FUNDAMENTALS OF IMMIGRATION LAW

Charles A. Wiegand, III

Former Immigration Judge, Oakdale, Louisiana

Revised February 2016

Sarah Cade, Staff Attorney, Board of Immigration Appeals

Judith Pond, Attorney Advisor, OCIJ

Vanessa Woodman de Lazo, Attorney Advisor, OCIJ

Fundamentals of Immigration Law i

TABLE OF CONTENTS

I. Admission ...................................................................................................................... 7

A. Applicants for admission ........................................................................................................7

B. Admission or admitted ...........................................................................................................7

C. Parole and crewmen ..............................................................................................................8

D. History lesson ........................................................................................................................8

E. Lawful permanent residents ...................................................................................................8

II. Inspection and credible fear review ................................................................................ 9

A. Inspection ..............................................................................................................................9

B. Withdrawal of application for admission .............................................................................. 10

C. Summary removal ................................................................................................................ 10

D. Stowaways .......................................................................................................................... 10

E. Credible Fear Interview ........................................................................................................ 10

F. Inspection of other aliens ..................................................................................................... 11

G. Removal of aliens inadmissible on security and related grounds ........................................... 11

III. Bond and Custody under IIRIRA .................................................................................... 12

A. Background ......................................................................................................................... 12

B. Arriving aliens ...................................................................................................................... 12

C. Detention of criminal aliens ................................................................................................. 12

D. Detention of aliens certified as terrorists - Section 236A of the Act........................................ 15

E. Aliens subject to expedited removal ..................................................................................... 16

F. All other, non-criminal, non-terrorist, aliens ......................................................................... 17

G. Procedure in bond proceedings ............................................................................................ 19

H. Requests for additional or subsequent bond redeterminations ............................................. 20

I. Appeals of bond decisions .................................................................................................... 21

IV. Grounds of inadmissibility in removal proceedings .................................................... 21

A. Health-related grounds - Section 212(a)(1) of the Act ............................................................ 21

B. Crime involving moral turpitude (“CIMT”) ............................................................................. 22

C. Controlled substance offenses .............................................................................................. 22

D. Multiple criminal convictions ............................................................................................... 22

E. Trafficking in controlled substances ...................................................................................... 23

F. Prostitution ......................................................................................................................... 24

G. Procurers & importers of prostitutes .................................................................................... 24

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H. Commercialized vice ............................................................................................................ 24

I. Aliens who asserted immunity from prosecution - Section 212(a)(2)(E) ................................. 25

J. Espionage or sabotage ......................................................................................................... 25

K. Any unlawful activity ........................................................................................................... 26

L. Overthrow of the Government of the U.S. ............................................................................ 26

M. Terrorist activities ................................................................................................................ 26

N. Adverse effects on foreign policy .......................................................................................... 30

O. Communist or totalitarian party membership ....................................................................... 30

P. Nazi persecution .................................................................................................................. 31

Q. Genocide or Acts of Torture or Extrajudicial Killing ................................................................ 31

R. Public Charge ....................................................................................................................... 31

S. No labor certification ........................................................................................................... 32

T. Foreign medical graduates ................................................................................................... 32

U. Uncertified foreign health-care workers ............................................................................... 33

V. Illegal entrants and immigration violators ............................................................................ 33

W. Not in possession of valid, unexpired documents .................................................................. 35

X. Not in possession of valid entry documents, such as visa ...................................................... 35

Y. Immigrants who are permanently ineligible for citizenship - Section 212(a)(8)(A) .................. 36

Z. Draft evaders ....................................................................................................................... 36

AA. Aliens previously removed or unlawfully present .............................................................. 36

BB. Polygamists ..................................................................................................................... 39

CC. Guardian required to accompany helpless alien ................................................................ 39

DD. International child abductors ........................................................................................... 40

EE. Unlawful voters ............................................................................................................... 40

FF. Former citizens who renounced citizenship to avoid taxation ............................................ 40

V. Grounds of deportability in removal proceedings .......................................................... 40

A. Inadmissible at time of entry or adjustment of status ........................................................... 40

B. Present in violation of law .................................................................................................... 41

C. Violated nonimmigrant status .............................................................................................. 41

D. Violators of conditions of entry ............................................................................................ 41

E. Termination of conditional permanent residence .................................................................. 41

F. Alien smuggling ................................................................................................................... 41

G. Marriage fraud ..................................................................................................................... 42

H. CIMT w/in 5 years of admission ............................................................................................ 42

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I. Two CIMTs ........................................................................................................................... 44

J. Convicted of an aggravated felony ........................................................................................ 45

K. Convicted of high speed flight .............................................................................................. 46

L. Failure to register as a sex offender ...................................................................................... 46

M. Controlled substance conviction ........................................................................................... 46

N. Drug abusers and addicts ..................................................................................................... 47

O. Firearm offenses .................................................................................................................. 47

P. Miscellaneous crimes ........................................................................................................... 51

Q. Crimes of domestic violence, stalking, and child abuse .......................................................... 51

R. Violators of protection orders .............................................................................................. 53

S. Failure to register................................................................................................................. 53

T. Document fraud ................................................................................................................... 53

U. Falsely claiming citizenship ................................................................................................... 54

V. National security and related grounds .................................................................................. 54

W. Terrorist activities ................................................................................................................ 54

X. Adverse foreign policy consequences ................................................................................... 55

Y. Assisted in Nazi persecution or engaged in genocide ............................................................. 55

Z. Public Charge ....................................................................................................................... 55

AA. Unlawful voters ............................................................................................................... 55

BB. Deportation of certain nonimmigrants prohibited without approval ................................. 56

CC. Waiver under section 237(c) for special immigrants .......................................................... 56

VI. Procedure in removal proceedings ............................................................................ 56

A. Notice to the alien ............................................................................................................... 56

B. Service of the NTA ............................................................................................................... 59

C. Cancellation of the NTA, motions to dismiss and remand, and termination by the IJ .............. 61

D. Hearing in removal proceedings ........................................................................................... 62

E. Failure to appear - in absentia hearings ................................................................................ 70

F. Stipulated removal............................................................................................................... 74

G. Methods of removal not involving an IJ ................................................................................ 74

VII. Criminal Convictions ................................................................................................. 75

A. Definitions ........................................................................................................................... 75

B. Categorical Approach ........................................................................................................... 82

Modified Categorical Approach .................................................................................................... 83

C. Controlled Substance Offenses ............................................................................................. 89

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VIII. Aggravated felonies ................................................................................................. 91

A. Background ......................................................................................................................... 91

B. Murder, rape, or sexual abuse of a minor ............................................................................. 91

C. Illicit trafficking in any controlled substance ......................................................................... 93

D. Illicit trafficking in firearms or destructive devices ................................................................ 94

E. Laundering of monetary instruments .................................................................................... 95

F. Explosive materials and firearms offenses ............................................................................ 95

G. Crimes of violence ................................................................................................................ 97

H. Theft, burglary, and receipt of stolen property.................................................................... 102

I. Demand for or receipt of ransom ....................................................................................... 106

J. Child pornography ............................................................................................................. 106

K. Racketeering or gambling ................................................................................................... 107

L. Prostitution, slavery, or involuntary servitude .................................................................... 107

M. Treason or transmitting national defense information ........................................................ 107

N. Fraud or Deceit with Loss of $10,000 or more ...................................................................... 107

O. Alien smuggling ................................................................................................................. 109

P. Illegal reentry .................................................................................................................... 109

Q. Falsely making, forging, counterfeiting, mutilating, or altering a passport ........................... 109

R. Failure to appear for service of sentence ............................................................................ 110

S. Commercial bribery, counterfeiting, forgery, or trafficking in vehicles ................................. 110

T. Obstruction of justice, perjury, or bribery of a witness ........................................................ 110

U. Failure to appear before a court pursuant to a court order .................................................. 111

V. An attempt or conspiracy to commit any such act described above ..................................... 111

W. Limitations by date of conviction, etc. ................................................................................ 111

IX. Relief from Removal ............................................................................................... 112

A. Background and Security Investigations in Proceedings Before an IJ .................................... 112

B. Relief and the Exercise of Discretion ................................................................................... 113

C. Voluntary departure - Section 240B .................................................................................... 117

D. Withdrawal of application for admission ............................................................................ 123

E. Citizenship ......................................................................................................................... 124

F. Cancellation of removal under sections 240A(a) and 240A(b) .............................................. 126

G. A waiver under former section 212(c) ................................................................................. 137

H. Asylum .............................................................................................................................. 141

I. Withholding of removal - Section 241(b)(3)......................................................................... 158

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J. Case law common to both asylum and withholding of removal ........................................... 160

K. The Convention Against Torture ......................................................................................... 171

L. Adjustment of status - Section 245 of the Act and 8 C.F.R. § 1245.1, et seq. ......................... 179

M. Waivers ............................................................................................................................. 188

N. Nicaraguan Adjustment and Central American Relief Act (NACARA) .................................... 203

O. Advance parole .................................................................................................................. 208

X. Evidence .................................................................................................................... 208

A. In general .......................................................................................................................... 208

B. Burden of proof and presumptions ..................................................................................... 209

C. Documents ........................................................................................................................ 213

D. Testimony .......................................................................................................................... 219

E. Hearsay ............................................................................................................................. 221

F. Evidence from an application to adjust an alien’s status under section 210 of the Act .......... 221

G. The exclusionary rule in immigration proceedings and motions to suppress ........................ 221

H. The doctrine of equitable estoppel ..................................................................................... 231

I. The doctrine of collateral estoppel ..................................................................................... 232

J. Classified information ........................................................................................................ 234

K. Protective orders ............................................................................................................... 235

L. Constitutional issues .......................................................................................................... 237

M. Administrative notice ......................................................................................................... 237

N. Items which are not evidence ............................................................................................. 239

O. An Immigration Judge’s duties regarding evidence .............................................................. 239

XI. Good moral character (“GMC”) - Section 101(f) of the Act ....................................... 239

A. Requirement of Good Moral Character (“GMC”) ................................................................. 239

B. Persons lacking GMC as listed in section 101(f) ................................................................... 239

C. Catch-all provision of section 101(f) .................................................................................... 243

XII. Temporary protected status (TPS) - Section 244 ...................................................... 244

A. A grant of TPS waives certain grounds of inadmissibility or deportability ............................. 244

B. Designation by the Attorney General .................................................................................. 244

C. Effective period of designation ........................................................................................... 245

D. Jurisdiction to consider applications ................................................................................... 245

E. Aliens eligible for TPS ......................................................................................................... 246

F. Withdrawal of TPS - Section 244(c)(3) of the Act ................................................................. 249

G. TPS and cancellation of removal under § 240A(a) ................................................................ 250

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H. Benefits and status during TPS - Section 244(f) of the Act .................................................... 250

I. Countries that have been designated for TPS ...................................................................... 250

XIII. Motions to reopen, reconsider, and remand ........................................................... 252

A. Distinguishing Between Types of Motions .......................................................................... 252

B. Motion to reconsider in general ......................................................................................... 252

C. Motions to reopen in general ............................................................................................. 253

D. Motion to reopen to apply for asylum or withholding of removal ........................................ 255

E. Motion to reopen to rescind an order rendered in absentia ................................................ 255

F. A motion to reopen by a battered spouse, parent, or child .................................................. 258

G. A motion to reopen or reconsider based upon a claim of ineffective assistance of counsel ... 259

H. Motion to reopen to apply for cancellation of removal under section 240A of the Act ......... 261

I. Where to file the motion .................................................................................................... 261

J. Sua sponte reopening or reconsideration............................................................................ 262

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I. Admission

A. Applicants for admission

1. Section 235(a)(1) of the Act provides that “An alien present in the United States who has not

been admitted or who arrives in the United States (whether or not at a designated port of

arrival and including an alien who is brought to the United States after having been interdicted

in international or United States waters) shall be deemed for purposes of this Act an applicant

for admission.”

2. The term “arriving alien” means an alien who seeks admission to or transit through the United

States, as provided in 8 C.F.R. § 1235.1, at a port of entry, or an alien who is interdicted in

international or United States waters and brought into the United States by any means,

whether or not to a designated port-of-entry, and regardless of the means of transport. 8

C.F.R. § 1001.1(q).

3. An arriving alien remains such even if paroled pursuant to § 212(d)(5) of the Act. 8 C.F.R. §

1001.1(q). An alien who arrives in the U.S. pursuant to a grant of advance parole is an

“arriving alien” as that term is defined in the regulations. Matter of Oseiwusu, 22 I&N Dec.

19 (BIA 1998).

4. An alien who leaves the U.S. to seek refugee status in Canada, and then returns to the U.S.

after the application was denied in Canada, is deemed to be seeking admission to the U.S.

Therefore, such an alien is deemed to be an arriving alien. Matter of R-D-, 24 I&N Dec. 221

(BIA 2007).

B. Admission or admitted

1. Section 101(a)(13)(A) of the Act, as amended by section 301 of the IIRIRA, provides that the

terms “admission” and “admitted” mean the lawful entry of an alien into the U.S. after

inspection and authorization by an immigration officer.

a. An alien’s admission is “lawful” if it is “procedurally regular.” Matter of Quilantan,

25 I&N Dec. 285, 290 (BIA 2010).

b. However, an alien who was allowed to enter after fraudulently claiming to be a United

States citizen was not admitted. See Matter of Pinzon, 26 I&N Dec. 189 (BIA 2013);

Matter of Areguillin, 17 I&N Dec. 308, 309 n.3 (BIA 1980).

2. An alien who has not been admitted to the United States is subject to the inadmissibility

grounds under § 212(a) of the Act, 8 U.S.C. § 1182(a). Pursuant to § 237(a), 8 U.S.C. §

1227(a), an alien (including an alien crew member) in and admitted to the United States is

subject to the deportation grounds under that section. Under § 237(a)(1)(A), deportable

aliens includes any alien who was inadmissible at the time of entry or adjustment of status.

3. The Board held that an alien who initially entered the U.S. without inspection, but whose

conviction for an aggravated felony was subsequent to her adjustment of status to that of a

lawful permanent resident under § 245A of the Act, is deportable under § 237(a)(2)(A)(iii) as

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an alien who was convicted of an aggravated felony “after admission.” Matter of Rosas, 22

I&N Dec. 616 (BIA 1999).

C. Parole and crewmen

1. An alien who is paroled under § 212(d)(5) or permitted to land temporarily as a crewman shall

not be considered to have been admitted. INA § 101(a)(13)(B).

D. History lesson

1. Before the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of

1996 (“IIRIRA”), the decision as to whether an alien was subject to deportation proceedings

or exclusion proceedings was based on whether or not the alien had made an “entry” into the

U.S. An alien who had made an entry was entitled to a deportation hearing and the greater

procedural safeguards it provided. An alien who had not made an entry was placed in

exclusion proceedings. Former section 101(a)(13) of the Act defined entry as “any coming of

an alien into the U.S. from a foreign port or place.” The Board of Immigration Appeals

(“Board”) formulated a more precise definition of entry so as to better distinguish between

exclusion and deportation in Matter of Pierre, 14 I&N Dec. 467 (BIA 1973), Matter of

Phelisna, 18 I&N Dec. 272 (BIA 1982), and Matter of G-, 20 I&N Dec. 764 (BIA 1993). All

of this came to be known as “the entry doctrine.”

2. An exception also arose for lawful permanent residents (“LPR”s) returning to the U.S. after a

brief, casual, and innocent departure. The Supreme Court held that such a departure would

not constitute an “entry” within the meaning of former section 101(a)(13). Rosenberg v.

Fleuti, 374 U.S. 449 (1963). This became known as the “Fleuti Doctrine.”

3. These two doctrines caused a great deal of litigation over the issue of whether certain aliens

were properly placed in exclusion proceedings. They were rather time consuming and, since

they dealt with the issue of whether or not the alien was in the proper proceeding, delayed the

addressing of the ultimate issues in the cases, i.e., the issues of excludability and eligibility for

relief.

4. In the IIRIRA, Congress sought to simplify things by creating removal proceedings which are

applicable to aliens admitted to the United States, aliens applying for admission, and aliens

present in the United States without being inspected and admitted. It also made the difference

dependent simply on whether the alien had been admitted or not.

E. Lawful permanent residents

1. Section 101(a)(13)(C) provides that an alien lawfully admitted for permanent residence shall

not be regarded as seeking an admission into the U.S. unless the alien:

a. has abandoned or relinquished LPR status [INA § 101(a)(13)(C)(i)];

b. has been absent from the U.S. for a continuous period in excess of 180 days [INA §

101(a)(13)(C)(ii)];

c. has engaged in illegal activity after departing the U.S. [INA § 101(a)(13)(C)(iii)];

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d. has departed from the U.S. while under legal process seeking removal of the alien from

the U.S., including removal proceedings and extradition proceedings [INA §

101(a)(13)(C)(iv)];

e. has committed an offense identified in § 212(a)(2), unless since such offense the alien

has been granted relief under §§ 212(h) or 240A(a) [INA § 101(a)(13)(C)(v)];

f. is attempting to enter at a time or place other than as designated by immigration officers

or has not been admitted to the U.S. after inspection and authorization by an immigration

officer [INA § 101(a)(13)(C)(vi)].

(1) The Board has held that the Fleuti doctrine did not survive the amendment of §

101(a)(13) of the Act by IIRIRA. Matter of Collado, 21 I&N Dec. 1061 (BIA

1998). In that same decision, the Board held that an LPR described in §

101(a)(13)(i)-(vi) is to be regarded as “seeking an admission into the U.S. for

purposes of the immigration laws,” without further inquiry into the nature and

circumstances of a departure from and return to the U.S. See also Othi v.

Holder, 734 F.3d 259 (4th Cir. 2014).

2. In order to establish that a returning lawful permanent resident alien is to be treated as an

applicant for admission to the United States, the DHS has the burden of proving by clear and

convincing evidence that one of the six exceptions to the general rule for lawful permanent

residents set forth at § 101(a)(13)(C) applies. Matter of Rivens, 25 I&N Dec. 623 (BIA 2011).

The DHS can meet that burden at the time of the removal proceedings, and need not have the

evidence at the time of the parole decision. Matter of Valenzuela-Felix, 26 I&N Dec. 53

(BIA 2012).

II. Inspection and credible fear review

A. Inspection

1. All aliens (including alien crewmen) who are applicants for admission or otherwise

seeking admission or readmission to or transit through the U.S. shall be inspected by

immigration officers. INA § 235(a)(3).

2. Parolees and aliens formerly considered to have entered without inspection. Section

235(a)(1) of the Act provides that an alien present in the U.S. who has not been

admitted or who arrives in the U.S. (whether or not at a designated port of arrival and

including an alien who is brought to the U.S. after having been interdicted in

international or U.S. waters) shall be deemed an applicant for admission.

3. Statements. An applicant for admission may be required to state under oath any

information sought by an immigration officer regarding the purposes and intentions

of the applicant in seeking admission to the U.S., including the applicant's intended

length of stay and whether the applicant intends to remain permanently or become a

U.S. citizen, and whether the applicant is inadmissible. INA § 235(a)(5).

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B. Withdrawal of application for admission

1. An alien applying for admission may, in the discretion of the Attorney General and at

any time, be permitted to withdraw the application for admission and depart

immediately from the U.S. INA § 235(a)(4).

C. Summary removal

1. An immigration officer shall order an alien removed from the United States without

further hearing or review if: (1) the alien is not an alien described at § 235(b)(1)(F);

and (2) the alien is arriving in the United States; or (3) the alien is described at §

235(b)(1)(A)(iii); and (4) the alien is inadmissible under § 212(a)(6)(C) or 212(a)(7);

unless (5) the alien indicates either an intention to apply for asylum under § 208 or a

fear of persecution. INA § 235(b)(1)(A)(i).

