Inadmissibility – INA § 212(a) : Immigration Outline

Inadmissibility – INA § 212(a)

The Death of Fleuti

Fleuti (1963) said if an LPR had an “innocent, casual and brief” absence from the U.S., his return was not seeking admission (and he gets max due process). Post-1996, this is not true – no matter the absence, even an LPR is seeking admission every time he re-enters.

However, the BIA ruled returning LPRs are presumed NOT applicants for admission and the govt has the burden of establishing an exception in § 101(a)(13)(C) applies.

These include having committed a crime in the U.S. and having engaged in illegal activity outside the U.S.

Crimes – § 212(a)(2)

Aggravated felonies (see below) are NOT an express basis for inadmissibility under § 212, but many of the same crimes will fall under a provision of § 212(a)(2). Also, commission of an AF can disqualify a person from an inadmissibility waiver.

Most crimes of moral turpitude and drug crimes are grounds for inadmissibility; also prostitutes, traffickers, money launderers.

Security Grounds – Spies, coup plotters, terrorists, totalitarians. See § 212(a)(3) and Deportability Grounds and Removal Procedures for more.

Immigration Control Grounds

Fraud and willful misrepresentation of material facts –  § 212 (a)(6)(C)(i). Reason to believe an applicant for admission at the border is covered by this places the person in expedited removal.

If inadmissible under this, must show extreme hardship to citizen family for waiver of inadmissibility. Matter of Cervantes-Gonzalez (1999)

Bars to re-entry for those formally excluded or deported. § 212(a)(9)(A)

Bars for those with a prior unlawful stay, even without a removal order – § 212(a)(9)(B)

Noncitizen unlawfully present 180 days – 1 year who voluntarily departs: Three year bar on admission

Noncitizen unlawfully present 1 year or more who vol departs or is removed: Ten year bar on admission

Definition of “unlawful presence”: § 212(a)(9)(B)(ii) – covers EWIs and overstays, but not necessarily those who violate terms of nonimmigrant status.

If you’re unlawfully present (like an overstay) but don’t leave, you can often still adjust to LPR and not have the bars kick in.

The Public Charge Provision

Becoming a public charge after entry from causes not shown to have arises since entry is technically a deportation ground (§ 237(a)(5)), but only if the public agency tried to get reimbursement and didn’t. Very rare for deportations to happen this way.

However, still a major ground of inadmissibility. § 212(a)(4)

Very broad discretion – anyone who “in the opinion of the consular officer or the AG is likely at any time to become a public charge.”

In 1999, this ground accounted for almost 75K of the 90K initial refusals of properly filed immigrant visa applications, though in over 36K cases, the refusal was overcome by further evidence of financial support (sponsors).

Now affidavits of support are legally enforceable and mandated for immediate relatives or under the family-based preferences, even if the immigrant’s own assets or earning potential are OK. Exceptions for widow(er)s and battered spouses and children. If not mandatory, officer makes discretionary decision based on whatever evidence there is, as in Matter of Kohama (1978)

Sponsor must support household plus all immigrants at 125% of poverty

Enforceable until immigrant gets 40 Soc Sec quarters, naturalizes, dies, or leaves the U.S. Divorce does not trump obligation.

Refugees are exempt from the public charge provision.

Public Health – § 212(a)(1)(A)(i)

Noncitizens with communicable diseases “of public health significance” are inadmissible. This mainly affects those with active TB and HIV/AIDS.

Book doesn’t mention waivers, but they are often given for HIV+ folks with ongoing treatment, insurance, etc. or with shorter stays.