (relating to firearms offenses); or (iii) section 5861 of title 26 (relating to firearms offenses);
(F) a crime of violence (as defined in section 16 of title 18, but not including a purely political offense) for which the term of imprisonment at least one year;
(G) a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment at least one year;
(H) an offense described in section 875, 876, 877, or 1202 of title 18 (relating to the demand for or receipt of ransom);
(I) an offense described in section 2251, 2251A, or 2252 of title 18 (relating to child pornography);
(J) an offense described in section 1962 of title 18 (relating to racketeer influenced corrupt organizations), or an offense described in section 1084 (if it is a second or subsequent offense) or 1955 of that title (relating to gambling offenses), for which a sentence of one year imprisonment or more may be imposed;
(K) an offense that - (i) relates to the owning, controlling, managing, or supervising of a prostitution business; (ii) is described in section 2421, 2422, or 2423 of title 18 (relating to transportation for the purpose of prostitution) if committed for commercial advantage; or (iii) is described in any of sections 1581-1585 or 1588-1591 of title 18 (relating to peonage, slavery, involuntary servitude, and trafficking in persons);
(L) an offense described in - (i) section 793 (relating to gathering or transmitting national defense information), 798 (relating to disclosure of classified information), 2153 (relating to sabotage) or 2381 or 2382 (relating to treason) of title 18; (ii) section 421 of title 50 (relating to protecting the identity of undercover intelligence agents); or (iii) section 421 of title 50 (relating to protecting the identity of undercover agents);
(M) an offense that - (i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; or (ii) is described in section 7201 of title 26 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000;
(N) an offense described in paragraph (1)(A) or (2) of section 1324(a) of this title (relating to alien smuggling), except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien's spouse, child, or parent (and no other individual) to violate a provision of this chapter
(O) an offense described in section 1325(a) or 1326 of this title committed by an alien who was previously deported on the basis of a conviction for an offense described in another subparagraph of this paragraph;
(P) an offense (i) which either is falsely making, forging, counterfeiting, mutilating, or altering a passport or instrument in violation of section 1543 of title 18 or is described in section 1546(a) of such title (relating to document fraud) and (ii) for which the term of imprisonment is at least 12 months, except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien's spouse, child, or parent (and no other individual) to violate a provision of this chapter;
(Q) an offense relating to a failure to appear by a defendant for service of sentence if the underlying offense is punishable by imprisonment for a term of 5 years or more;
(R) an offense relating to commercial bribery, counterfeiting, forgery, or trafficking in vehicles the identification numbers of which have been altered for which the term of imprisonment is at least one year;
(S) an offense relating to obstruction of justice, perjury or subornation of perjury, or bribery of a witness, for which the term of imprisonment is at least one year;
(T) an offense relating to a failure to appear before a court pursuant to a court order to answer to or dispose of a charge of a felony for which a sentence of 2 years' imprisonment or more may be imposed; and
(U) an attempt or conspiracy to commit an offense described in this paragraph.
The term applies to an offense described in this paragraph whether in violation of Federal or State law and applies to such an offense in violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years. Notwithstanding any other provision of law (including any effective date), the term applies regardless of whether the conviction was entered before, on, or after September 30, 1996.
The Most Common Aggravated Felony Convictions
While you should always consult with an immigration lawyer to determine whether your conviction is an aggravated felony, some of the more common convictions for an aggravated felony include:
• Sexual Abuse of a Minor
• Rape
• Drug trafficking
• Sale of Controlled Substance with Intent to Distribute
• Fraud with loss of more than $10,000
• theft offense with a sentence of one year
• Crime of Violence
TIP: As a practical matter, always avoid a conviction for an aggravated felony whether you are a green card holder or a non-green card holder.
A green card holder with an aggravated felony is ineligible for virtually most forms of relief from deportation, including asylum, cancellation of removal, adjustment of status, or voluntary departure.
Interestingly, a non-green card holder with an aggravated felony conviction may still be eligible for a waiver of deportation. However, you should consult an with an immigration lawyer to get a better assessment of your particular case.
What does a conviction for an aggravated felony mean?
The seriousness of being classified as an aggravated felon goes far beyond the stigma attached to such a label - it can mean permanent exile from the United States with no means of lawfully returning. Other consequences include:
- Ineligible to stop deportation. Many other deportable offenses allow a non-citizen to be able to apply for "waivers" or exceptions to deportation. But no exceptions are available to aggravated felons.