D. Stowaways

1. An arriving alien who is a stowaway is not eligible to apply for admission or to be

admitted and shall be ordered removed upon inspection by an immigration officer

unless the alien indicates an intention to apply for asylum or a fear of persecution.

INA § 235(a)(2).

E. Credible Fear Interview

1. An alien who indicates either an intention to apply for asylum

under § 208 or a fear of

persecution shall be referred for an interview by an asylum officer. INA §

235(b)(1)(B)(ii).

a. If the officer determines at the time of the interview that an alien has a credible

fear of persecution, the alien shall be detained for further consideration of the

application for asylum. INA § 235(b)(1)(A)(ii).

(1) A credible fear of persecution means that there is a significant

possibility, taking into account the credibility of the statements made

by the alien in support of his claim and such other facts as are known

to the officer, that the alien could establish eligibility for asylum

under § 208. INA § 235(b)(1)(B)(v).

b. If the officer determines that the alien does not have a credible fear of

persecution, the officer shall order the alien removed from the U.S. without

further hearing or review. INA § 235(b)(1)(B)(iii)(I). The officer shall

prepare a written record of a determination. INA § 235(b)(1)(B)(iii)(II).

Such record shall include a summary of the material facts as stated by the

applicant, such additional facts (if any) relied upon by the officer, and the

officer's analysis of why the alien has not established a credible fear of

persecution. A copy of the officer's interview notes shall be attached to the

written summary. The Attorney General shall provide by regulation and upon

the alien’s request for prompt review by an IJ of the determination that the alien

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does not have a credible fear of persecution. INA § 235(b)(1)(B)(iii)(III).

Such review shall include an opportunity for the alien to be heard and

questioned by the IJ either in person or by telephonic or video connection.

Review shall be concluded, if possible, within 24 hours, but in no case later than

7 days after the date of the asylum officer’s determination. Such alien shall be

detained pending a final determination of credible fear of persecution and, if

found not to have such a fear, until removed. INA § 235(b)(1)(B)(iii)(IV).

F. Inspection of other aliens

Except for an alien described above [inadmissible under § 212(a)(6)(C) or 212(a)(7) of the

Act], an alien who is a crewman, or an alien who is a stowaway, if the examining officer

determines that an alien seeking admission is not clearly and beyond a doubt entitled to be

admitted, the alien shall be detained for a proceeding under § 240. INA §

235(b)(2)(A)-(B).

1. Aliens arriving from foreign contiguous territory. In the case of an alien arriving on

land (whether or not at a designated port of arrival) from a foreign territory

contiguous to the U.S., the Attorney General may return the alien to that territory

pending a proceeding under § 240 of the Act. INA § 235(b)(2)(C).

2. Challenge of decision. The decision of the examining immigration officer, if

favorable to the admission of any alien, shall be subject to challenge by any other

immigration officer and such challenge shall operate to take the alien whose privilege

to be admitted is so challenged, before an IJ for a proceeding under § 240. INA §

235(b)(3).

G. Removal of aliens inadmissible on security and related grounds

1. If an immigration officer or an IJ suspects that an arriving alien may be inadmissible

under § 212(a)(3)(A) [other than clause (ii)], (B), or (C), the officer or judge shall

order the alien removed, report the order of removal to the Attorney General, and not

conduct any further inquiry or hearing until ordered by the Attorney General. INA §

235(c)(1). Section 235(c)(3) provides that the alien or the alien’s representative

may submit a written statement and additional information for consideration by the

Attorney General.

2. If the Attorney General is satisfied on the basis of confidential information that the

alien is inadmissible under the portions of § 212(a)(3) listed above and after

consulting with appropriate security agencies concludes that disclosure of the

information would be prejudicial to the public interest, safety, or security, the

Attorney General may order the alien removed without further inquiry or hearing by

an IJ. INA § 235(c)(2)(B). If the Attorney General does not order the alien

removed, the Attorney General shall specify the further inquiry or hearing that shall

be conducted in the case. INA § 235(c)(2)(C).

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III. Bond and Custody under IIRIRA

A. Background

1. Section 236(a) of the Act provides that on a warrant issued by the Attorney General,

an alien may be arrested and detained pending a decision on whether the alien is to be

removed from the U.S. In a custody redetermination under § 236(a), where an alien

must establish to the satisfaction of the IJ that he or she does not present a danger to

others, a threat to national security, or a flight risk, the IJ has wide discretion in

deciding the factors that may be considered. Matter of Guerra, 24 I&N Dec. 37

(BIA 2006).

2. Transition Period Custody Rules. The TPCR were a temporary “stop-gap” measure

invoked after the IIRIRA’s enactment to address the lack of detention space

necessary to immediately implement the mandatory detention rule of § 236(c)(1).

Under the TPCR, IJs had retained discretionary authority to release certain criminal

aliens upon a demonstration that they did not present a danger to the community or a

flight risk. That discretion ended with the TPCR’s expiration on October 8, 1998,

and aliens released after that date are not covered by the TPCR’s provisions. You

may still see references to Transition Period Custody Rules. Case-law from this

period regarding danger to the safety of persons or property remains generally

applicable.

B. Arriving aliens

1. An IJ has no authority to redetermine or set bond for an arriving alien, including

individuals who are returning pursuant to a grant of advance parole. 8 C.F.R.

§ 1003.19(h)(1)(i)(B); Matter of Oseiwusu, 22 I&N Dec. 19 (BIA 1998).

C. Detention of criminal aliens

1. Section 236(c)(1) of the Act provides that the Attorney General shall take into

custody any alien who is inadmissible by reason of having committed any offense

covered in § 212(a)(2), is deportable by reason of having committed any offense

covered in § 237(a)(2)(A)(ii), (A)(iii), (B), (C), or (D), is deportable under §

237(a)(2)(A)(i) on the basis of an offense for which the alien has been sentenced to a

term of imprisonment of at least 1 year, or is inadmissible under § 212(a)(3)(B) or

deportable under § 237(a)(4)(B) when the alien is released, without regard to whether

the alien is released on parole, supervised release, or probation, and without regard to

whether the alien may be arrested or imprisoned again for the same offense.

2. Section 236(c)(2) provides that the Attorney General may release an alien described

above only if the Attorney General decides pursuant to 18 U.S.C. § 3521 that release

of the alien from custody is necessary to provide protection to a witness, a potential

witness, a person cooperating with an investigation into major criminal activity, or an

immediate family member or close associate of a witness, potential witness, or

person cooperating with such an investigation, and the alien satisfies the Attorney

General that the alien will not pose a danger to the safety of other persons or of

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property and is likely to appear for any scheduled proceeding. A decision relating to

such release shall take place in accordance with a procedure that considers the

severity of the offense committed by the alien.

3. Constitutionality – The Supreme Court upheld the constitutionality of § 236(c)(1) of

the Act. Demore v. Kim, 538 U.S. 510 (2003).

4. Detention hearings after final orders of removal in the Ninth Circuit:

a. The Ninth Circuit has held that authorization for detention under INA

§ 236(c) ends when the Board of Immigration Appeals affirms the removal

order. Casas-Castrillon v. DHS, 535 F.3d 942 (9th Cir. 2008). “Thereafter,

the Attorney General’s detention authority rests with [the general

discretionary authority to detain under § 236(a)] until the alien enters his

‘removal period,’ which occurs only after we have rejected his final petition

for review or his time to seek such review expires.” Id. at 948. The Ninth

Circuit further ruled that “the government may not detain a legal permanent

resident . . . for a prolonged period without providing him a neutral forum in

which to contest the necessity of his continued detention.” Id. at 949. In

such hearings, DHS bears the burden of establishing that continued detention

is warranted.

b. In Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011), the Ninth Circuit held

that an individual facing prolonged immigration detention under § 241(a)(6),

is entitled to be released on bond unless the government establishes the

individual is a flight risk or a danger to the community. The court reasoned

that individuals detained under § 241(a)(6) are entitled to the same procedural

safeguards against prolonged detention as individuals detained under §

236(a), including an individualized bond hearing before an IJ. Id. at 1085.

The court acknowledged that it was extending its holding in Casas-Castrillon

v. DHS, 535 F.3d 942 (9th Cir. 2008).

5. “When released”

a. Mandatory detention only applies if the alien is taken into DHS custody “when

released.” Otherwise, an alien is entitled to an individual bond hearing.

b. The Board has ruled that DHS need not take an alien into custody immediately

after a “release” from incarceration. Matter of Rojas, 23 I&N Dec. 117 (BIA

2001). See also Hosh v. Lucero, 680 F.3d 375 (4th Cir. 2012). However, this

view has been criticized by several federal district courts. See, e.g.,

Araujo-Cortes v. Shanahan, 35 F.Supp.3d 533 (S.D.N.Y. 2014); Valdez v.

Terry, 874 F. Supp. 2d 1262 (D.N.M. 2012); see also Castaneda v. Souza, 769

F.3d 32 (1st Cir. 2014), withdrawn, reh’g en banc granted, (Jan. 23, 2015).

c. The release must be directly tied to a basis of detention under §

236(c)(l)(A)-(D). See Matter of Garcia-Arreola, 25 I&N Dec. 267 (BIA

2010); see also Saysana v. Gillen, 590 F.3d 7 (1st Cir. 2009).

Fundamentals of Immigration Law 14

d. The Board has also held that the use of the words “release” or “released” in §

303 of the IIRIRA consistently appears to refer to a form of physical restraint.

Matter of West, 22 I&N Dec. 1405 (BIA 2000). The word “released” can also

refer to release from physical custody following arrest, not just a sentence.

e. The alien need not be charged with a ground of removability on which the

mandatory detention is based. Matter of Kotliar, 24 I&N Dec. 124 (BIA

2007).

6. Danger to property or persons

a. An alien who is a danger to the public is not properly released on bond. The

alien seeking bond bears the burden of establishing that he or she is not a danger

to property or persons, unless the alien is subject to the civil detention hearing

rules in the Ninth Circuit.

(1) This provision includes danger to property as well as to persons, and

does not require the threat of direct physical violence. Matter of

Melo, 21 I&N Dec. 883 (BIA 1997) (holding the risk of continued

narcotics trafficking also constitutes a danger to the safety of

persons).

7. An IJ may not redetermine conditions of custody imposed by the Service with respect

to the following classes of aliens:

a. Aliens in exclusion proceedings;

b. Arriving aliens in removal proceedings, including aliens paroled after arrival

pursuant to § 212(d)(5);

c. Aliens described in § 237(a)(4);

d. Aliens in removal proceedings subject to § 236(c)(1); and

e. Aliens in deportation proceedings subject to § 242(a)(2) as in effect prior to

April 1, 1997.

8. However, 8 C.F.R. § 1003.19(h)(2)(ii) provides that, “Nothing in this paragraph shall

be construed as prohibiting an alien from seeking a redetermination of custody

conditions by the Service in accordance with part 1235 or 1236 of this chapter. In

addition, with respect to paragraphs (h)(2)(i)(C), (D), and (E) of this section, nothing

in this paragraph shall be construed as prohibiting an alien from seeking a

determination by an immigration judge that the alien is not properly included within

any of those paragraphs.”

a. An alien will not be considered “properly included” in a mandatory detention

category when an IJ or the Board of Immigration Appeals finds, on the basis of

the bond record as a whole, that it is substantially unlikely that the Immigration

Fundamentals of Immigration Law 15

and Naturalization Service will prevail on the charge or charges of removability

specified in § 236(c)(1). Matter of Joseph, 22 I&N Dec. 799 (BIA 1999).

b. When an IJ bases a bond determination on evidence presented in the underlying

merits case, it is the responsibility of the parties and the IJ to ensure that the

bond record establishes the nature and substance of the specific factual

information considered by the IJ in reaching the bond determination. Matter

of Adeniji, 22 I&N Dec. 1102 (BIA 1999).

c. In assessing whether an alien is “properly included” in a mandatory detention

category during a bond hearing taking place early in the removal process, the IJ

must necessarily look forward to what is likely to be shown during the hearing

on the underlying removal case. Matter of Joseph, 22 I&N Dec. 799 (BIA

1999). Thus, for example, the failure of the Service to possess a certified copy

of a conviction record shortly after taking an alien into custody would not

necessarily be indicative of its ability to produce such a record at the merits

hearing. Id.

9. 8 C.F.R. § 1003.19(h)(4) provides that a determination by a district director (“DD”)

or other designated official regarding the exercise of authority under §

303(b)(3)(B)(ii) of Pub. L. 104-208 (concerning release of aliens who cannot be

removed) is final, and shall not be subject to redetermination by an IJ.

10. 8 C.F.R. § 1003.19(i)(1) provides that the Board has the authority to stay the custody

order of an IJ when the Service appeals the custody decision and the Service is

entitled to seek an emergency stay from the Board in connection with such an appeal

at any time.

11. 8 C.F.R. § 1003.19(i)(2) provides that in any case in which the DHS determined that

an alien should not be released and has set a bond of $10,000 or more, any order of

the IJ authorizing release (on bond or otherwise) shall be stayed upon the DHS’s

filing of a Notice of Service Intent to Appeal Custody Redetermination (Form

EOIR-43), with the Immigration Court within one business day of the order, except

as otherwise provided in 8 C.F.R. § 1003.6(c), and shall remain in abeyance pending

decision of the appeal by the Board of Immigration Appeals. The stay shall lapse

upon failure of the Service to file a timely notice of appeal in accordance with 8

C.F.R. § 1003.38.

a. An automatic stay of an IJ’s release order that has been invoked by the Service

pursuant to 8 C.F.R. § 1003.19(i)(2) is extinguished by the Board’s decision in

the Service’s bond appeal from that release order. Matter of Joseph, 22 I&N

Dec. 799 (BIA 1999).

D. Detention of aliens certified as terrorists - Section 236A of the Act

1. Section 412 of the Uniting and Strengthening America by Providing Appropriate

Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56

(“USA Patriot Act”) added section 236A to the Act.

Fundamentals of Immigration Law 16

2. Section 236A provides that the Attorney General shall take into custody any alien

who is certified under section 236A(a)(3). INA § 236A(a)(1).

3. Section 236A(a)(3) provides that the Attorney General may certify an alien under this

paragraph if the Attorney General has reasonable grounds to believe that the alien is

described in

a. Section 212(a)(3)(A)(i) - an alien seeking to enter the U.S. to engage in

espionage or sabotage.

b. Section 212(a)(3)(A)(iii) - an alien seeking to enter the U.S. to engage in any

activity a purpose of which is the overthrow of the

government of the U.S. by force, violence, or other

unlawful means.

c. Section 212(a)(3)(B) - an alien engaged in terrorist activity.

d. Section 237(a)(4)(A)(i) - engaged in espionage or sabotage.

e. Section 237(a)(4)(A)(iii) - an alien engaged in any activity a purpose of which

is the overthrow of the government of the U.S. by

force, violence, or other unlawful means.

f. Section 237(a)(4)(B) - an alien engaged in terrorist activity.

g. Or is engaged in any other activity that endangers the national security of the

U.S.

4. Section 236A(a)(4) of the Act provides that the Attorney General may delegate the

authority provided under paragraph 3 only to the Deputy Attorney General. The

Deputy Attorney General may not delegate such authority.

5. National security interests may be implicated by mass migrations. Matter of D-J-,

23 I&N Dec. 572 (A.G. 2003). The Attorney General stated that it is reasonable to

assume that the release on bond of mass migrants would come to the attention of

others in their country and encourage future surges in illegal migration. Id.

Encouraging such unlawful mass migrations is inconsistent with sound immigration

policy and important national security interests. Id.

E. Aliens subject to expedited removal

1. 8 C.F.R. § 1235.3(b)(2)(iii) provides that an alien whose inadmissibility is being

considered under the expedited removal procedures of 8 C.F.R. § 235.3(b)(1)(ii) or

who has been ordered removed pursuant to that regulation shall be detained pending

removal, but may be allowed parole by the immigration authorities. Therefore, such

an alien is not eligible for bond redetermination by an IJ.

Fundamentals of Immigration Law 17

F. All other, non-criminal, non-terrorist, aliens

1. Pending a decision on whether the alien is to be removed from the U.S., the Attorney

General may continue to detain the arrested alien, and may release the alien on a bond

of at least $1,500 or conditional parole but may not provide the alien with work

authorization unless the alien is a LPR or otherwise would be provided such

authorization. INA § 236(a).

a. Note: An alien who is initially screened for expedited removal under §

235(b)(1)(A), as a member of a class of aliens designated pursuant to the

authority in § 235(b)(1)(A)(iii), but who is subsequently placed in removal

proceedings under § 240, following a positive credible fear determination, is

eligible for a custody redetermination hearing before an IJ unless the alien is a

member of any of the listed classes of alien who are specifically excluded from

the custody jurisdiction of IJs pursuant to 8 C.F.R. § 1003.19(h)(2)(i). Matter

of X-K-, 23 I&N Dec. 731 (BIA 2005).

2. The purpose of a bond in removal proceedings is to insure that the respondent will

appear for the removal hearing. Neither § 236(a) nor the applicable regulations

confer on an alien the right to release on bond. Matter of D-J-, 23 I&N Dec. 572

(A.G. 2003).

a. In determining a respondent’s reliability as a bail risk and the amount of bond to

be required, these factors may properly be considered:

(1) respondent’s employment history and its stability;

(2) respondent’s length of residence in the community;

(3) respondent’s family ties in the U. S. and whether they are such that

they may entitle the respondent to reside permanently in the U. S. at a

future date;

(4) respondent’s record of nonappearance at court proceedings;

(5) respondent’s previous or pending criminal violations and the

seriousness of the charges;

(6) the effect such criminal violations may have upon eligibility for relief

from deportation;

(7) evidence of respondent’s disrespect for the law;

(8) evidence which adversely reflects upon respondent’s character;

(9) respondent’s previous immigration violations; and

(10) respondent’s manner of entry into the United States.

Fundamentals of Immigration Law 18

b. The Board of Immigration Appeals’ decisions on bonds which discuss the

above are:

(1) Matter of Patel, 15 I&N Dec. 666 (BIA 1976) superseded by statute

as stated in Matter of Valdez-Valdez, 21 I&N Dec. 703 (BIA 1997);

(2) Matter of San Martin, 15 I&N Dec. 167 (BIA 1974);

(3) Matter of Spiliopoulos, 16 I&N Dec. 561 (BIA 1978);

(4) Matter of Shaw, 17 I&N Dec. 177 (BIA 1979); and

(5) Matter of Andrade, 19 I&N Dec. 488 (BIA 1987).

c. The following factors may not be considered in redetermining an alien’s

custody status:

(1) The potential difficulties that DHS may face in executing an order of

removal because of conditions in the alien’s country. Matter of

P-C-M-, 20 I&N Dec. 432 (BIA 1991).

(2) The determination of bond in a removal case is independent of the

bond proceedings in any criminal case in which the respondent has

been involved, and it is inappropriate for the IJ to speculate as to the

possible rationale for a low bond set in a pending criminal case and to

find that the low criminal bond weighs in favor of a larger bond in the

removal case. Matter of Shaw, 17 I&N Dec. 177 (BIA 1979).

