Six Major Categories of Inadmissibility: Immigration Outline

Six Major Categories of Inadmissibility:

Health § 212(a)(1):

Communicable diseases of public health significance as determined by Health and Human Services. Currently 8. TB, Leprosy, controversially HIV).  Mental or behavioral illness threatening to public safety, drug abusers. Also, vaccination requirements.

Note: fraud an issue- no blood tests at ports of entry.

Criminal Grounds § 212(a)(2):

Crimes of Moral Turpitude = inadmissible

Moral Turpitude exception if crime was committed under age of 18 and 5 years before application for visa.

Drug crimes = inadmissible (exceptions don’t apply if related to drug trade)

Multiple crimes of any kind w/total max sentences >5 years (exceptions don’t apply)

[See practice probs for how this § works]

Agg felony can disqualify you for a waiver.

Security and Related Grounds § 212(a)(3) [below]

Public Charge (443-49, 451) § 212(a)(4):

Accounts for 75-90k initial refusals of properly filed visa apps. 36K of them overturned with further evidence.

Broad discretion of administrative officer: “any alien who in the opinion of  the consular officer or AG is likely at any time to be public charge” (although factors to consider listed)

Also INA § 237(a)(5): Deportation if become PC five years from entry from causes not affirmatively shown to have arisen since entry.

Affidavits of Support:

Matter of Kohama (1978): Facts: Parents apply for LPR status presented affidavits of support from their children as proof the would not become PC. INS director held  affidavits to be promissory and not binding and thus insufficient proof that parents wouldn’t be PCs

Holding: Affidavits of support may be sufficient evidence, if facts (here history of sending money) corroborate even though aff. not legally binding

1996 Amendments: PRWORA/IIRIRA made affidavits binding and required for each immigrant entering via family based preference (or employer if relative) even if immigrant’s own assets would satisfy consular officer.

Sponsor must show ability to support sponsored immigrants + own household at 125% poverty level.

Affidavit Enforcement Period: 40 SS quarters (10 years)

Note: Immigrants can get any kind of public benefits for 5 years by 1996 welfare reforms (plus additional deeming period usually precludes for another 5 years -40 quarters)

However: If immigrant received means tested benefits from state or local gov (may be lower/more flex than fed), gov may sue sponsors to recoup.

Sponsored immigrant can also sue sponsor for support! § 213A(b),(e)

Labor Certification issues: § 212 (a)(5)

Illegal Entry/Fraud/Smuggling § 212(a)(6)

If reason to believe applicant @ port is covered by this ground or 212(a)(7) (lack of proper docs), expedited removal as of 1996 (see 235(b)(1)(A)(i)) 2004 expanded to aliens already w/in US

Misrepresentation requires affirmative act by alien (oral, written, submitting evidence w/false statements)

Omission/silence not misrepresentation.

Must be before, US official, made in alien’s own application, made by alien, attorney or agent.

Willfully: must be done knowingly and intentionality.

Re-entry bars  § 212(a)(9)(B)

Illegal entrant unlawfully present for 180 days to a is barred for 3 years if leave voluntarily

Over one year=10 year bar.

Very difficult to get waivers.

If ordered removed after being here illegally for over a year, and then you try to re-enter, you’re barred for life.

Sample Problems:

Problem # 3: p 432:

LPR for 25 yrs-DR native. Leaves for 2 weeks; returns. 19yrs ago pled guilty to statutory rape-suspended sentence, no jail. Conviction not a ground at the time (could be now!) 3 US kids and US spouse.

Inadmissible?

Stat. rape not covered under listed crimes (although sexual abuse of minor is agg felony- so could be deportable) (also might have problem getting a waiver of inadmissibility as a result)

Crime of Moral turpitude? Problem with looseness of definition. But if so.

212(h) waiver for crimes. Need LPR citizen immediate family but also extreme hardship- need more info.

Possible to apply moral turpitude exception if crime committed under 18 (although unlikely given it was stat. rape) and 5 years before applying for admission

General questions to ask: 1) Is this an admission; 2) Do any inadmissibility grounds apply; 3) are there any exceptions OR discretionary waivers.