- Unable to apply for other legal immigration status. Many persons with other violations, including some criminal violations that make them deportable, remain eligible to apply for asylum, lawful permanent residence (green card), and other routes to legal status spelled out in the INA if they meet other qualifications. Aggravated felons are disqualified from almost every provision of the law that would enable them to legalize their status or to retain existing legal status, such as a green card. Aliens convicted of aggravated felonies after November 29, 1990, are also permanently barred from becoming naturalized citizens, because under INA § 101(f), they are unable to show "good moral character."
- Guaranteed to be detained. Aggravated felons, in addition to several other types of non-citizens, fall within the INA's "mandatory detention" provisions listed at INA § 236(c). This means that most aggravated felons will be detained until DHS is able to effect their deportation. The Supreme Court has upheld the constitutionality of INA § 236(c).
- Less access to immigration courts. For the most part, non-citizens can only be deported after an Immigration Judge conducts a hearing and signs an "order of removal (deportation)." However, the INA allows DHS to deport aggravated felons who are not green card holders "administratively," that is, deport the aggravated felon under agency rules and regulations without having to take the case before an Immigration Judge to allow the alien to plead his or her case.
- Less access to federal appeals courts. Aggravated felons are among a group of deportable non-citizens who have fewer legal rights to request a federal judge hear their case on appeal. However, they can still bring claims involving legal and constitutional issues.
- Permanent removal from the US. Most non-citizens who are deported from the US are not eligible to apply to return legally to the country for a period of from five to 20 years depending on their circumstances. But aggravated felons are permanently disqualified from ever returning to the US for any reason.
Crimes Involving Moral Turpitude
With the exception of aggravated felony, the other most common ground for deportation is a conviction for a crime involving moral turpitude. While the INA does not define what constitutes a crime involving moral turpitude, generally, these crimes involve offenses related to dishonesty, theft, and morality.
Interestingly, unlike aggravated felony, which is only a ground of deporability, conviction for a crime involving moral turpitude is both a ground of deportability (INA § 237(a)(2)(A)(i)) and a ground of inadmissibility (INA § 212(a)(2)(A)(i)(I)). Thus, an alien present in the United States can be deported for such a conviction, or an alien seeking admission in the United States can de denied admission on basis of such a conviction.
Who is Inadmissible? - Classes of Inadmissible Aliens
As explained above, there is a legal difference between being deportable and being inadmissible. A green card holder, for example, can be inadmissible upon his or her return to the United States if he or she travels abroad after being convicted of a certain crime. However, like deportable aliens, inadmissible aliens may be eligible for relief in forms of discretionary waivers.
So who is indmissible? The following classes of aliens are inadmissible and therefore ineligible to receive a visa or to be admitted into the United States:
• Alien with a communicable disease of public health significance, including AIDS (INA § 212(a)(1));
• Convicted of a crime involving moral turpitude (INA § 212(a)(2)(A)(i));
[NOTE: a specific sentence is not required. However, if a setence was imposed, under the "petty offense exception," INA § 212(a)(2)(A)(ii), if the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed), then he or she has not been convicted of a crime involving a moral turpitude).
• Convicted of multiple conviction, regardless of whether the conviction was in a single trial or whether the offenses arose from a single scheme of misconduct and regardless of whether the offenses involved moral turpitude, and where the total confinement period was more than five years (INA § 212(a)(2)(B);
• Controlled substance trafficker (INA § 212(a)(2)(C));
• Coming to the United States solely to engage in Prostitution or other Commercial Vice (INA § 212(a)(2)(D));
• Aliens who pose a security risk (INA § 212(a)(3)(A));
• Is a terrorist or has engaged in terrorist activities (INA § 212(a)(3)(B));
• Participants in Nazi persecution or genocide (INA § 212(a)(3)(E));
• Alien deemed to be a public charge (INA § 212(a)(4));
• Aliens present without being inspected or paroled (INA § 212(a)(6)(A));
• Aliens who seek to procure an immigration benefit through use of fraud or misrepresentation (INA § 212(a)(6)(C));
• Alien smugglers (INA § 212(a)(6)(E));
• Immigrants and non-immigrants not in possession of a valid entry document (INA § 212(a)(7));
• Aliens who were previously removed from the United States (INA § 212(a)(9));
• Polygamists (INA § 212(a)(10)(A));
• Unlawful voters (INA § 212(a)(10)(D));
[This is not an exhaustive list of grounds of inadmissibility. See INA § 212 for the exact language of all of the grounds of inadmissibility]
Can I be Saved? - Relief from Deportation and Removal
Now that you are better acquainted about basic immigration law and may be able to see if any of these issues relate to you, click here if you wish to consult with our immigration lawyers to see if there may be any relief available to you.
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