(3) An alien’s early release from prison and transition to a parole status

do not necessarily reflect rehabilitation for one may receive an early

release for other reasons. Matter of Andrade, 19 I&N Dec. 488 (BIA

1987). Therefore, such facts do not carry significant weight in

determining whether the alien is a good bail risk for immigration

purposes. Id.

d. An alien subject to criminal proceedings in the country to which the DHS seeks

to remove him may be appropriately ordered detained without bond as a poor

bail risk. Matter of Khalifah, 21 I&N Dec. 107 (BIA 1995).

e. An IJ’s jurisdiction includes the authority to increase the amount of bond

initially set by the DD. Matter of Spiliopoulos, 16 I&N Dec. 561 (BIA 1978).

f. Even though a respondent has had a bond redetermination hearing before an IJ,

if later there is a change of circumstances affecting his reliability as a bail risk,

the DD has authority to increase the amount of bond. Matter of Sugay, 17 I&N

Dec. 637 (BIA 1981). The new bond amount may be subject to

redetermination by an IJ.

Fundamentals of Immigration Law 19

G. Procedure in bond proceedings

1. The initial decision on custody is made by the DD or his/her delegate. 8 C.F.R.

§ 1236.1(d)(1).

a. In order to make a proper custody determination, the DHS must have custody of

the respondent. A respondent who is in the custody of a State or agency other

than the DHS is not in the custody of the DHS. Matter of Sanchez, 20 I&N

Dec. 223 (BIA 1990).

b. Even if DHS has placed a detainer on a respondent held in the custody of

another agency, the detainer does not entitle the respondent to have a bond set

by the DD. Matter of Lehder, 15 I&N Dec. 159 (BIA 1975); Matter of

Sanchez, 20 I&N Dec. 223 (BIA 1990). A detainer is merely an administrative

mechanism to insure that a person subject to confinement will not be released

until the party requesting the detainer has an opportunity to act. Matter of

Sanchez, 20 I&N Dec. 223 (BIA 1990).

c. 8 C.F.R. § 1236.1(d)(1) provides that an IJ only acquires jurisdiction over bond

after the DD’s initial determination of bond under 8 C.F.R. § 242.2(c)(2).

Therefore, a respondent who is in the custody of a State or other agency other

than DHS is not subject to having a bond set by the DD under 8 C.F.R.

§ 242.2(c)(2) or reviewed by an IJ under 8 C.F.R. § 242.2(d). Matter of

Sanchez, 20 I&N Dec. 223 (BIA 1990).

d. Immigration Judges do not have authority to redetermine the conditions of

custody imposed by DHS with respect to aliens who have not been issued and

served with a Notice to Appear (“NTA”) in relation to removal proceedings

pursuant to 8 C.F.R. § 1240, though the NTA need not have been filed in an

Immigration Court. Matter of Werner, 25 I&N Dec. 45 (BIA 2009). An alien

admitted to the U.S. pursuant to the Visa Waiver Program who has not been

served with an NTA pursuant to 8 C.F.R. § 1240 is not entitled to a custody

hearing before an IJ. Id. (acknowledging that Matter of Gallardo, 21 I&N

Dec. 210 (BIA 1996) has been superseded by regulation).

e. Although aliens present in the U.S. without being admitted or paroled are

charged under the grounds of inadmissibility listed in § 212(a), they are not

arriving aliens and may have their bond redetermined by an IJ.

2. 8 C.F.R. § 1003.19(b) and 8 C.F.R. § 1236.1(d)(1) provide authority for an IJ to

redetermine custody status only upon application by the respondent or his/her

representative. An IJ may not redetermine custody status on his/her own motion.

Matter of P-C-M-, 20 I&N Dec. 432 (BIA 1991).

a. 8 C.F.R. § 1236.1(d)(1) provides authority to the IJ to review and modify the

conditions placed on the alien’s release from DHS custody. Matter of

Garcia-Garcia, 25 I&N Dec. 93 (BIA 2009).

Fundamentals of Immigration Law 20

b. Where the respondent is still in custody, the respondent may file an application

for release at any time. 8 C.F.R. § 1236.1(d)(1). Custody means actual

physical restraint or confinement within a given space and does not include

electronic monitoring or home confinement. Matter of Aguilar-Aquino, 24

I&N Dec. 747, 752-53 (BIA 2009). Where the respondent has been released

from custody, the respondent must file an application for amelioration of the

terms of release within 7 days of release. 8 C.F.R. § 1236.1(d)(1). If the

application for amelioration occurs after 7 days from release, the IJ lacks

authority to redetermine custody status. Aguilar-Aquino, 24 I&N Dec. at 753.

3. 8 C.F.R. § 1236.1(c)(5) provides that an IJ may not exercise bond redetermination

authority with respect to:

a. A criminal alien subject to § 303(b)(3)(A)(ii) or (iii) of Div. C. of Pub. L.

104-208, if the alien has been sentenced, including in the aggregate, to at least 2

years imprisonment and the alien:

(1) Is described in § 237(a)(2)(D)(i) or (ii) [espionage and sabotage] or

has been convicted of a crime described in § 101(a)(43)(A), (C),

(E)(i), (H), (I), (K)(iii) or (L) [select aggravated felonies];

(2) Is described in § 237(a)(2)(A)(iv) [high speed flight]; or

(3) Has escaped or attempted to escape from the lawful custody of a local,

State or Federal prison, agency or officer within the United States.

4. An IJ loses jurisdiction to redetermine bond when an order of removal becomes

administratively final. 8 C.F.R. § 1236.1(d). In the Ninth Circuit, this may be

impacted by civil detention proceedings.

5. The background investigations and security checks requirement at 8 C.F.R. §

1003.47(g) does not apply to proceedings seeking the redetermination of conditions

of custody. However, in scheduling an initial custody redetermination hearing, the

IJ shall, to the extent practicable consistent with expedited nature of such cases, take

account of the brief initial period of time needed for the Department of Homeland

Security to conduct the automated portions of its identity, law enforcement or

security examinations or investigations with respect to aliens detained in connection

with immigration proceedings. 8 C.F.R. § 1003.47(k).

H. Requests for additional or subsequent bond redeterminations

1. After an initial bond redetermination, any request for subsequent determinations

must be made in writing and must demonstrate a material change in circumstances

since the prior bond redetermination. 8 C.F.R. § 1003.19(e).

2. An IJ maintains continuing jurisdiction to entertain requests by an alien for

subsequent bond redeterminations even after the timely filing of an appeal with the

Board from a previous bond redetermination decision. Matter of Valles, 21 I&N

Dec. 769 (BIA 1997). If, after a bond appeal has been filed by an alien, the IJ grants

Fundamentals of Immigration Law 21

a request for a subsequent bond redetermination, the appeal is rendered moot and the

Board will promptly return the record to the Immigration Court. Id.

I. Appeals of bond decisions

1. 8 C.F.R. § 1236.1(d)(3) provides that an appeal to the Board may be filed as follows:

a. Within 30 days by either the alien or the Service from a decision of an IJ.

b. Within 10 days by the alien from a decision of a DD once the IJ has lost

jurisdiction, i.e., 7 days after posting bond or when an order of removal

becomes administratively final.

IV. Grounds of inadmissibility in removal proceedings

A. Health-related grounds - Section 212(a)(1) of the Act

1. For available waivers, see § 212(g).

2. Communicable disease – Section 212(a)(1)(A)(i) of the Act provides that any alien

who is determined in accordance with regulations by the Secretary of Health and

Human Services (“HHS”) to have a communicable disease of public health

significance is inadmissible.

3. Vaccinations – Section 212(a)(1)(A)(ii) provides that any alien who seeks

admission as an immigrant, or who seeks adjustment of status, who has failed to

present documentation of having received vaccination against vaccine-preventable

diseases, including those listed in the section is inadmissible.

4. Mental disorder –

a. Section 212(a)(1)(A)(iii)(I) provides that any alien who is determined in

accordance with regulations by the Secretary of HHS in consultation with the

Attorney General to have a physical or mental disorder and a history of

behavior associated with the disorder that has posed or may pose a threat to the

property, safety, or welfare of the alien or others is inadmissible.

b. Section 212(a)(1)(A)(iii)(II) provides that any alien who is determined in

accordance with regulations by the Secretary of Health and Human Services in

consultation with the Attorney General to have had in the past a physical or

mental disorder and a history of behavior associated with the disorder which

behavior has posed a threat to the property, safety, or welfare of the alien and

which behavior is likely to recur or to lead to other harmful behavior is

inadmissible.

5. Drug abusers – Section 212(a)(1)(A)(iv) provides that any alien determined in

accordance with regulations by the Secretary of HHS to be a drug abuser or addict is

inadmissible.

Fundamentals of Immigration Law 22

B. Crime involving moral turpitude (“CIMT”)

1. Section 212(a)(2)(A)(i)(I) provides that any alien convicted of, or who admits

having committed, or admits committing acts which constitute the essential

elements of a crime involving moral turpitude (other than a purely political offense

or an attempt or conspiracy to commit such a crime) is inadmissible.

2. History Lesson - Before 1990, excludability for a CIMT was covered in § 212(a)(9).

In 1990, the Act was reorganized and that subject came under § 212(a)(2)(A)(i)(I).

In 1996, it stayed under that section number. Many cases on this subject from

before 1990 involve § 212(a)(9) as the ground of inadmissibility.

C. Controlled substance offenses

1. Section 212 (a)(2)(A)(i)(II) provides that any alien convicted of, or who admits

committing acts which constitute the essential elements of, a violation of or a

conspiracy to violate any law or regulation of a State, the U.S., or a foreign country

relating to a controlled substance as defined in § 102 of the Controlled Substances

Act (21 U.S.C. § 802) is inadmissible.

2. History Lesson- Before 1990, excludability for a drug offense was covered in part of

§ 212(a)(23). In 1990, the Act was reorganized and that subject came under §

212(a)(2)(A)(i)(II). In 1996, it stayed under that section. Many cases on this

subject from before 1990 involve former section 212(a)(23) as the ground of

inadmissibility.

D. Multiple criminal convictions

1. Section 212(a)(2)(B) provides that any alien convicted of 2 or more offenses (other

than purely political offenses), 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, for which the aggregate

sentences to confinement actually imposed were 5 years or more is inadmissible.

2. History Lesson - Before 1990, excludability for 2 or more offenses was covered in §

212(a)(10). In 1990, the Act was reorganized and that subject came under §

212(a)(2)(A)(i)(I). In 1996, it stayed under that section. Cases on this subject

from before 1990 involve § 212(a)(10) as the ground of inadmissibility.

3. In interpreting former section 212(a)(10), the Board held that if an alien has been

convicted of 2 counts of an offense and sentenced to serve 2 concurrent 3-year

terms, the aggregate sentence is only 3 years. Matter of Fernandez, 14 I&N Dec.

24 (BIA 1972). Apparently the alien must be sentenced to consecutive terms in

order for the terms to be combined in determining an aggregate sentence. This

appears to still be good law because Fernandez was cited with approval in Matter of

Aldabesheh, 22 I&N Dec. 983 (BIA 1999), which dealt with the “aggregate

sentence” of an alien convicted of two or more aggravated felonies and sentenced to

Fundamentals of Immigration Law 23

concurrent sentences of imprisonment. Because the aggregate sentence was less

than 5 years, the respondent was eligible for withholding of removal.

E. Trafficking in controlled substances

1. Section 212(a)(2)(C) provides that any alien who the consular or immigration

officer knows or has reason to believe is or has been an illicit trafficker in any

controlled substance or has been a knowing assister, abettor, conspirator, or colluder

with others in the illicit trafficking in controlled substances is inadmissible.

2. History Lesson - Before 1990, excludability for being a drug trafficker was covered

in part of § 212(a)(23). In 1990, the Act was reorganized and being a drug

trafficker came under § 212(a)(2)(C). In 1996, it stayed under that section. Many

cases on this subject from before 1990 involve former section 212(a)(23) as the

ground of inadmissibility.

3. The statute does not require a conviction to establish inadmissibility under this

section. Matter of Rico, 16 I&N Dec. 181, 184 (BIA 1977); see also Mena-Flores

v. Holder, 776 F.3d 1152 (10th Cir. 2015).

a. The Eleventh Circuit held that an alien’s vacated guilty plea along with

hearsay statements in police reports did not amount to reason to believe that

alien trafficked in controlled substances and, therefore, the alien was not

removable under § 212(a)(2)(C). Garces v. Att’y Gen., 611 F.3d 1337 (11th

Cir. 2010); but see Chavez-Reyes v. Holder, 741 F.3d 1 (9th Cir. 2014).

4. In cases involving former section 212(a)(23), the Board held that a single act will

constitute a “trafficking” and it is not necessary to show a pattern or continuous

trade in drugs. Matter of Favela, 16 I&N Dec. 753 (BIA 1979); Matter of Rico, 16

I&N Dec. 181 (BIA 1977); Matter of P-, 5 I&N Dec. 190 (BIA 1953). However,

Matter of Rico and Matter of Favela do imply that it is necessary to show an act of

more than simple possession such as sale of drugs or possession of such a large

quantity of drugs that it could not be intended for personal use.

5. An alien who knowingly and consciously acts as a conduit in the transfer of

marijuana between a dealer and the customers of the dealer was excludable under

former section 212(a)(23) as an "illicit trafficker" in drugs, even though he derived

no personal gain or profit from the transaction. Matter of R-H-, 7 I&N Dec. 675

(BIA 1958) (finding illicit trafficking where the alien on 3 occasions held marijuana

cigarettes for a dealer and distributed them to customers who either had already paid

the dealer in advance or left payment with the alien for later collection by the

dealer).

6. Applicants who, at the time of arrival, were in possession of 6 marijuana cigarettes

for personal use were not excludable under former section 212(a)(23) of the Act

because there had been no conviction for possession of marijuana and their

possession of a small quantity for personal use did not constitute “trafficking.”

Matter of McDonald and Brewster, 15 I&N Dec. 203 (BIA 1975).

Fundamentals of Immigration Law 24

F. Prostitution

1. Section 212(a)(2)(D)(i) provides that any alien coming to the U.S. solely,

principally, or incidentally to engage in prostitution or who has engaged in

prostitution within 10 years of the application for a visa, admission, or adjustment of

status is inadmissible.

G. Procurers & importers of prostitutes

1. Section 212(a)(2)(D)(ii) provides that the following aliens are inadmissible: Those

who directly or indirectly procure or attempt to procure prostitutes or persons for the

purpose of prostitution, or who receive, in whole or in part, the proceeds of

prostitution.

a. The Board has ruled that a conviction under California Penal Code § 647(b)

does not render an alien inadmissible under § 212(a)(2)(D)(ii) for “procur[ing]

. . . prostitutes or persons for the purpose of prostitution.” Matter of

Gonzalez-Zoquiapan, 24 I&N Dec. 549 (BIA 2008). The California statute

punishes anyone “[w]ho solicits or who agrees to engage in or who engages in

any act of prostitution,” and it states that “‘prostitution’ includes any lewd act

between persons for money or other consideration.” Id. at 551. The Board

ruled that “the term ‘procure’ [in INA § 212(a)(2)(D)(ii)] does not extend to an

act of solicitation of a prostitute on one’s own behalf.” Id. at 551-52. The

Board further ruled that, even if INA § 212(a)(2)(D)(ii) encompasses

soliciting a prostitute on one’s own behalf, California Penal Code § 647(b) still

falls outside that statute. Id. at 553. For this holding, the Board cited to 22

C.F.R. § 40.24(b), which states that, for purposes of INA § 212(a)(2)(D)(ii),

“‘prostitution’ means engaging in promiscuous sexual intercourse for hire. A

finding that an alien has ‘engaged’ in prostitution must be based on elements

of continuity and regularity.” Id. The Board explained that the California

statute is broader than INA § 212(a)(2)(D)(ii) because: (1) it covers “lewd

act[s]” rather than simply “sexual intercourse;” and (2) it does not require “a

pattern of behavior or deliberate course of conduct.” Id.

2. Those who have within 10 years of the application for a visa, admission, or

adjustment of status procured, attempted to procure, or to import prostitutes or

persons for the purpose of prostitution.

3. Those who receive or have received within 10 years of the application for a visa,

admission, or adjustment of status, in whole or in part, the proceeds of prostitution.

H. Commercialized vice

1. Section 212(a)(2)(D)(iii) provides that any alien coming to the U.S. to engage in any

other unlawful commercialized vice, whether or not related to prostitution is

inadmissible.

Fundamentals of Immigration Law 25

I. Aliens who asserted immunity from prosecution - Section 212(a)(2)(E)

1. Any alien is inadmissible:

a. Who has committed in the U.S. at any time a serious criminal offense as

defined in § 101(h);

b. For whom immunity from criminal jurisdiction was exercised with respect to

that offense;

c. Who departed from the U.S. as a consequence of the offense and the exercise

of immunity; and

d. Who has not subsequently submitted fully to the jurisdiction of the court in the

U.S. which has jurisdiction with respect to the offense.

2. The term “serious criminal offense,” defined in § 101(h) means:

a. Any felony;

b. Any crime of violence, as defined in 18 U.S.C. § 16; or

c. Any crime of reckless driving or driving while intoxicated or under the

influence of prohibited substances if the crime involves personal injury to

another.

3. A waiver is available at § 212(h).

J. Espionage or sabotage

1. Section 212(a)(3)(A)(i) provides that any alien is inadmissible who a consular

officer or the Attorney General knows, or has reasonable ground to believe, seeks to

engage solely, principally or incidentally in:

a. any activity to violate any law of the U.S. relating to espionage or sabotage, or

b. to violate or evade any law prohibiting the export from the U.S. of goods,

technology, or sensitive information.

2. Former section 241(a)(4)(A)(i) of the Act, which provided for the deportability of

any alien who after entry has engaged in “any activity to violate any law of the

United States relating to espionage,” does not require evidence that the alien was

either engaged in an act of espionage or was convicted of violating a law relating to

espionage. Matter of Luis, 22 I&N Dec. 747 (BIA 1999).

3. An alien who has knowledge of, or has received instruction in, the espionage or

counter-espionage service or tactics of a foreign government in violation of 50

Fundamentals of Immigration Law 26

U.S.C. § 851 (1994), is deportable under former section 241(a)(4)(A)(i) of the Act.

Matter of Luis, 22 I&N Dec. 747 (BIA 1999).

K. Any unlawful activity

1. Section 212(a)(3)(A)(ii) provides that any alien who a consular officer or the

Attorney General knows, or has reasonable ground to believe, seeks to engage

solely, principally or incidentally in any unlawful activity is inadmissible.

L. Overthrow of the Government of the U.S.

1. Section 212(a)(3)(A)(iii) provides that any alien who a consular officer or the

Attorney General knows, or has reasonable ground to believe, seeks to engage

solely, principally or incidentally in any activity a purpose of which is the

opposition to, or overthrow of the Government of the U.S. by force, violence, or

other unlawful means is inadmissible.

M. Terrorist activities

1. Section 212(a)(3)(B)(i) [amended by the REAL ID Act of 2005] provides that any

alien is inadmissible who:

a. has engaged in a terrorist activity [INA § 212(a)(3)(B)(i)(I)];

b. a consular officer or the Attorney General or Secretary of Homeland Security

knows, or has reasonable ground to believe, is engaged in or likely to engage

after entry in any terrorist activity [INA § 212(a)(3)(B)(i)(II)];

c. has, under circumstances indicating an intention to cause death or serious

bodily harm, incited terrorist activity [INA § 212(a)(3)(B)(i)(III)];

d. is a representative of a terrorist organization or a political, social or other group

that endorses or espouses terrorist activity [INA § 212(a)(3)(B)(i)(IV)];

e. is a member of a terrorist organization (unless the alien can demonstrated by

clear and convincing evidence that he did not know and should not reasonably

have known that the organization was a terrorist organization) [INA §§

212(a)(3)(B)(i)(V) & (VI)];

f. endorses or espouses a terrorist activity or persecutes others to endorse or

espouse a terrorist activity or support a terrorist organization [INA §

212(a)(3)(B)(i)(VII)];

g. has received military-type training (as defined in 18 U.S.C. § 2339D(c)(1))

from or on behalf of any organization that, at the time the training was

received, was a terrorist organization [INA § 212(a)(3)(B)(i)(VIII)]; or

Fundamentals of Immigration Law 27

h. is the spouse or child of an alien found inadmissible under this subparagraph,

if the activity causing the alien to be found inadmissible occurred within the

last 5 years [INA § 212(a)(3)(B)(i)(IX)].

2. The term “terrorist activity” is defined in § 212(a)(3)(B)(iii) of the Act as any

activity which is unlawful under the laws of the place where it is committed (or

which, if committed in the U.S., would be unlawful under the laws of the U.S. or any

State) and which involves any of the following:

a. The high jacking or sabotage of any conveyance (including an aircraft, vessel,

or vehicle) [INA § 212(a)(3)(B)(iii)(I)];

b. The seizing or detaining, and threatening to kill, injure, or continue to detain,

another individual in order to compel a third person (including a governmental

organization) to do or abstain from doing any act as an explicit or implicit

condition for the release of the individual seized or detained [INA §

212(a)(3)(B)(iii)(II)];

c. A violent attack upon an internationally protected person (as defined in

18 U.S.C. § 1116(b)(4)) or upon the liberty of such a person [INA

§ 212(a)(3)(B)(iii)(III)];

d. An assassination [INA § 212(a)(3)(B)(iii)(IV)];

e. The use of any (a) biological agent, chemical agent, or nuclear weapon or

device, or (b) explosive or firearm (other than for mere personal monetary

gain), with intent to endanger, directly or indirectly, the safety of one or more

individuals or to cause substantial damage to property [INA §

212(a)(3)(B)(iii)(V)];

f. A threat, attempt, or conspiracy to do any of the foregoing [INA

§ 212(a)(3)(B)(iii)(VI)].

3. The term “to engage in terrorist activity” is defined in § 212(a)(3)(B)(iv) and means,

in an individual capacity or as a member of an organization,

a. to commit or to incite to commit, under circumstances indicating an intention

to cause death or serious bodily injury, a terrorist activity [INA §

212(a)(3)(B)(iv)(I)];

(1) The question of whether an alien had the requisite intent has been

held to constitute an issue of fact. See Zumel v. Lynch, 803 F.3d 463

(9th Cir. 2015).

b. to prepare or plan a terrorist activity [INA § 212(a)(3)(B)(iv)(II)];

c. to gather information on potential targets for a terrorist activity [INA §

212(a)(3)(B)(iv)(III)];

Fundamentals of Immigration Law 28

d. to solicit funds or other things of value for a terrorist activity or a terrorist

organization (unless the solicitor can demonstrate by clear and convincing

evidence that he did not know and should not reasonable have known, that the

organization was a terrorist organization) [INA § 212(a)(3)(B)(iv)(IV)];

e. to solicit any individual to engage in conduct otherwise described in this

subsection, for membership in a terrorist organization (unless the solicitor can

demonstrate by clear and convincing evidence that he did not know and should

not reasonable have known, that the organization was a terrorist organization)

[INA § 212(a)(3)(B)(iv)(V)]; or

f. to commit an act that the actor knows or reasonable should know, affords

material support, including a safe house, transportation, communications,

funds, transfer of funds or other material financial benefit, false documentation

or identifications, weapons (including chemical, biological, or radiological

weapons), explosives or training for (1) the commission of a terrorist activity,

(2) to any individual who the actors knows or reasonably should know has

committed or plans to commit a terrorist activity, or (3) to a terrorist

organization (unless the actor can demonstrate by clear and convincing

evidence that he did not know and should not reasonable have known, that the

organization was a terrorist organization) [INA § 212(a)(3)(B)(iv)(VI)].

(1) Neither an alien’s intent in making a donation to a terrorist

organization nor the intended use of the donation by the recipient is

considered in assessing whether the alien provided “material

support” to a terrorist organization under section

212(a)(3)(B)(iv)VI). Matter of S-K-, 23 I&N Dec. 936 (BIA 2006).

(2) Other cases interpreting the meaning of “material support” include

Sesay v. Atty. Gen. of the United States, 787 F.3d 215 (3d Cir. 2015);

Bojnoordi v. Holder, 757 F.3d 1075 (9th Cir. 2014); Alturo v. United

States Atty. Gen., 716 F.3d 1310 (11th Cir. 2013); Viegas v. Holder,

699 F.3d 798 (4th Cir. 2012); Hussain v. Mukasey, 518 F.3d 534 (7th

Cir. 2008).

4. The statutory language of § 212(a)(3)(B) does not allow a “totality of the

circumstances” test to be employed in determining whether an organization is

engaged in a terrorist activity, so factors such as an organization’s purposes or goals

and the nature of the regime that the organization opposes may not be considered.

Matter of S-K-, 23 I&N Dec. 936 (BIA 2006). The definition of “terrorist activity”

under the INA does not provide an exception for armed resistance against military

targets notwithstanding that it may be permitted under international laws of armed

conflict. Khan v. Holder, 584 F.3d 773 (9th Cir. 2009).

a. Subsequent to the issuance of Matter of S-K-, the Secretary of Homeland

Security made a determination that section 212(a)(3)(B)(iv)(VI) shall not

apply with respect to material support provided to the Chin National

Fundamentals of Immigration Law 29

Front/Chin National Army of Burma by an alien who meets certain criteria.

Notice of Determination, 72 Fed. Reg. 9957-01 (Mar. 6, 2007). Thereafter,

the Attorney General remanded Matter of S-K- to the Board for consideration

of the effect of the Secretary’s determination. Matter of S-K-, 24 I&N Dec.

289 (A.G. 2007). The Board determined that the Secretary’s determination

made the respondent eligible for asylum, and granted relief. Matter of S-K-,

24 I&N Dec. 475 (BIA 2008). The Attorney General’s remand does not

affect the precedential nature of the Board’s conclusions in the first Matter of

S-K-. Id.

5. Duress exemption:

a. The Secretary of the Department of Homeland Security has the discretion to

waive the material support inadmissibility bar for certain aliens if the material

support was provided under duress in certain circumstances.

b. On October 23, 2008, following interagency meetings, the Department of

Homeland Security issued a Fact Sheet announcing its procedure for handling

cases that may be considered for an exemption afforded by § 212(d)(3)(B), in

which there is an administratively final order of removal. Fact Sheet,

Department of Homeland Security Implements Exemption Authority for

Certain Terrorist-Related Inadmissibility Grounds for Cases with

Administratively Final Orders of Removal (Oct. 23, 2008). Previously,

USCIS had been adjudicating the available exemptions for cases not in

removal proceedings. Under the new procedures, certain cases involving

aliens in removal proceedings can be referred to USCIS, if the respondent was

found ineligible for relief or a benefit solely because of a terrorism bar for

which the Secretary has exercised his exemption authority. If USCIS grants

the exemption, the case can be reopened and relief granted. For a case to be

referred for consideration of this exemption, the adjudicator must conclude the

alien would have received relief but for the material support bar. Exemptions

granted to date are available at

http://www.uscis.gov/laws/terrorism-related-inadmissability-grounds/terroris

m-related-inadmissibility-grounds-exemptions.

c. Immigration Judges lack authority to adjudicate exemptions to the material

support bar. However, there has been some disagreement among the circuit

courts on this matter. See, e.g., Ay v. Holder, 743 F.3d 317 (2d Cir. 2015);

Sesay v. Att’y Gen. of the United States, 787 F.3d 215, 224 n.9 (3d Cir. 2015)

6. The term “representative” is defined at § 212(a)(3)(B)(v) as an officer, official, or

spokesman of an organization and any person who directs, counsels, commands, or

induces an organization or its members to engage in terrorist activity.

7. The term “terrorist organization” is defined at § 212(a)(3)(B)(vi) as an organization

a. designated under § 219 of the Act;

Fundamentals of Immigration Law 30

b. otherwise designated, upon publication in the Federal Register, by the

Secretary of State in consultation with or upon the request of the Attorney

General or the Secretary of Homeland Security, as a terrorist organization,

after finding the organization engages in terrorist activity [INA §

212(a)(3)(B)(vi)(II)]; or

c. that is a group of two or more individuals, whether organized or not, which

engages in, or has a subgroup which engages in, terrorist activity [INA §

212(a)(3)(B)(vi)(III)].

N. Adverse effects on foreign policy

1. Section 212(a)(3)(C)(i) of the Act provides that any alien whose entry or proposed

activities in the U.S. the Secretary of State has reasonable ground to believe would

have potentially serious adverse foreign policy consequences for the U.S. is

inadmissible.

2. Exception for officials. Section 212(a)(3)(C)(ii) provides that an alien who is an

official of a foreign government or a purported government, or who is a candidate

for election to a foreign government office during the period immediately preceding

the election for that office, shall not be excludable or subject to restrictions or

conditions on entry into the U.S. solely because of the alien’s past, current, or

expected beliefs, statements, or associations, if such beliefs, statements, or

associations would be lawful within the U.S.

3. Exception for other aliens. Section 212(a)(3)(C)(iii) provides that an alien, other

than an official described above, shall not be excludable or subject to restrictions or

conditions on entry into the U.S. because of the alien’s past, current, or expected

beliefs, statements, or associations, if such beliefs, statements, or associations would

be lawful within the U.S., unless the Secretary of State personally determines that

the alien’s admission would compromise a compelling U.S. foreign policy interest.

O. Communist or totalitarian party membership

1. Section 212(a)(3)(D)(i) of the Act provides that any immigrant who is or has been a

member of or affiliated with the Communist Party or any other totalitarian party, or

subdivision or affiliate thereof, whether foreign or domestic is inadmissible.

2. Since section 212(a)(3)(D)(i) applies only to immigrants, aliens seeking admission

as nonimmigrants are not rendered inadmissible by party membership.

3. Exception for involuntary membership – Section 212(a)(3)(D)(ii) provides that §

212(a)(3)(D)(i) shall not apply to an alien because of membership or affiliation if the

alien establishes to the satisfaction of the consular officer when applying for a visa

(or to the satisfaction of the Attorney General when applying for admission) that

a. the membership or affiliation is or was involuntary, or

Fundamentals of Immigration Law 31

b. is or was solely when under 16 years of age, by operation of law, or for

purposes of obtaining employment, food rations, or other essentials of living

and whether necessary for such purposes.

4. Exception for past membership – Section 212(a)(3)(D)(iii) provides that §

212(a)(3)(D)(i) shall not apply to an alien because of membership or affiliation if the

alien establishes to the satisfaction of the consular officer when applying for a visa

(or to the satisfaction of the Attorney General when applying for admission) that the

membership or affiliation terminated

a. at least 2 years before the date of such application, or

b. 5 years before the date of such application, in the case of an alien whose

membership or affiliation was with the party controlling the government of a

foreign state that is a totalitarian dictatorship as of such date, and

c. the alien is not a threat to the security of the U.S.

5. Exception for certain close family members–

a. Although the statute refers to this as an “exception”, it is actually a waiver

since it involves the exercise of discretion.

b. Section 212(a)(3)(D)(iv) provides that the Attorney General may, in the

Attorney General’s discretion, waive the application of § 212(a)(3)(D)(i) in

the case of an immigrant who is the parent, spouse, son, daughter, brother, or

sister of a citizen of the U.S. or a spouse, son, or daughter of an alien lawfully

admitted for permanent residence for humanitarian purposes, to assure family

unity, or when it is otherwise in the public interest if the immigrant is not a

threat to the security of the U.S.

P. Nazi persecution

1. Section 212(a)(3)(E)(i) of the Act provides that any alien who participated in the

persecution of others in connection with the Nazi government of Germany from

1933 to 1945 is inadmissible.

Q. Genocide or Acts of Torture or Extrajudicial Killing

1. Section 212(a)(3)(E)(ii) of the Act provides that any alien who has engaged in

genocide is inadmissible. Section 212(a)(3)(E)(iii) provides that any alien who has

committed, ordered, incited, assisted, or otherwise participated in the commission of

torture or extrajudicial killing is inadmissible.

R. Public Charge

1. Section 212(a)(4) of the Act provides that any alien who in the opinion of the

consular officer at the time of application for a visa or the Attorney General at the

Fundamentals of Immigration Law 32

time of application for admission or adjustment of status, is likely to become a

public charge is inadmissible.

2. Factors to be taken into account–

a. Section 212(a)(4)(B)(i) provides that in determining admissibility, the

consular officer or Attorney General shall at a minimum consider the alien’s

(1) age;

(2) health;

(3) family status;

(4) assets, resources, and financial status; and

(5) education and skills.

b. Section 212(a)(4)(B)(ii) provides that, in addition to the factors listed above,

the consular officer or Attorney General may also consider any affidavit of

support under § 213A.

3. Section 212(a)(4)(C) provides that any alien who seeks admission or adjustment of

status under a visa number issued under §§ 201(b)(2) or 203(a) is inadmissible under

§ 212(4) unless the alien has obtained status as a spouse or child of a U.S. citizen

pursuant to clause (ii), (iii), or (iv) of § 204(a)(1)(A), or classification pursuant to

clause (ii) or (iii) of § 204(a)(1)(B), or the person petitioning for the alien’s

admission (including any additional sponsor required under § 213A(f)) has executed

an affidavit of support described in § 213A with respect to such alien.

4. Section 212(a)(4)(D) provides that any alien who seeks admission or adjustment of

status under a visa number issued under § 203(b) by virtue of a classification

petition filed by a relative of the alien (or by an entity in which such relative has a

significant ownership interest) is inadmissible unless such relative has executed an

affidavit of support described in § 213A with respect to such alien.

S. No labor certification

1. Section 212(a)(5)(A) of the Act provides that any alien seeking to enter the U.S. to

perform labor who has no labor certification is inadmissible.

T. Foreign medical graduates

1. Section 212(a)(5)(B) of the Act provides that certain foreign medical graduates who

have not passed the NBME exam and who are not competent in oral and written

English are inadmissible.

Fundamentals of Immigration Law 33

U. Uncertified foreign health-care workers

1. Section 212(a)(5)(C) of the Act provides that any alien is inadmissible who seeks to

enter the U.S. as a health-care worker, other than a physician, who does not present

to the consular officer, or Attorney General if seeking adjustment of status, a

certificate from the Commission on Graduates of Foreign Nursing Schools or its

equivalent.

V. Illegal entrants and immigration violators

1. Not admitted or paroled – Section 212(a)(6)(A)(i) of the Act provides that an alien

present in the U.S. without being admitted or paroled, or who arrives in the U.S. at

any time or place other than as designated by the Attorney General is inadmissible.

a. Exception for certain battered women and children – Section 212(a)(6)(A)(ii)

provides that § 212(a)(6)(A)(i) shall not apply to an alien who demonstrates

that:

(1) the alien qualifies for immigrant status under § 204(a)(1)(A)(iii),

(A)(iv), (B)(ii), or (B)(iii) [VAWA self-petitioner], and

(2) the alien has been battered or subjected to extreme cruelty by a

spouse or parent, or by a member of the spouse’s or parent's family

residing in the same household as the alien and the spouse or parent

consented or acquiesced to such battery or cruelty, or

(3) the alien’s child has been battered or subjected to extreme cruelty by

a spouse or parent of the alien (without the active participation of the

alien in the battery or cruelty) or by a member of the spouse’s or

parent’s family residing in the same household as the alien when the

spouse or parent consented to or acquiesced in such battery or cruelty

and the alien did not actively participate in such battery or cruelty,

and

(4) there was a substantial connection between the battery or cruelty and

the alien’s unlawful entry into the U.S.

2. Failure to attend hearing – Section 212(a)(6)(B) provides that any alien who without

reasonable cause fails or refuses to attend or remain in attendance at a proceeding to

determine the alien’s inadmissibility or deportability and who seeks admission to

the U.S. within 5 years of such alien’s subsequent departure or removal is

inadmissible.

3. Misrepresentation

a. Fraud or misrepresentation of a material fact – Section 212(a)(6)(C)(i)

provides that any alien who seeks to procure, has sought to procure, or has

procured a visa, other documentation, entry into the U.S., or other benefit

Fundamentals of Immigration Law 34

under the Act by fraud or willfully misrepresenting a material fact is

inadmissible.

(1) A waiver for this ground of inadmissibility is available under §

212(i).

(2) A concealment or misrepresentation is material if it had the natural

tendency to influence the adjudicator. Matter of D-R-, 25 I&N Dec.

445, 450 (BIA 2011) (quoting Kungys v. United States, 485 U.S. 759,

772 (1988)). It is not necessary to establish that the

misrepresentation actually influenced the adjudicator or that but for

the misrepresentation, the alien would have been denied the benefit

he sought. Id.

b. False claim to U.S. citizenship – Section 212(a)(6)(C)(ii)(I) provides that any

alien who falsely represents or has falsely represented himself or herself to be

a citizen of the U.S. for any purpose or benefit under the Act or any other

Federal or State law is inadmissible. Aliens who reasonably believed that

they were citizens may be excepted under § 212(a)(6)(C)(ii)(II).

(1) A waiver for this ground of inadmissibility is available under §

212(i). INA § 212(a)(6)(C)(iii).

(2) An alien who willfully and knowingly makes a false

misrepresentation of birth in the United States on a passport

application has falsely represented herself to be a U.S. citizen.

Matter of Barcenas, 25 I&N Dec. 40 (BIA 2009).

4. Stowaways – Section 212(a)(6)(D) provides that any alien who is a stowaway is

inadmissible. The term is defined at § 101(a)(49).

5. Alien smugglers – Section 212(a)(6)(E)(i) provides that any alien who at any time

knowingly has encouraged, assisted, abetted, or aided, any other alien to enter or try

to enter the U.S. in violation of law is inadmissible.

a. Section 212(a)(6)(E)(i) shall not apply in the case of an alien who is an eligible

immigrant as defined in § 301(b)(1) of the Immigration Act of 1990, was

physically present in the U.S. on May 5, 1988, and is seeking admission as an

immediate relative or under § 203(a)(2) (including under § 112 of the

Immigration Act of 1990) or benefits under § 301(a) of the immigration Act of

1990 if the alien, before May 5, 1988, has encouraged, induced, assisted,

abetted, or aided only the alien’s spouse, parent, son, or daughter (and no other

individual) to enter the U.S. in violation of law. INA § 212(a)(6)(E)(ii).

(1) Section 301(b)(1) of the Immigration Act of 1990 defines the term

“eligible immigrant” as a qualified immigrant who is the spouse or

unmarried child of a legalized alien.

Fundamentals of Immigration Law 35

b. A waiver of inadmissibility may also be available under § 212(d)(11). INA §

212(a)(6)(E)(iii).

6. Violators of § 274C – Section 212(a)(6)(F) provides that any alien who is the subject

of a final order for violation of § 274C is inadmissible. Section 274C provides for a

hearing before an administrative law judge, civil fines of between $250 and $2,000

for each document, and makes unlawful the following: to forge, attempt to use,

possess, obtain, or falsely make any document for the purpose of satisfying a

requirement of the Act; to use, attempt to use, possess, obtain, accept, or receive or

to provide any forged, counterfeit, altered, or falsely made document in order to

satisfy any requirement of the Act; to use or attempt to use or to provide or attempt

to provide any document lawfully issued to a person other than the possessor for the

purpose of satisfying a requirement of the Act; to accept or receive or to provide any

document lawfully issued to a person other than the possessor for the purpose of

complying with § 274A(b).

a. A waiver may be available under § 212(d)(12). INA § 212(a)(6)(F)(ii).

7. Student visa abusers – Section 212(a)(6)(G) provides that an alien who obtains the

status of a nonimmigrant under § 101(a)(15)(F)(i) and who violates a term or

condition of such status under § 214(l) is inadmissible until the alien has been

outside the U.S. for a continuous period of 5 years after the date of the violation.

This section should likely refer to current § 214(m) rather than § 214(l) as § 214(m)

refers to foreign students. See Pub. L. 106-386, Victims of Trafficking and

Violence Protection Act of 2000, § 107(e)(2)(a).

W. Not in possession of valid, unexpired documents

1. Section 212(a)(7)(A)(i) of the Act provides that any immigrant who, at the time of

the application for admission, is not in possession of a valid unexpired immigrant

visa, reentry permit, border crossing card, or other valid entry document required by

the Act and a valid unexpired passport or other suitable travel document or

document of identity and nationality if required by the regulations under § 211(a), or

whose visa has been issued without compliance with the provisions of § 203 (the

preferences by which immigrant visas are issued) is inadmissible.

2. A waiver may be available under § 212(k). INA § 212(a)(7)(A)(ii).

X. Not in possession of valid entry documents, such as visa

1. Section 212(a)(7)(B)(i)(I) provides that any nonimmigrant who is not in possession

of a passport valid for a minimum of 6 months from the date of the expiration of the

initial period of the alien’s admission or contemplated initial period of stay

authorizing the alien to return to the country from which the alien came or to

proceed to and enter some other country during such period is inadmissible.

2. Section 212(a)(7)(B)(i)(II) provides that any nonimmigrant not in possession of a

valid nonimmigrant visa or a border crossing identification card is inadmissible.

Fundamentals of Immigration Law 36

3. Waivers available–

a. A waiver of both of the above is available under § 212(d)(4). INA §

212(a)(7)(B)(ii).

b. A waiver for certain nonimmigrant visitors to Guam is also available under §

212(l). INA § 212(a)(7)(B)(iii).

c. A general waiver is also available under the Visa Waiver Pilot Program

discussed in § 217. INA § 212(a)(7)(B)(iv).

Y. Immigrants who are permanently ineligible for citizenship - Section 212(a)(8)(A)

1. The term “ineligible to citizenship” is defined at § 101(a)(19) and refers to persons

who have requested exemption from military service on account of alienage.

2. The phrase “ineligible to citizenship” in § 212(a)(8)(A) refers only to those aliens

who are barred from naturalization by virtue of their evasion of military service.

Matter of Kanga, 22 I&N Dec. 1206 (BIA 2000). Therefore, an alien convicted of

an aggravated felony is not thereby rendered inadmissible under § 212(a)(8)(A) as

an alien who is permanently “ineligible to citizenship.” Id.

3. Note that § 212(a)(8)(A) is applicable only to aliens seeking to enter the U.S. as an

immigrant. It does not apply to nonimmigrants.

Z. Draft evaders

1. Section 212(a)(8)(B) provides that any person who has departed from or remained

outside the U.S. to avoid or evade training or service in the armed forces in time of

war or national emergency is inadmissible.

2. This section states that it is not applicable to aliens who were nonimmigrants when

they departed the U.S. and who are seeking admission as nonimmigrants.

AA. Aliens previously removed or unlawfully present

1. Section 212(a)(9)(A)(i) provides that any alien who has been ordered removed

under § 235(b)(1) or at the end of proceedings under section 240 initiated upon the

alien’s arrival in the U.S. who again seeks admission within 5 years of the date of

removal (or within 20 years in the case of a second or subsequent removal or at any

time in the case of an alien convicted of an aggravated felony) is inadmissible unless

the Attorney General has consented to the alien’s applying for readmission under §

212(a)(9)(A)(iii).

2. Section 212(a)(9)(A)(ii) provides that any alien not described in § 212(a)(9)(A)(i)

who has been ordered removed under § 240 or any other provision of law or

departed the U.S. while an order of removal was outstanding and who seeks

admission within 10 years of the date of such alien’s departure or removal (or within

Fundamentals of Immigration Law 37

20 years of such date in the case of a second or subsequent removal or at any time in

the case of an alien convicted of an aggravated felony) is inadmissible.

a. Exception – Section 212(a)(9)(A)(iii) provides that § 212(a)(9)(A) shall not

apply to an alien seeking admission within a period if, prior to the date of the

alien’s reembarkation at a place outside the U.S. or attempt to be admitted

from foreign contiguous territory, the Attorney General has consented to the

alien’s reapplying for admission.

3. Section 212(a)(9)(B)(i)(I) provides that any alien (other than an alien lawfully

admitted for permanent residence) who was unlawfully present in the U.S. for a

period of more than 180 days but less than 1 year, voluntarily departed the U.S.

(whether or not pursuant to § 244(e)) prior to the commencement of proceedings

under §§ 235(b)(1) or 240, and again seeks admission within 3 years of the date of

such departure or removal is inadmissible.

4. Section 212(a)(9)(B)(i)(II) provides that any alien (other than a LPR) who has been

unlawfully present in the U.S. for one year or more and who again seeks admission

within 10 years of the date of such alien’s departure or removal from the U.S. is

inadmissible. To be rendered inadmissible for 10 years pursuant to this provision,

an alien must depart the United States after having been unlawfully present in the

United States for one year or longer. Matter of Rodarte, 23 I&N Dec. 905 (BIA

2006). Pursuant to IIRIRA, no period of an alien’s presence in the United States

prior to April 1, 1997, may be considered “unlawful presence” for the purposes of

determining an alien’s inadmissibility under § 212(a)(9)(B).

a. The Board has ruled that when an alien is unlawfully present for at least 1 year,

then leaves the U.S. and, subsequently, seeks admission within 10 years after

the departure, the alien is inadmissible under § 212(a)(9)(B)(i)(II) absent a

waiver even if the alien’s departure was not made pursuant to an order of

removal or grant of voluntary departure. Matter of Lemus-Losa, 25 I&N Dec.

734 (BIA 2012).

5. “Unlawful presence” defined – An alien is deemed to be unlawfully present in the

U.S. if the alien is present in the U.S. after the expiration of the period of stay

authorized by the Attorney General or is present in the U.S. without being admitted

or paroled. INA § 212(a)(9)(B)(ii).

a. Note: Periods of unlawful presence have been interpreted to begin on or after

April 1, 1997. Dep’t of State Cable (no. 98-State-060539) (April 4, 1998),

reprinted in 75 Interpreter Releases 543 (April 20, 1998).

b. Exceptions

(1) Minors – No period of time in which an alien is under 18 shall be

taken into account. INA § 212(a)(9)(B)(iii)(I).

Fundamentals of Immigration Law 38

(2) Asylees – No period of time in which an alien has a bona fide

application for asylum pending shall be taken into account unless

during such period the alien was employed without authorization in

the U.S. INA § 212(a)(9)(B)(iii)(II).

(3) Family unity – No period of time in which the alien is a beneficiary

of family unity protection pursuant to § 301 of the Immigration Act

of 1990 shall be taken into account. INA § 212(a)(9)(B)(iii)(III).

(4) Battered women and children – Section 212(a)(9)(B)(i) shall not

apply to an alien who demonstrates that the alien qualifies for

immigrant status under § 204(a)(1)(A)(iii),(A)(iv),(B)(ii), or (B)(iii)

and the alien has been battered or subjected to extreme cruelty by a

spouse or parent, or by a member of the spouse’s or parent’s family

residing in the same household as the alien and the spouse or parent

consented or acquiesced to such battery or cruelty, or the alien’s

child has been battered or subjected to extreme cruelty by a spouse or

parent of the alien (without the active participation of the alien in the

battery or cruelty) or by a member of the spouse’s or parent’s family

residing in the same household as the alien when the spouse or parent

consented to or acquiesced in such battery or cruelty and the alien did

not actively participate in such battery or cruelty and there was a

substantial connection between the battery or cruelty and the alien’s

violation of the terms of the alien’s nonimmigrant visa. INA §

212(a)(9)(B)(iii)(IV).

(5) Victims of severe forms of trafficking in persons – Section

212(a)(9)(B)(i) shall not apply to an alien who demonstrates that the

severe form of trafficking (as that term is defined in § 103 of the

Trafficking Victims Protection Act of 2000 (22 U.S.C. 7102)) was at

least one central reason for the alien’s unlawful presence in the

United States. INA § 212(a)(9)(B)(iii)(V).

c. Tolling for good cause – If an alien has been lawfully admitted or paroled into

the U.S., has filed, a nonfrivolous application for a change or extension of

status before the date of expiration of the period of stay authorized by the

Attorney General, and has not been employed without authorization in the

U.S. before or during the pendency of such application, the calculation of the

period of time unlawfully present in the U.S. shall be tolled during the

pendency of such application, but not to exceed 120 days. INA §

212(a)(9)(B)(iv).

d. Waiver under § 212(a)(9)(B)(v) – The Attorney General has sole discretion to

waive § 212(a)(9)(B)(i) in the case of an immigrant who is the spouse or son or

daughter of a U.S. citizen or of a LPR if it is established to the satisfaction of

the Attorney General that the refusal of admission to such immigrant would

result in extreme hardship to the citizen or LPR spouse or parent of such alien.

Fundamentals of Immigration Law 39

6. Section 212(a)(9)(C)(i) provides that any alien who (I) has been unlawfully present

in the U.S. for an aggregate period of more than 1 year or (II) has been ordered

removed under §§ 235(b)(1), 240, or any other provision of the law, is inadmissible.

a. Exception – Section 212(a)(9)(C)(i) shall not apply to an alien seeking

admission more than 10 years after the date of the alien’s last departure from

the U.S. if, prior to the alien’s reembarkation at a place outside the U.S. or

attempt to be readmitted from a foreign contiguous territory, the Attorney

General has consented to the alien’s reapplying for admission. INA §

212(a)(9)(C)(ii). However, an alien who reenters the United States without

admission after having previously been removed is inadmissible under §

212(a)(9)(C)(i)(II), even if the alien obtained the Attorney General’s

permission to reapply for admission prior to reentering lawfully. Matter of

Torres-Garcia, 23 I&N Dec. 866 (BIA 2006); see Gonzalez-Balderas v.

Holder, 597 F.3d 869 (7th Cir. 2010) (upholding Matter of Torres-Garcia);

Carrillo de Palacios v. Holder, 708 F.3d 1066 (9th Cir. 2013).

(1) In Sarango v. Att’y Gen., 651 F.3d 380 (3d Cir. 2011), the Third

Circuit held that IJs lack jurisdiction to consider requests for consent

to reapply for admission under § 212(a)(9)(C)(ii) because the plain

language of that section authorizes the Secretary of Homeland

Security, not the Attorney General, to consider these requests.

(2) An alien who is inadmissible under § 212(a)(9)(C)(i)(I) is also

ineligible for adjustment of status under § 245(f). Matter of Diaz

and Lopez, 25 I&N Dec. 188 (BIA 2010).

b. Waiver – The Secretary of Homeland Security may waive the application of §

212(a)(9)(C)(i) in the case of an alien who is a VAWA self-petitioner if there

is a connection between the alien’s battering or subjection to extreme cruelty

and the alien’s removal, departure from the United States, or reentry or

reentries into the United States; or attempted reentry into the United States.

INA § 212(a)(9)(C)(iii).

BB. Polygamists

1. Section 212(a)(10)(A) of the Act provides that any immigrant coming to the U.S. to

practice polygamy is inadmissible.

2. Note that this section is applicable only to aliens seeking to enter the U.S. as an

immigrant. It does not apply to nonimmigrants.

CC. Guardian required to accompany helpless alien

1. Section 212(a)(10)(B) makes inadmissible any alien accompanying another alien

who is inadmissible and certified under § 232(c) to be helpless from infancy,

sickness, or mental or physical disability if the accompanying alien's protection or

guardianship is required by the inadmissible alien.

Fundamentals of Immigration Law 40

DD. International child abductors

1. Section 212(a)(10)(C)(i) involves the custody of U.S. citizen children and makes

inadmissible aliens who, after a court order granting custody to a U.S. citizen of a

child having a lawful claim to U.S. citizenship, detain or withhold custody outside

the U.S. from the citizen granted custody.

2. This ground of inadmissibility exists only until the child is surrendered to the U.S.

citizen. See INA § 212(a)(10)(C)(ii).

3. However, § 212(a)(10)(C)(iii) provides that § 212(a)(10)(C)(i)-(ii) shall not apply:

a. To a government official of the United States who is acting within the scope of

his or her official duties;

b. To a government official of any foreign government if the official has been

designated by the Secretary of State at the Secretary’s sole and unreviewable

discretion; or

c. So long as the child is located in a foreign state that is a party to the Convention

on the Civil Aspects of International Child Abduction, done at The Hague on

October 25, 1980.

EE. Unlawful voters

1. Section 212(a)(10)(D)(i) provides that any alien who has voted in violation of any

Federal, State, or local constitutional provision, statute, ordinance, or regulation is

inadmissible. An exception may be available for those who reasonably believed that

they were U.S. citizens. See INA § 212(a)(10)(D)(ii).

FF. Former citizens who renounced citizenship to avoid taxation

1. Section 212(a)(10)(E) provides that any alien who is a former citizen of the U.S.

who officially renounces U.S. citizenship and who is determined by the Attorney

General to have renounced U.S. citizenship for the purpose of avoiding taxation by

the U.S. is inadmissible.

V. Grounds of deportability in removal proceedings

A. Inadmissible at time of entry or adjustment of status

1. Section 237(a)(1)(A) provides that any alien who at the time of entry or adjustment

of status was within one or more of the classes of aliens inadmissible by the law

existing at such time is deportable.

2. A waiver is available under § 237(a)(1)(H) for those who are inadmissible under §

212(a)(6)(C)(i).

Fundamentals of Immigration Law 41

B. Present in violation of law

1. Section 237(a)(1)(B) provides that any alien who is present in the U.S. in violation

of this Act or any other law of the U.S. is deportable.

C. Violated nonimmigrant status

1. Section 237(a)(1)(C)(i) provides that any alien who was admitted as a nonimmigrant

and who has failed to maintain the nonimmigrant status in which the alien was

admitted or to which it was changed under § 248, or to comply with the conditions of

any such status, is deportable.

D. Violators of conditions of entry

1. Section 237(a)(1)(C)(ii) provides that any alien whom the Secretary of Health and

Human Services certifies has failed to comply with the terms, conditions, and

controls that were imposed under § 212(g) is deportable.

E. Termination of conditional permanent residence

1. Section 237(a)(1)(D)(i) provides that any alien with permanent residence on a

conditional basis under §§ 216 or 216A who has had such status terminated under

such respective section is deportable.

a. Exception – Section 237(a)(1)(D)(ii) provides that § 237(a)(1)(D)(i) shall not

apply in the cases described in § 216(c)(4) (relating to certain hardship

waivers).

F. Alien smuggling

1. Section 237(a)(1)(E)(i) provides that any alien who (prior to the date of entry, at the

time of any entry, or within 5 years of the date of any entry) knowingly has

encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to

enter the U.S. in violation of law is deportable.

2. Section 237(a)(1)(E)(i) does not require a conviction.

a. Because § 237(a)(1)(E)(i) does not require a conviction, an IJ is not limited by

cases which prohibit looking to the factual basis of a conviction, but may

consider the underlying facts. Matter of Martinez-Serrano, 25 I&N Dec. 151,

155 (BIA 2009).

3. A conviction for transporting an illegal alien within the U.S. (rather than smuggling

across the border) was not a deportable offense under former § 241(a)(13). Matter

of I-M-, 7 I&N Dec. 389 (BIA 1957).

4. A conviction for aiding and abetting other aliens to evade and elude examination and

inspection by immigration officers in violation of 18 U.S.C. § 2(a) (2006) and 8

Fundamentals of Immigration Law 42

U.S.C. § 1325(a)(2) (2006) renders the convicted alien removable under section

237(a)(1)(E)(i). Matter of Martinez-Serrano, 25 I&N Dec. at 154-55.

5. Special rule in the case of family reunification – Section 237(a)(1)(E)(ii) provides

that § 237(a)(1)(E)(i) shall not apply in the case of an alien who is an eligible

immigrant (as defined in § 301(b)(1) of the Immigration Act of 1990), was

physically present in the U.S. on May 5, 1988, and is seeking admission as an

immediate relative or under § 203(a)(2) (including under § 112 of the Immigration

Act of 1990) or benefits under § 301(a) of the immigration Act of 1990 if the alien,

before May 5, 1988, has encouraged, induced, assisted, abetted, or aided only the

alien's spouse, parent, son, or daughter (and no other individual) to enter the U.S. in

violation of law.

6. Waiver – Section 237(a)(1)(E)(iii) provides that the Attorney General may, in the

exercise of discretion for humanitarian purposes, to assure family unity, or when it is

otherwise in the public interest, waive application of § 237(a)(1)(E)(i) in the case of

any alien lawfully admitted for permanent residence if the alien has encouraged,

induced, assisted, abetted, or aided only an individual who at the time of the offense

was the alien's spouse, parent, son, or daughter (and no other individual) to enter the

U.S. in violation of law.

G. Marriage fraud

1. Section 237(a)(1)(G)(i) provides that an alien shall be considered deportable as

having procured a visa or other documentation by fraud (within the meaning of §

212(a)(6)(i)) and to be in the U.S. in violation of this Act (within the meaning of §

237(a)(1)(B)) if the alien obtains any admission into the U.S. with an immigrant visa

or other documentation procured on the basis of a marriage entered into less than 2

years prior to such admission of the alien and which, within 2 years subsequent to

any admission of the alien in the U.S., shall be judicially annulled or terminated,

unless the alien establishes to the satisfaction of the Attorney General that such

marriage was not contracted for the purpose of evading any provisions of the

immigration laws.

2. Section 237(a)(1)(G)(ii) provides that an alien shall be considered deportable as

having procured a visa or other documentation by fraud (within the meaning of §

212(a)(6)(i)) and to be in the U.S. in violation of this Act (within the meaning of §

237(a)(1)(B)) if it appears to the satisfaction of the Attorney General that the alien

has failed or refused to fulfill the alien’s marital agreement which in the opinion of

the Attorney General was made for the purpose of procuring the alien’s admission as

an immigrant.

H. CIMT w/in 5 years of admission

1. Section 237(a)(2)(A)(i) provides that any alien who is convicted of a crime

involving moral turpitude committed within 5 years (or 10 years in the case of an

alien provided LPR status under § 245(j)) after the date of admission, and is

Fundamentals of Immigration Law 43

convicted of a crime for which a sentence of one year or longer may be imposed is

deportable.

2. History – Before 1988, deportability for conviction of a CIMT was covered in §

241(a)(4) of the Act. In 1988, when the concept of an aggravated felony was

introduced, deportability for being convicted of one was placed under §

241(a)(4)(B). Conviction for a CIMT was redesignated as § 241(a)(4)(A). In

1990, the Act was reorganized and conviction of a CIMT came under §

241(a)(2)(A)(i). In 1996, it was again moved to § 237(a)(2)(A)(i). Therefore,

many cases from before 1996 involve these various sections of the Act as the ground

of deportability.

a. Under earlier sections, the alien’s first entry or any subsequent entry could

be used as a basis for a deportation charge relating to the alien’s conviction

of a CIMT committed within 5 years of entry. Matter of A-, 6 I&N Dec.

684 (BIA 1955).

b. Also, prior to 1996, an alien convicted of a CIMT was deportable only if he

was sentenced to confinement or confined for one year or longer. The

IIRIRA changed the statute to read “for which a sentence of one year or

longer may be imposed.” See INA § 237(a)(2)(A)(i)(II).

3. Under current section 237(a)(2)(A)(i), an alien is removable if the crime was

committed within 5 years after the date of the admission by virtue of which the alien

was present in the United States when he committed the crime. Matter of Alyazji,

25 I&N Dec. 397 (BIA 2011) (overruling in part Matter of Shanu, 23 I&N Dec. 754

(BIA 2005)).

a. The 5-year clock is not reset by a new admission from within the United

States through adjustment of status because that admission merely extends

the alien’s presence. Id. at 406-07. However, if an alien adjusts status

after entering the United States without inspection, the date of adjustment

would be the date of admission for purposes of § 237(a)(2)(A)(i) because

that date would have commenced the alien’s period of presence in the United

States following an admission. Id. at 408 n.9.

b. An alien who commits a CIMT while in the United States after entering

without inspection is inadmissible under § 212(a)(6)(A)(i) and §

212(a)(2)(A)(i)(I), not deportable under § 237(a)(2)(A)(i), even if he had

been admitted to the United States at some point in the past, because the past

admissions are not tied to the period of presence during which he committed

the crime. Id. at 406, 406 n.5.

c. The “date of admission” for an alien who adjusted status pursuant to § 1 of

the Cuban Refugee Adjustment Act of November 2, 1966, Pub. L. No.

89-732, 80 Stat. 1161, is the date referred to in § 1 of that Act: “a date thirty

months prior to the filing of [the application for permanent residence] or the

Fundamentals of Immigration Law 44

date of his last arrival into the United States, which ever date is later.”

Matter of Carrillo, 25 I&N Dec. 99 (BIA 2009).

4. A waiver is available at § 237(a)(2)(A)(vi).

I. Two CIMTs

1. Section 237(a)(2)(A)(ii) provides that any alien who at any time after admission is

convicted of two or more crimes involving moral turpitude, not arising out of a

single scheme of criminal misconduct, regardless of whether confined therefor and

regardless of whether the convictions were in a single trial, is deportable.

2. The concept of “a single scheme of criminal misconduct” –

a. Notwithstanding prior circuit court precedent, the Board of Immigration

Appeals has set forth a nation-wide standard for determining whether criminal

convictions arose out of “a single scheme of criminal misconduct.” Matter of

Islam, 25 I&N Dec. 637 (BIA 2011). Therefore, Immigration Judges should

apply the standards articulated in Matter of Adetiba, 20 I&N Dec. 506 (BIA

1992).

b. In Matter of Adetiba, 20 I&N Dec. 506 (BIA 1992), the Board adopted the

analysis in Pacheco v. INS, 546 F.2d 448 (1st Cir. 1976), cert. denied, 430 U.S.

985 (1977) which states that to be a “single scheme,” the scheme must take

place at one time, meaning there must be no substantial interruption that would

allow the participant to disassociate himself from his enterprise and reflect on

what he has done. The Board also refused to conclude that Congress intended

by the “single scheme” language to insulate from deportability individuals

who formulate a plan at one time for criminal behavior involving multiple

separate crimes, while making deportable those who commit only two such

crimes without a plan and held that the statutory exception refers to acts, which

although separate crimes in and of themselves, were performed in furtherance

of a single criminal episode, such as where one crime constitutes a lesser

offense of another or where two crimes flow from and are the natural

consequence of a single act of criminal misconduct. Id.

(1) Under this analysis, it is of no consequence that the alien’s separate

crimes (such as forgery or unauthorized use of a credit card) were

committed pursuant to an elaborate plan and that the modus operandi

was the same in each instance. Id. The Board focused on the

alien’s actual receipt of money from a victim as accomplishing the

criminal objective. Id. With each act, the alien accomplished a

specific criminal objective when he obtained things of value. Id.

After each act, the alien had the opportunity to disassociate himself

from the enterprise and reflect on what he had done and the

commission of additional acts to obtain things of value did not flow

from and was not a natural consequence of the first act of criminal

misconduct. Id.

Fundamentals of Immigration Law 45

c. The statutory language of a “single scheme of criminal misconduct” was

meant to distinguish cases where there are separate and distinct crimes, but

they are performed in furtherance of a single criminal episode, such as where

two crimes flow from and are the natural consequence of a single act of

criminal misconduct. Matter of Adetiba, 20 I&N Dec. 506 (BIA 1992).

3. No single scheme was found in the following cases:

a. Robbery involving separate persons at different times. Matter of A-, 5 I&N

Dec. 470 (BIA 1953).

b. Obtaining money by false pretenses involving distinct offenses. Matter of D-,

5 I&N Dec. 728 (BIA 1954).

c. Two counts of income tax evasion with each count relating to a separate year.

Matter of J-, 6 I&N Dec. 382 (BIA 1954).

d. Forgery and uttering of different checks at different times even though both

checks were made payable to the same person. Matter of Z-, 6 I&N Dec. 167

(BIA 1954).

e. Passing forged checks on two different occasions within 10 days

notwithstanding a general criminal intent to continue to defraud victims.

Matter of B-, 8 I&N Dec. 236 (BIA 1958).

f. Using credit cards in the names of different people, with intent to defraud, and

obtaining things of value with the cards, notwithstanding that the crimes were

committed pursuant to an elaborate plan and the modus operandi was the same

in each instance. Matter of Adetiba, 20 I&N Dec. 506 (BIA 1992).

g. Use of multiple stolen credit or debit cards to obtain various items of value

from several retail outlets on five separate occasions in two counties,

notwithstanding that the crimes took place over a short period of time. Matter

of Islam, 25 I&N Dec. 637 (BIA 2011).

4. A waiver is available at § 237(a)(2)(A)(vi).

J. Convicted of an aggravated felony

1. Section 237(a)(2)(A)(iii) provides that any alien who is convicted of an aggravated

felony at any time after admission is deportable. A waiver is available at §

237(a)(2)(A)(vi).

2. An alien who initially entered the U.S. without inspection but whose conviction for

an aggravated felony was subsequent to her adjustment of status to that of a lawful

permanent resident under § 245A is deportable under § 237(a)(2)(A)(iii) as an alien

who was convicted of an aggravated felony “after admission.” Matter of Rosas, 22

Fundamentals of Immigration Law 46

I&N Dec. 616 (BIA 1999); see also Matter of Chavez-Alvarez, 26 I&N Dec. 274

(BIA 2014).

K. Convicted of high speed flight

1. Section 237(a)(2)(A)(iv) provides that any alien convicted of a violation of 18

U.S.C. § 758 (relating to high speed flight from an immigration checkpoint) is

deportable. A waiver is available at § 237(a)(2)(A)(vi).

L. Failure to register as a sex offender

1. Section 237(a)(2)(A)(v) provides that any alien who is convicted under 18 U.S.C. §

2250 is deportable. (Pursuant to the Adam Walsh Child Protection and Safety Act

of 2006).

M. Controlled substance conviction

1. Section 237(a)(2)(B)(i) provides that any alien who at any time after admission has

been convicted of a violation of (or a conspiracy or attempt to violate) any law or

regulation of a State, the U.S., or a foreign country relating to a controlled substance

(as defined in § 102 of the Controlled Substances Act (21 U.S.C. § 802)), other than

a single offense involving possession for one’s own use of 30 grams or less of

marijuana, is deportable.

2. History – Before 1990, deportability for conviction of drug offenses was covered in

§ 241(a)(11) of the Act. In 1990, the Act was reorganized and drug offenses came

under § 241(a)(2)(B)(i). In 1996, it was again moved to § 237(a)(2)(B)(i).

Therefore, many cases from before 1990 involve § 241(a)(11) as the ground of

deportability.

a. Former section 241(a)(11) did not contain the word “attempt.” However,

the Board had long held that an alien convicted of an attempt to commit a

drug offense is deportable. Matter of G-, 6 I&N Dec. 353 (BIA 1954);

Matter of Bronsztejn, 15 I&N Dec. 281 (BIA 1974).

3. The exception for a single offense of possession for one's own use of 30 grams or

less of marijuana does not apply to an alien convicted under a statute that has an

element requiring that possession of the marijuana be in a prison or other

correctional setting. Matter of Moncada, 24 I&N Dec. 62 (BIA 2007).

4. Whether the alien was convicted of possession of marijuana “for one’s own use” is a

circumstance-specific inquiry, which does not involve the application of the

categorical approach. Matter of Dominguez-Rodriguez, 26 I&N Dec. 408 (BIA

2014); Matter of Davey, 26 I&N Dec. 37 (BIA 2012).

5. A sentence to confinement is not necessary for an alien to be removable under this

section. INA § 237(a)(2)(B)(i).

Fundamentals of Immigration Law 47

6. Even if the imposition (rather than the execution) of sentence was suspended, the

alien is still removable. Matter of Tucker, 15 I&N Dec. 337 (BIA 1975); Matter of

Wong, 12 I&N Dec. 721 (BIA 1968); Matter of Gonzalez de Lara, 12 I&N Dec. 806

(BIA 1968); Matter of Johnson, 11 I&N Dec. 401 (BIA 1965).

7. In general, the determination regarding whether the conviction was for a controlled

substance is a categorical inquiry. Where the state or foreign entity criminalizes

controlled substances which are not included in the Controlled Substances Act, an

Immigration Judge may apply the modified categorical approach and examine the

conviction record to determine what controlled substance was at issue. See, e.g.,

Ragasa v. Holder, 752 F.3d 1173 (9th Cir. 2014).

8. Where a state or foreign record of conviction is silent as to the controlled substance

involved, and the state or foreign entity criminalizes controlled substances which are

not listed in the Controlled Substances Act, the Immigration Judge should consider

whether there is a realistic probability that the state would prosecute such conduct

related to those additional controlled substances. Matter of Ferreira, 26 I&N Dec.

415 (BIA 2014).

9. To trigger removability, possession of drug paraphernalia must be linked to a

specific controlled substance. Mellouli v. Lynch, 135 S. Ct. 1980 (2015).

10. A conviction under a general solicitation statute for conspiracy to commit a crime

relating to a controlled substance renders an alien removable in most circuits.

Matter of Zorilla-Vidal, 24 I&N Dec. 768 (BIA 2009).

a. The Ninth Circuit disagrees with this principle with respect to general

solicitation or accessory statutes. Coronado-Durazo v. INS, 123 F.3d 1322

(9th Cir. 1997). However, an alien may be removable for solicitation,

conspiracy, or attempt in the Ninth Circuit if the statute under which the

alien was convicted is specific to controlled substances. See Mielewczyk v.

Holder, 575 F.3d 992 (9th Cir. 2009).

N. Drug abusers and addicts

1. Section 237(a)(2)(B)(ii) provides that any alien who is, or at any time after

admission has been, a drug abuser or addict is deportable.

O. Firearm offenses

1. Section 237(a)(2)(C) provides that any alien who at any time after admission is

convicted under any law of purchasing, selling, offering for sale, exchanging, using,

owning, possessing, or carrying, or of attempting or conspiring to purchase, sell,

offer for sale, exchange, use, own, possess, or carry, any weapon, part, or accessory

which is a firearm or destructive device (as defined in 18 U.S.C. § 921(a)) in

violation of any law is deportable.

Fundamentals of Immigration Law 48

2. History lesson - Before 1990, deportability for conviction of firearm offenses was

covered in § 241(a)(14) of the Act. In 1990, the Act was reorganized and firearm

offenses came under § 241(a)(2)(C). In 1996, it was again moved to §

237(a)(2)(C). Therefore, many cases from before 1996 involve former section

241(a)(2)(C) as the ground of deportability.

a. Prior statutes and retroactivity – Former section 241(a)(2)(C) of the Act

represented the enactment of a new statutory provision rather than a change

of the numerical designation of former section 241(a)(14) because it

increased the number of weapons offenses that render an alien deportable.

That former section also completely superseded all former versions of that

deportation ground and was not limited regarding the date when a conviction

must take place. Therefore, aliens were deportable who were convicted

before the enactment of former section 241(a)(2)(C) as well as after.

Matter of Chow, 20 I&N Dec. 647 (BIA 1993), aff'd sub nom. Chow v. INS, 9

F.3d 1547 (5th Cir. 1993). Present section 237(a)(2)(C) also appears to

include aliens convicted before 1996.

3. Definition of “firearm” - 18 U.S.C. § 921(a)(3) defines a firearm as:

a. any weapon (including a starter gun) which will or is designed to or may

readily be converted to expel a projectile by the action of an explosive;

b. the frame or receiver of any such weapon;

c. any firearm muffler or firearm silencer; or

d. any destructive device. HOWEVER:

e. the definition does not include an antique firearm.

4. Definition of “destructive device” - 18 U.S.C. § 921(a)(4) defines a destructive

device as:

a. any bomb, grenade, rocket (having a propellant charge of more than 4 ounces),

missile (having an explosive or incendiary charge of more than 1/4 ounce),

mine, or similar device which is explosive, incendiary, or contains poison gas;

b. any weapon (other than shotguns or shotgun shells for sporting use) which will

or may be converted to expel a projectile by explosive or other propellant and

which has a barrel with a bore of more than ½ inch in diameter; or

c. any combination of parts from which a destructive device may be assembled.

5. The antique firearm exception to the definition of “firearm” in 18 U.S.C. § 921(a)(3)

is an affirmative defense that must be sufficiently raised by an alien charged under

section 237(a)(2)(C) of the Act. Matter of Mendez-Orellana, 25 I&N Dec. 254

(BIA 2010). Where the government has presented evidence that an alien has been

Fundamentals of Immigration Law 49

convicted of an offense involving a firearm, it has met its burden of presenting clear

and convincing evidence of deportability, and the burden then shifts to the

respondent to show a reasonable probability that the state would prosecute an

individual for an offense regarding an antique firearm. Matter of Chairez-Castrejon,

26 I&N Dec. 349 (BIA 2014).

6. A conviction for improper delivery of a firearm under 18 U.S.C. § 922(e) qualifies

as a firearms offense under section 237(a)(2)(C), despite the fact that the

enumerated list does not mention delivery. Malilia v. Holder, 632 F.3d 598 (9th

Cir. 2011).

7. Sentence enhancement or element of the offense–

a. The sentence enhancement provision of section 12022(a) of the California

Penal Code, which allows for the imposition of an additional and consecutive

term of imprisonment upon a person convicted of a felony where any one of

the principals was armed with a firearm, does not create a separate offense, but

rather imposes additional punishment, and therefore does not constitute a

conviction under California law. Matter of Rodriguez-Cortes, 20 I&N Dec.

587 (BIA 1992). Therefore, an alien who was convicted of 5 counts of

attempted murder in the second degree and whose sentence under one count

was enhanced pursuant to section 12022(a) of the California Penal Code

because a codefendant was armed with a firearm in the attempted commission

of the felony has not been convicted of a firearm offense under California law

and is not deportable under former section 241(a)(2)(C) of the Act. Id.

b. A conviction for assault in the third degree under section 9A.36.031(1)(f) of

the Revised Code of Washington is not a firearm offense where use of a

firearm is not an element of the offense and a respondent so convicted is not

deportable under former section 241(a)(2)(C) of the Act. Matter of

Perez-Contreras, 20 I&N Dec. 615 (BIA 1992). In this case, no element of

the crime to which the respondent entered a plea of guilty related to the use of

a weapon. Although the criminal information stated that the respondent used

a pistol in the assault, he was not charged with use of a pistol; and did not plead

guilty to such use.

c. A respondent convicted of assault with a firearm, in violation of California

Penal Code section 245(a)(2), has been convicted of a firearms violation and is

deportable under former section 241(a)(2)(C) of the Act. Matter of

Montenegro, 20 I&N Dec. 603 (BIA 1992), superseded by statute on other

grounds as recognized by Matter of Blake, 23 I&N Dec. 722 (BIA 2005),

review granted, cause remanded by Blake v. Carbone, 489 F.3d 88 (2d Cir.

2007). Although the case primarily involved eligibility for a waiver under

former section 212(c) of the Act and the Board did not discuss at length the

issue of deportability, it seems that the respondent was deportable under

section 241(a)(2)(C) because the use of a firearm was an element of the

offense specifically stated in the statute. The Board also rejected an argument

that because the respondent's conviction for assault with a firearm could also

Fundamentals of Immigration Law 50

render him excludable under section 212(a)(2)(A)(i)(I) of the Act as an alien

convicted of a CIMT, he should be allowed to apply for a waiver under section

212(c).

d. An alien convicted under 18 U.S.C. § 924(c)(1) for use of a firearm during a

drug trafficking crime is deportable under former section 241(a)(2)(C) of the

Act as an alien convicted of a firearm violation as well as under former section

241(a)(2)(A)(iii) of the Act as an alien convicted of an aggravated felony.

Matter of K-L-, 20 I&N Dec. 654 (BIA 1993). In this case, the Board

distinguished its decision in Matter of Rodriguez-Cortes, 20 I&N Dec. 587

(BIA 1992) and held that 18 U.S.C. § 924(c)(1) creates an offense separate

from the underlying offenses and is not merely a sentence enhancement.

e. An alien convicted of the first degree felonies of armed burglary and robbery

with a firearm under sections 810.02 and 812.13 of the Florida Statutes was

convicted of firearm offenses and therefore deportable under former section

241(a)(2)(C) of the Act because the use of a firearm was an essential element

of the crimes, i.e. the use of a firearm elevated the crimes to first degree

felonies and triggered a mandatory minimum sentence as distinguished from a

statutory sentence enhancement. Matter of P-F-, 20 I&N Dec. 661 (BIA

1993).

f. Although section 775.087 of the Florida Statutes is, on its face, a penalty

enhancement provision designed to raise the penalty for conviction of a felony

(actually the degree of the felony) where the felony is committed with the use

of a firearm, under Florida case law, use of a firearm becomes an element of

the substantive offense of first degree murder with a firearm where the

elements of murder under section 782.04 of the Florida Statutes and use of a

firearm under section 775.087 of the Florida Statutes are charged and proven.

Matter of Lopez-Amaro, 20 I&N Dec. 668 (BIA 1993), aff'd Lopez-Amaro v.

INS, 25 F.3d 986 (11th Cir. 1994). Therefore, a conviction for first degree

murder in violation of sections 782.04 and 775.087 of the Florida Statutes

constitutes a firearms offense under former section 241(a)(2)(C) of the Act

because the use of a firearm is deemed to be an element of the substantive

offense. Id.

8. Before a circuit court, the alien argued that for his conduct to trigger former section

241(a)(2)(C), the alien contends that he not only need have made false statements in

connection with a firearms purchase, he must also have been the individual doing

the buying. Hall v. INS, 167 F.3d 852 (4th Cir. 1999). The court, in dismissing the

appeal, held that nothing on the face of former section 241(a)(2)(C), limits the

statute to the actual purchaser of the firearm. Id.

9. The First Circuit has held that the offense of “control” of a firearm in violation of

Rhode Island section 11-47-7 constitutes constructive possession of a firearm.

Aybar-Alejo v. INS, 230 F.3d 487 (1st Cir. 2000).

Fundamentals of Immigration Law 51

10. Evidence

a. Apply a categorical approach to determining whether the offense constitutes a

firearm violation within the meaning of section 241(a)(2)(C) of the Act.

Matter of Teixeira, 21 I&N Dec. 316 (BIA 1996); Matter of Madrigal, 21 I&N

Dec. 323 (BIA 1996); Matter of Pichardo, 21 I&N Dec. 330 (BIA 1996).

P. Miscellaneous crimes

1. Section 237(a)(2)(D) provides that an alien is deportable who at any time has been

convicted (the judgment on such conviction becoming final) of, or has been so

convicted of a conspiracy or attempt to violate:

a. Any offense under chapter 37 (relating to espionage), chapter 105 (relating to

sabotage), or chapter 115 (relating to treason and sedition) of title 18, United

States Code, for which a term of imprisonment of 5 or more years may be

imposed;

b. Any offense under 18 U.S.C. § 871 or 960;

c. A violation of any provision of the Military Selective Service Act (50 U.S.C.

App 451 et seq. or the Trading With the Enemy Act (50 U.S.C. App. 1 et seq.);

d. A violation of §§ 215 or 278 of the Act.

Q. Crimes of domestic violence, stalking, and child abuse

1. Section 237(a)(2)(E)(i) provides that any alien who at any time after entry is

convicted of a crime of domestic violence, a crime of stalking, or a crime of child

abuse, child neglect, or child abandonment is deportable.

2. Definition of “a crime of domestic violence.” Section 237(a)(2)(E)(i) provides

“For purposes of this clause, the term ‘crime of domestic violence’ means any crime

of violence (as defined in section 16 of title 18, United States Code) against a person

committed by a current or former spouse of the person, by an individual with whom

the person shares a child in common, by an individual who is cohabiting with or has

cohabited with the person as a spouse, by an individual similarly situated to a spouse

of the person under the domestic or family violence laws of the jurisdiction where

the offense occurs, or by any other individual against a person who is protected from

that individual’s acts under the domestic or family violence laws of the United

States or any State, Indian tribal government, or unit of local government.”

a. “Crime of Domestic Violence”–

(1) To qualify as a crime of domestic violence, a crime must qualify

categorically as a “crime of violence” under 18 U.S.C. § 16, and be

directed against an individual with whom the perpetrator has a

Fundamentals of Immigration Law 52

domestic relationship such that it may be considered a “crime of

domestic violence” under section 237(a)(2)(E)(i) of the Act. Matter

of Sanudo, 23 I&N Dec. 968 (BIA 2006); see also Matter of

Velasquez, 25 I&N Dec. 278 (BIA 2010); Matter of Milion-Dubon,

25 I&N Dec. 197 (BIA 2010).

(2) The Fourth Circuit has held that courts should apply a

“circumstance-specific” approach rather than a categorical one to

determine whether a conviction was for domestic violence.

Hernandez-Zavala v. Lynch, 806 F.3d 259, (4th Cir. 2015).

(3) The Ninth Circuit has held that the definition of a “crime of violence”

in 18 U.S.C. § 16(b) is void for vagueness. Dimaya v. Lynch, 803

F.3d 1110 (9th Cir. 2015); but see also Carrillo v. Holder, 781 F.3d

1155 (9th Cir. 2015) (holding that California Penal Code § 273.5(a)

is categorically a crime of domestic violence).

b. Child abuse – Child abuse is not defined in the Act. However, the Board of

Immigration Appeals has recognized that child abuse encompasses a broad

range of activity, including any form of cruelty to a child’s physical, moral or

mental well-being. Matter of Rodriguez-Rodriguez, 22 I&N Dec. 991 (BIA

1999). The Board subsequently held that the term “crime of child abuse”

means any offense involving an intentional, knowing, reckless, or criminally

negligent act or omission that constitutes maltreatment of a person under 18

years old or that impairs such a person’s physical or mental well-being,

including sexual abuse or exploitation. The Board also held that whether a

person is removable based on a conviction for a “crime of child abuse” is

determined by the elements of the alien’s offense, as reflected in the statutory

definition of the crime or admissible portions of the conviction record.

Matter of Velazquez-Herrera, 24 I&N Dec. 503 (BIA 2008).

(1) The Board has held the term “crime of child abuse” is not limited to

offenses requiring proof of injury to the child. Matter of Soram, 25

I&N Dec. 378, 381 (BIA 2010); see also Florez v. Holder, 779 F.3d

207 (2d Cir. 2015). The phrase “an act or omission that constitutes

maltreatment of child” is sufficiently broad to encompass

endangerment-type crimes, including a crime in violation of section

18-6-401(1)(a) of the Colorado Revised Statutes. Matter of Soram,

25 I&N Dec. at 383.

(2) However, the Ninth Circuit has held that a conviction for child

endangerment, in violation of California Penal Code section 273a(b),

is not categorically a crime of child abuse within the meaning of

section 237(a)(2)(E)(i) because it reaches conduct that creates only

potential harm to a child and does not require actual injury. Fregozo

v. Holder, 576 F.3d 1030 (9th Cir. 2009).

Fundamentals of Immigration Law 53

R. Violators of protection orders

1. Section 237(a)(2)(E)(ii) provides that any alien who at any time after entry is

enjoined under a protection order issued by a court and whom the court determines

has engaged in conduct that violates the portion of a protection order that involves

protection against credible threats of violence, repeated harassment, or bodily injury

to the person or persons for whom the protection order was issued is deportable.

2. Section 237(a)(E)(ii) requires that an alien violate part of the protection order that

“involves protection against violence, threats, or harassment” not that the alien

actually engage in violent, threatening, or harassing behavior. Szalai v. Holder,

572 F.3d 975, 981 (9th Cir. 2009); Hoodho v. Holder, 558 F.3d 184 (2d Cir. 2009).

See Matter of Strydom, 25 I&N Dec. 507 (BIA 2011).

S. Failure to register

1. Section 237(a)(3)(A) provides that an alien who has failed to comply with the

provisions of section 265 is deportable, unless the alien establishes to the

satisfaction of the Attorney General that such failure was reasonably excusable or

was not willful.

a. Section 265 requires certain aliens to notify the Attorney General in writing of

each change of address and new address within 10 days of a change of address.

2. Conviction for failure to register or falsification of documents–

a. Section 237(a)(3)(B) provides that any alien is deportable who at any time has

been convicted:

(1) under section 266(c) of the Act or under section 36(c) of the Alien

Registration Act, 1940,

(2) of a violation of, or an attempt or a conspiracy to violate, any

provision of the Foreign Agents Registration Act of 1938 (22 U.S.C.

§ 611 et seq.), or

(3) of a violation of, or an attempt or a conspiracy to violate, 18 U.S.C.

§ 1546 (relating to fraud and misuse of visas, permits, and other entry

documents).

b. The parenthetical in (3) has been held to be “merely descriptive” rather than

“limiting” in the kinds of fraud the statute describes. Gourche v. Holder, 663

F.3d 882 (7th Cir. 2011).

T. Document fraud

1. Section 237(a)(3)(C)(i) provides that an alien who is the subject of a final order for

violation of § 274C is deportable.

Fundamentals of Immigration Law 54

2. Waiver – Section 237(a)(3)(C)(ii) provides that the Attorney General may waive §

237(a)(3)(C)(i) in the case of an alien lawfully admitted for permanent residence if

no previous civil money penalty was imposed against the alien under § 274C and the

offense was incurred solely to assist, aid, or support the alien’s spouse or child (and

no other individual).

U. Falsely claiming citizenship

1. Section 237(a)(3)(D)(i) provides that any alien who falsely represents, or has falsely

represented, himself to be a citizen of the U.S. for any purpose or benefit under the

Act (including § 274A) or any Federal or State law is deportable. A false

representation of United States citizenship for the purpose of obtaining employment

from a private employer is considered to be done for a “purpose or benefit” under

the Act. Muiruri v. Lynch, 803 F.3d 984 (8th Cir. 2015); Ferrans v. Holder, 612

F.3d 528 (6th Cir. 2010); Theodros v. Gonzales, 490 F.3d 396 (5th Cir. 2007);

Kechkar v. Gonzales, 500 F.3d 1080, 1084 (10th Cir. 2007).

2. Cases in which a “purpose or benefit” was not found or was otherwise in dispute

include: Richmond v. Holder, 714 F.3d 725 (7th Cir. 2013); Castro v. Att’y Gen. of

the United States, 671 F.3d 356 (3d Cir. 2012); Hassan v. Holder, 604 F.3d 915 (6th

Cir. 2010).

3. An alien who reasonably believed that he was a citizen may fall under an exception

at § 237(a)(3)(D)(ii).

V. National security and related grounds

1. Section 237(a)(4)(A) provides that any alien is deportable who has engaged, is

engaged, or at any time after admission engages in:

a. any activity to violate any law of the U.S. relating to espionage or sabotage or

to violate or evade any law prohibiting the export from the U.S. of goods,

technology, or sensitive information,

b. any other criminal activity which endangers public safety or national security,

c. any activity a purpose of which is the opposition to, or the control or overthrow

of, the Government of the U.S. by force, violence, or other unlawful means.

W. Terrorist activities

1. Section 237(a)(4)(B) of the Act [as amended by the REAL ID Act of 2005] provides

that any alien who has engaged, is engaged, or at any time after admission engages

in any terrorist activity (as defined in § 212(a)(3)(B), (F)) is deportable.

Fundamentals of Immigration Law 55

X. Adverse foreign policy consequences

1. Section 237(a)(4)(C)(i), former section 241(a)(4)(C)(i) of the Act provides that an

alien whose presence or activities in the U.S. the Secretary of State has reasonable

ground to believe would have potentially serious adverse foreign policy

consequences for the U.S. is deportable.

2. In order to establish removability under this section, the DHS has the burden of

proving by clear and convincing evidence that the Secretary of State has made a

facially reasonable and bona fide determination that an alien’s presence or activities

in the United States would have potentially serious adverse foreign policy

consequences for the United States. Matter of Ruiz-Massieu, 22 I&N Dec. 833

(BIA 1999). A letter from the Secretary of State conveying the Secretary’s

determination that an alien’s presence in this country would have potentially serious

adverse foreign policy consequences for the United States, and stating facially

reasonable and bona fide reasons for that determination, is presumptive and

sufficient evidence that the alien is removable under § 237(a)(4)(C)(i), and the

Service is not required to present additional evidence of deportability. Id.

3. Extradition proceedings are separate and apart from any immigration proceeding

and the Government’s success or failure in obtaining an order of extradition has no

effect on removal proceedings. Matter of McMullen, 17 I&N Dec. 542, 548 (BIA

1980), rev’d on other grounds, 658 F.2d 1312 (9th Cir. 1981), on remand, Matter of

McMullen, 19 I&N Dec. 90 (BIA 1984), aff’d, 788 F.2d 591 (9th Cir. 1986),

overruled in part on other grounds by Barapind v. Enomoto, 400 F.3d 744 (9th Cir.

2005); Matter of Ruiz-Massieu, 22 I&N Dec. 833 (BIA 1999).

4. Exceptions – Section 237(a)(4)(C)(ii) provides that the exceptions described in

clauses (ii) and (iii) of § 212(a)(3)(C) shall apply to deportability under §

237(a)(4)(C)(i) in the same manner as they apply to inadmissibility under §

212(a)(3)(C)(i).

Y. Assisted in Nazi persecution or engaged in genocide

1. Section 237(a)(4)(D) provides that any alien described in clause (i) or (ii) of §

212(a)(3)(E) is removable. See Matter of D-R-, 25 I&N Dec. 445 (BIA 2011).

Z. Public Charge

1. Section 237(a)(5) provides that any alien who, within 5 years after the date of entry,

has become a public charge from causes not affirmatively shown to have arisen

since entry is deportable.

AA. Unlawful voters

1. Section 237(a)(6)(A) provides that any alien who has voted in violation of any

Federal, state, or local constitutional provision, statute, ordinance, or regulation is

deportable. An alien who reasonably believed that he was a U.S. citizen may fall

under an exception at § 237(a)(6)(B).

Fundamentals of Immigration Law 56

BB. Deportation of certain nonimmigrants prohibited without approval

1. Section 237(b) provides that an alien admitted as a nonimmigrant under the

provisions of either § 101(a)(15)(A)(i) or 101(a)(15)(G)(i), and who fails to

maintain a status under either of those provisions, shall not be required to depart

from the U.S. without the approval of the Secretary of State, unless such alien is

subject to deportation under § 237(a)(4).

CC. Waiver under section 237(c) for special immigrants

1. Section 237(c) provides that the following grounds of deportability shall not apply

to a special immigrant described in § 101(a)(27)(J) [an immigrant declared

dependent on a juvenile court] based upon circumstances that existed before the date

the alien was provided such special immigrant status:

a. Section 237(a)(1)(A) - inadmissible at time of entry for grounds of

inadmissibility other than:

(1) Section 212(a)(2) - criminal & related grounds, and

(2) Section 212(a)(3) - national security, terrorist activity, & related

grounds.

b. Section 237(a)(1)(B) - in the U.S. in violation of law.

c. Section 237(a)(1)(C) - violated nonimmigrant status or condition of entry.

d. Section 237(a)(1)(D) - termination of conditional residence.

e. Section 237(a)(3)(A) - failure to report change of address.

VI. Procedure in removal proceedings

A. Notice to the alien

1. The charging document– Notice to Appear (“NTA”). Section 239(a)(1) provides

that in removal proceedings under § 240, written notice (referred to as a notice to

appear) shall be given in person to the alien or, if personal service is not practicable,

through service by mail to the alien or the alien's counsel of record and shall specify

the following:

a. the nature of the proceedings against the alien;

b. the legal authority under which the proceedings are conducted;

c. the acts or conduct alleged to be in violation of the law;

Fundamentals of Immigration Law 57

d. the charges against the alien and the statutory provisions alleged to have

been violated;

e. the right to be represented by counsel;

f. the requirement that the alien must immediately provide the Attorney

General with a written record of any address and telephone number (if any)

at which the alien may be contacted;

g. the requirement that the alien must provide the Attorney General

immediately with a written record of any change of the alien's address or

telephone number;

h. the consequences under § 240(b)(5) of failure to provide address and

telephone information;

i. the time and place at which the proceeding will be held; and

j. the consequences under § 240(b)(5) of the failure, except under exceptional

circumstances, to appear at such proceedings.

2. Section 239(a)(2)(A) provides that in the case of any change or postponement in the

time and place of such proceedings, a written notice shall be given in person to the

alien (or, if personal service is not practicable, through service by mail to the alien or

to the alien's counsel of record, if any) specifying the new time or place of the

proceedings and the consequences under § 240(b)(5) of failing, except under

exceptional circumstance, to attend such proceedings.

a. Exception: Section 239(a)(2)(B) provides that in the case of an alien not in

detention, a written notice shall not be required if the alien has failed to

provide the address required.

3. Securing of counsel – Section 239(b)(1) provides that in order that an alien be

permitted the opportunity to secure counsel before the first hearing date in

proceedings under § 240, the hearing date shall not be scheduled earlier than 10 days

after the service of the notice to appear, unless the alien requests in writing an earlier

hearing date.

a. Free legal service provider list – Section 239(b)(2) provides that the Attorney

General shall provide lists (updated not less often than quarterly) of persons

who have indicated their availability to represent pro bono aliens in

proceedings under § 240. See 8 C.F.R. § 1003.61 et seq.

b. Rule of construction – Section 239(b)(3) states that nothing in section 239(b)

may be construed to prevent the Attorney General from proceeding against an

alien pursuant to section 240 if the 10 days has elapsed and the alien has failed

to secure counsel.

Fundamentals of Immigration Law 58

c. All of the above would lead to the conclusion that the alien has only 10 days in

which to acquire counsel. However 8 C.F.R. § 1240.10(a)(1) provides that an

IJ shall advise a respondent of the right to be represented and to determine if

the alien desires representation. If the alien desires representation, the

hearing is to be continued to allow him to seek counsel. See Matter of Michel,

21 I&N Dec. 1101 (BIA 1998).

d. Failure to advise an alien of the availability of free legal service providers, or

failure to provide an alien with a copy of the list of pro bono legal service

providers, may constitute a due process violation for which no showing of

prejudice is required. See Leslie v. Att’y Gen. of the United States, 611 F.3d

171 (3d Cir. 2010); Picca v. Mukasey, 512 F.3d 75 (2d Cir. 2008).

4. Prompt initiation of removal – Section 239(d)(1) provides that in the case of an alien

who is convicted of an offense which makes the alien deportable, the Attorney

General shall begin any removal proceeding as expeditiously as possible after the

date of the conviction. However, § 239(d)(2) provides that § 239(d)(1) shall not be

construed to create any substantive or procedural right or benefit that is legally

enforceable by any party against the U.S. or its agencies or officers or any other

person.

5. Termination of parole – The Board held that exclusion proceedings could not be

instituted against a paroled alien who is entitled by regulation to written notice of the

termination of parole until the alien receives such written notice. Matter of O, 16

I&N Dec. 344 (BIA 1977). No definition of the term “parole” is contained in the

Act, the regulations, or any judicial or administrative decision. Id. At the time

this decision was made, it appears that the regulations provided for written notice to

all paroled aliens. The current regulations provide for termination of parole as

follows:

a. Automatic termination under 8 C.F.R. § 212.5(e)(1)(i) & (ii). Parole is

automatically terminated without written notice:

(1) Upon the paroled alien’s departure from the U.S., or

(2) At the expiration of the time for which parole was authorized.

b. Termination on notice under 8 C.F.R. § 212.5(e)(2) – In all cases not covered

above, parole must be terminated upon written notice to the alien:

(1) Upon accomplishment of the purpose for which parole was

authorized has been accomplished (apparently upon the happening of

an event rather than upon the expiration of a period of time), or

(2) When the DD or Chief Patrol Agent in charge of the area where the

alien is located determines that neither humanitarian reasons nor

public benefit warrants the continued presence of the alien in the

U.S.

Fundamentals of Immigration Law 59

(3) However, 8 C.F.R. § 212.5(e)(2)(i) provides that when a charging

document is served on the alien, the charging document will

constitute written notice of termination of parole, unless otherwise

specified.

(4) 8 C.F.R. § 212.5(e)(2)(ii) also provides that an alien granted parole

into the United States after enactment of the Immigration Reform

and Control Act of 1986 (“IRCA”) for other than the specific

purpose of applying for adjustment of status under § 245A shall not

be permitted to avail himself of the privilege of adjustment

thereunder. Failure to abide by this provision through making such

an application will subject the alien to termination of parole status

and institutions of proceedings under §§ 235 and 236 (should read

239 and 240) without the written notice of termination required by 8

C.F.R. § 212.5(e)(2)(i).

B. Service of the NTA

1. Section 239(a)(1) provides that in removal proceedings under § 240, written notice

(the NTA) shall be given in person to the alien or, if personal service is not

practicable, through service by mail to the alien or the alien’s counsel of record.

2. Persons confined – 8 C.F.R. § 103.5a(c)(2)(i) provides that if a person is confined in

a penal or mental institution or hospital and is competent to understand the nature of

the proceedings initiated against him, service shall be made both on him and the

person in charge of the institution or hospital. If the confined person is not

competent to understand, service shall be made only on the person in charge of the

institution or hospital and such service will be deemed service on the confined

person.

3. Minors and anyone suffering from mental incompetency

. 8 C.F.R.

§ 103.5a(c)(2)(ii) provides that in case of mental incompetency, whether or not

confined in an institution, and in the case of a minor under 14 years of age, service

shall be made upon the person with whom the incompetent or minor resides.

a. If an individual is incompetent, service should be made on three individuals:

(1) a person with whom the respondent resides, who, when the

respondent is detained in a penal or mental institution, will be

someone in a position of demonstrated authority in the institution or

his or her delegate and, when the respondent is not detained, will be a

responsible party in the household, if available;

(2) whenever applicable or possible, a relative, guardian, or person

similarly close to the respondent;

Fundamentals of Immigration Law 60

(3) in most cases, the respondent. Matter of E-S-I-, 26 I&N Dec. 136

(BIA 2013).

b. The Board has reaffirmed that service on an adult is only required when the

minor is under 14 years of age. Matter of Cubor-Cruz, 25 I&N Dec. 470

(BIA 2011).

c. When a minor is detained by the Service, his residence is the particular setting

in which he is detained because that setting is the alien’s actual dwelling place.

Matter of Amaya, 21 I&N Dec. 583 (BIA 1996). Therefore, service of an

OSC was held to be properly made on the director of the facility in which the

minor is detained. Id.

d. A minor respondent, who could not be expected to attend immigration

proceedings on her own, was properly notified of her hearing, through proper

mailing of a Notice to Appear (Form I-862) to the last address provided by her

parent, with whom she was residing. Matter of Gomez-Gomez, 23 I&N Dec.

522 (BIA 2002). Although the headnote states that the NTA was served by

mail, the decision indicates it was personally served and the notice of the

hearing was served by mail.

e. The regulations governing service of a NTA on a minor respondent do not

explicitly require service on the parent or parents in all circumstances. Matter

of Mejia-Andino, 23 I&N Dec. 533, 536 (BIA 2002). If a minor respondent’s

parents are not present in the U.S., service on an uncle or other near relative

accompanying the child may suffice. Id. However, when it appears that the

minor child will be residing with her parents in the U.S., the regulation

requires service on the parents, whenever possible, in addition to service that

may be made on an accompanying adult or more distant relative. Id.

Therefore, removal proceedings against a minor under 14 years of age were

properly terminated because service of the NTA failed to meet the

requirements of 8 C.F.R. § 103.5a(c)(2)(ii), as it was served only on a person

identified as the respondent’s uncle, and no effort was made to serve the notice

on the respondent’s parents, who apparently live in the U.S. Id.

(1) Note: The Ninth Circuit has held that when the Government

releases a minor alien into an adult’s custody pursuant to its juvenile

release and notice regulations, it must serve notice of the alien’s

rights and responsibilities upon that adult if the alien is under 18.

Flores-Chavez v. Ashcroft, 362 F.3d 1150 (9th Cir. 2004); but see

Matter of Cubor-Cruz, 25 I&N Dec. 470 (BIA 2011). Other

Circuits have disagreed with or called into doubt this interpretation.

Llanos-Fernandez v. Mukasey, 35 F.3d 79 (2d Cir. 2008);

Lopez-Dupon v. Holder, 609 F.3d 642 (5th Cir. 2010); Llapa-Sinchi

v. Mukasey, 520 F.3d 897 (8th Cir. 2008)

(2) Note: The Second Circuit has held that when DHS fails to properly

serve the NTA pursuant to 8 C.F.R. § 103.5a(c)(2)(ii), that failure

Fundamentals of Immigration Law 61

implicates a minor’s fundamental rights only where the minor was

prevented from receiving notice of the NTA and a meaningful

opportunity to participate in the minor’s removal proceedings.

Nolasco v. Holder, 637 F.3d 159 (2d Cir. 2011).

4. Section 239(c) provides that service by mail of the NTA shall be sufficient if there is

proof of attempted delivery to the last address provided by the alien in accordance

with § 239(a)(1)(F).

5. The violation of former 8 C.F.R. § 242.1(c), with respect to a requirement that the

contents of an Order to Show Cause (“OSC”) be explained to an alien under certain

circumstances when the OSC is served, did not necessarily result in prejudice to the

alien. The application of this provision is addressed in Matter of Hernandez, 21

I&N Dec. 224 (BIA 1996).

C. Cancellation of the NTA, motions to dismiss and remand, and termination by the IJ

1. Cancellation of the NTA

a. 8 C.F.R. § 239.2(a) provides that any officer authorized by 8 C.F.R. § 239.1(a)

to issue a NTA may cancel such notice prior to jurisdiction vesting with the IJ

provided the officer is satisfied that:

(1) The respondent is a national of the U.S.;

(2) The respondent is not deportable or inadmissible under immigration

laws;

(3) The respondent is deceased;

(4) The respondent is not in the U.S.;

(5) The NTA was issued for the respondent’s failure to file a timely

petition as required by § 216(c) of the Act, but the failure to file was

excused in accordance with § 216(d)(2)(B);

(6) The NTA was improvidently issued; or

(7) Circumstances of the case have changed after the NTA was issued to

such an extent that continuation is no longer in the best interest of the

government.

b. A decision by DHS to institute removal or other proceedings, or to cancel a

NTA or other charging document before jurisdiction vests with the IJ, involves

the exercise of prosecutorial discretion and is not a decision that the IJ or the

Board may review. Matter of G-N-C-, 22 I&N Dec. 281 (BIA 1998).

Fundamentals of Immigration Law 62

2. Motion to dismiss – 8 C.F.R. § 1239.2(c) provides that after commencement of

proceedings under 8 C.F.R. § 1003.14, the Service may move for dismissal of the

matter on the grounds set forth above. Dismissal of the matter shall be without

prejudice to the alien or the Service.

a. Once the charging document is filed with the Immigration Court and

jurisdiction is vested in the IJ, the Service may move to dismiss the

proceedings, but it may not simply cancel the charging document. Matter of

G-N-C-, 22 I&N Dec. 281 (BIA 1998).

b. The IJ is not required to terminate proceedings upon the Service’s invocation

of prosecutorial discretion but rather must adjudicate the motion on the merits.

Matter of G-N-C-, 22 I&N Dec. 281 (BIA 1998); see also Matter of Avetisyan,

25 I&N Dec. 688, 695 n.6 (BIA 2012) (noting when termination of

proceedings typically occurs).

3. Motion for remand – 8 C.F.R. § 1239.2(d) provides that after commencement of the

hearing, the Service may move for remand of the matter to district jurisdiction on the

ground that the foreign relations of the U.S. are involved and require further

consideration. Remand of the matter shall be without prejudice to the alien or the

Service.

4. Termination by IJ – 8 C.F.R. § 1239.2(f) provides that an IJ may terminate removal

proceedings to permit the alien to proceed to a final hearing on a pending application

or petition for naturalization when the alien has established prima facie eligibility

for naturalization and the matter involves exceptionally appealing or humanitarian

factors; in every other case, the removal hearing shall be completed as promptly as

possible notwithstanding the pendency of an application for naturalization during

any state of the proceedings.

a. The Board held that: (1) because the Board and the IJs lack jurisdiction to

adjudicate applications for naturalization, removal proceedings may only be

terminated pursuant to 8 C.F.R. § 1239.2(f) where DHS has presented an

affirmative communication attesting to an alien’s prima facie eligibility for

naturalization; and (2) an adjudication by DHS on the merits of an alien’s

naturalization application while removal proceedings are pending is not an

affirmative communication of the alien’s prima facie eligibility for

naturalization that would permit termination of proceedings under 8 C.F.R.

§ 1239.2(f). Matter of Acosta Hidalgo, 24 I&N Dec. 103 (BIA 2007); but see

Perriello v. Napolitano, 579 F.3d 135 (2d Cir. 2009).

D. Hearing in removal proceedings

1. Section 240(a)(1) provides that an IJ shall conduct proceedings for deciding the

inadmissibility or deportability of an alien.

Fundamentals of Immigration Law 63

2. Charges – Section 240(a)(2) provides that an alien placed in removal proceedings

may be charged with any applicable ground of inadmissibility under § 212(a) or any

applicable ground of deportability under § 237(a).

3. Exclusive procedures – Section 240(a)(3) provides that, unless otherwise specified

in the Act, removal proceedings under § 240 shall be the sole and exclusive

procedure for determining whether an alien may be admitted to the U.S. or, if the

alien has been so admitted, removed from the U.S. However, nothing in §

240(a)(3) shall affect proceedings conducted pursuant to § 238 (expedited removal).

4. Authority of IJ – Section 240(b)(1) provides that the IJ shall administer oaths,

receive evidence, and interrogate, examine, and cross-examine the alien and any

witnesses. The IJ may issue subpoenas for the attendance of witnesses and

presentation of evidence. The IJ shall have authority (under regulations prescribed

by the Attorney General) to sanction by civil money penalty any action (or inaction)

in contempt of the IJ’s proper exercise of authority.

a. For information regarding subpoenas, see 8 C.F.R. § 1287.4.

b. Regulations regarding contempt power have yet to be enacted.

c. The IJ has authority to set filing deadlines for applications and related

documents and an application or document that is not filed within the time

established by the IJ may be deemed waived. 8 C.F.R. § 1003.31(c). Where

an application is timely filed but related documents are not timely filed, the

proper course for the IJ is to deem the alien’s opportunity to file these

documents waived and to determine what effect the failure to present them had

on his ability to meet his burden of establishing that he or she is eligible for the

relief sought. Matter of Interiano-Rosa, 25 I&N Dec. 264 (BIA 2010). The

regulations do not permit an IJ to deem a timely filed application abandoned

for failure to file supplemental documents within a specified time. Id.

5. Form of proceeding – Section 240(b)(2)(A) provides that the proceeding may take

place in person, where agreed upon by the parties in the absence of the alien, through

video conference, or through telephone conference. However, § 240(b)(2)(B)

provides that an evidentiary hearing on the merits may only be conducted through a

telephone conference with the consent of the alien involved after the alien has been

advised of the right to proceed in person or through video conference.

6. Presence of alien – Section 240(b)(3) provides that if it is impracticable by reason of

an alien’s mental incompetency for the alien to be present at the proceeding, the

Attorney General shall prescribe safeguards to protect the rights and privileges of

the alien. See Matter of M-A-M-, 25 I&N Dec. 474 (BIA 2011).

7. Competency–

a. The Board has established a nation-wide standard for addressing the

competency of individuals in proceedings. Matter of J-S-S-, 26 I&N Dec.

Fundamentals of Immigration Law 64

679 (BIA 2015). Where there are “indicia of incompetency,” the

Immigration Judge should collect evidence and determine whether the alien

is competent based on the preponderance of the evidence. The proper

standard for determining competency is set forth in Matter of M-A-M-, 25

I&N Dec. 474 (BIA 2011), and is based on whether:

(1) he or she has a rational and factual understanding of the nature and

object of the proceedings;

(2) can consult with the attorney or representative if there is one; and

(3) has a reasonable opportunity to examine and present evidence and

cross-examine witnesses.

b. In other words, the alien must be capable (with assistance or other

reasonable accommodations) to perform the acts necessary for the hearing to

take place in such a way that the alien’s due process rights are preserved. If

an alien is incompetent, removal proceedings can continue so long as

adequate safeguards are in place to ensure the protection of the alien’s rights

and privileges under the Act. Matter of J-S-S-, 26 I&N Dec. at 681. The

specific safeguards necessary are determined on a case-by-case basis.

c. This policy is consistent with the District Court’s orders regarding class

members described in Franco-Gonzalez v. Holder, No. CV 10-02211-DMG

(DTBx), 2013 WL 8115423 (C.D. Cal. Apr. 23, 2013). These are

immigration detainees in Arizona, California and Washington, who lack

representation and who are determined by a qualified mental health provider

to suffer from one of several incompetencies or diagnoses.

8. Alien’s rights in proceeding. Section 240(b)(4) provides that in proceedings under

§ 240, under regulations of the Attorney General, the alien shall have the privilege

of being represented, at no expense to the Government, by counsel of the alien’s

choosing who is authorized to practice in such proceedings, the alien shall have a

reasonable opportunity to examine the evidence against the alien, to present

evidence on the alien’s own behalf, and to cross-examine witnesses presented by the

Government but these rights shall not entitle the alien to examine such national

security information as the Government may proffer in opposition to the alien’s

admission to the U.S. or to an application by the alien for discretionary relief.

9. Record. Section 240(b)(4)(C) provides that a complete record shall be kept of all

testimony and evidence produced at the hearing.

10. Pleading by respondent. 8 C.F.R. § 1240.10(c) provides that the IJ shall require the

respondent to plead to the NTA by stating whether he admits or denies the factual

allegations and his removability under the charges contained in the NTA.

a. If the respondent admits the factual allegations and his removability under the

charges and the IJ is satisfied that no issue of law or fact remain, the IJ may

Fundamentals of Immigration Law 65

determine that removability as charged has been established by the admissions

of the respondent. 8 C.F.R. § 1240.10(c).

b. The IJ shall not accept an admission of removability from an unrepresented

respondent who is incompetent or under the age of 18 and is not accompanied

by an attorney or legal representative, a near relative, legal guardian, or friend;

nor from an officer of an institution in which a respondent is an inmate or

patient. When the IJ does not accept an admission of removability, he shall

direct a hearing on the issues. 8 C.F.R. § 1240.10(c).

(1) Minors. Although an IJ could not accept an admission to a charge

of deportability from an unaccompanied and unrepresented minor,

the Board held that an IJ is not precluded from accepting a minor's

admissions of factual allegations, which may properly form the sole

basis of a finding that such a minor is deportable. Matter of Amaya,

21 I&N Dec. 583 (BIA 1996). However, when an unaccompanied

and unrepresented minor admits to the factual allegations made

against him, the IJ must take into consideration the minor’s age and

pro se status in determining whether the minor’s testimony is reliable

and whether he understands the facts that are admitted so that his

deportability is established by clear, convincing, and unequivocal

evidence. Id.

(2) The Immigration and Naturalization Service met its burden of

establishing a minor respondent’s deportability for entry without

inspection by clear, unequivocal, and convincing evidence, where

(1) a Record of Deportable Alien (Form I-213) was submitted,

documenting the respondent’s identity and alienage; (2) the

respondent, who failed without good cause to appear at his

deportation hearing, made no challenge to the admissibility of the

Form I-213; and (3) there were no grounds for a finding that the

admission of the Form I-213 would be fundamentally unfair.

Matter of Ponce-Hernandez, 22 I&N Dec. 784 (BIA 1999).

11. Country of removal

a. In general. The term “country” means a foreign place with “territory” in a

geographical sense and a “government” in the sense of a political organization

exercising power over people subject to its jurisdiction. Matter of Linnas, 19

I&N Dec. 302 (BIA 1985). Therefore, an alien may not designate an office of

his government that is within the U.S. Id.

b. Arriving aliens

(1) Section 241(b)(1)(A) of the Act provides that an alien who arrives at

the U.S. and against whom removal proceedings were initiated at the

time of arrival shall be removed to the country in which the alien

boarded the vessel or aircraft on which the alien arrived in the U.S.

Fundamentals of Immigration Law 66

(2) Section 241(b)(1)(B) provides that if the alien boarded the vessel or

aircraft in a foreign territory contiguous to the U.S., an island

adjacent to the U.S., or an island adjacent to a foreign territory

contiguous to the U.S., and the alien is not a native, citizen, subject,

or national of, or does not reside in, the territory or island, removal

shall be to the country in which the alien boarded the vessel that

transported the alien to the territory or island.

(3) Section 241(b)(1)(C) provides that if the government of the country

designated in § 241(b)(1)(A) or (B) is unwilling to accept the alien

into its territory, removal shall be to the following countries, as

directed by the Attorney General:

(a) The country of which the alien is a citizen, subject, or

national;

(b) The country in which the alien was born;

(d) A country with a government that will accept the alien if

removal to each country above is impracticable, inadvisable,

or impossible.

c. All other aliens

(1) Section 241(b)(2)(A) provides that an alien who has been ordered

removed and who is not an arriving alien (§ 241(b)(1)) may

designate one country to which he wants to be removed and the

Attorney General shall remove the alien to the country designated.

(2) 8 C.F.R. § 1240.10(f) provides that the IJ shall notify the alien that if

he is finally ordered removed, the country of removal will in the first

instance be directed pursuant to § 241(b) to the country designated

by the alien, unless § 241(b)(2)(C) applies, and shall afford him the

opportunity then and there to make such designation.

(3) Section 241(b)(2)(B) of the Act provides that an alien may designate

a foreign territory contiguous to the U.S., an adjacent island, or an

island adjacent to a foreign territory contiguous to the U.S. only if the

alien is a native, citizen, subject, or national of, or has resided in, that

designated territory or island.

(4) Section 241(b)(2)(E) permits the Attorney General to remove an

alien to any of the following countries:

Fundamentals of Immigration Law 67

(a) The country from which the alien was admitted to the United

States;

(b) The country in which is located the foreign port from which

the alien left for the United States or for a foreign territory

contiguous to the United States;

the country from which the alien entered the United States;

(d) The country in which the alien was born;

(e) The country that had sovereignty over the alien’s birthplace

when the alien was born;

(f) The country in which the alien’s birthplace is located when

the alien is ordered removed; or

(g) If impracticable, inadvisable or impossible to remove the

alien to these countries, another country whose government

will accept the alien into that country.

(h) Note: The Supreme Court has held that § 241(b)(2)(E)

permits an alien to be removed to a country without advance

consent of that country’s government, except as provided in §

241(b)(2)(E)(vii). Jama v. ICE, 543 U.S. 335 (2005).

d. Foreign contiguous territory and adjacent islands. Foreign contiguous

territory is, of course, Canada and Mexico. The term “adjacent islands”

(defined in § 101(b)(5)) includes:

(1) Saint Pierre

(2) Miquelon

(3) Cuba

(4) the Dominican Republic

(5) Haiti

(6) Bermuda

(7) the Bahamas

(8) Barbados

(9) Jamaica

Fundamentals of Immigration Law 68

(10) the Windward & Leeward Islands

(11) Trinidad

(12) Martinique

(13) other British, French, & Netherlands territory in or bordering on the

Caribbean Sea.

12. Motion to Continue

a. Pending I-130 visa petition. When determining whether to continue

proceedings to afford the respondent an opportunity to apply for adjustment of

status premised on a pending family-based visa petition, an Immigration Judge

should consider five factors: “(1) the DHS response to the motion; (2)

whether the underlying visa petition is prima facie approvable; (3) the

respondent’s statutory eligibility for adjustment of status; (4) whether the

respondent’s application for adjustment [of status] merits a favorable exercise

of discretion; and (5) the reason for the continuance and other procedural

factors.” Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009). Where DHS

does not oppose the continuance, “the proceedings ordinarily should be

continued by the Immigration Judge in the absence of unusual, clearly

identified, and supported reasons for not doing so.” Id. at 791. In holding

that the decision to grant a continuance was a discretionary one, the Board

noted that “[f]actors relevant to determining whether a favorable exercise of

discretion is warranted include, but are not limited to, the existence of family

ties in the United States; the length of the respondent’s residence in the United

States; the hardship of traveling abroad; and the respondent’s immigration

history, including any preconceived intent to immigrate at the time of entering

as a nonimmigrant.” Id. at 793.

b. Pending I-140 visa petition or labor certification. In Matter of Rajah, 25 I&N

Dec. 127 (BIA 2009) the Board articulated the factors an IJ should consider in

determining whether good cause exists to continue removal proceedings to

allow adjudication of an employment-based visa petition or labor certification.

In determining whether good cause exists to continue proceedings, the IJ

should determine the alien’s place in the adjustment of status process and

consider and balance the factors identified in Matter of Hashmi, 24 I&N Dec.

785 (BIA 2009) (see above) and any other relevant considerations. Rajah, 25

I&N Dec. at 130. An alien’s unopposed motion to continue ongoing removal

proceedings to await adjudication of a pending employment-based visa

petition should generally be granted if approval of the visa petition would

render him prima facie eligible for adjustment of status. Id. However, the

pendency of a labor certification is generally not sufficient to warrant a grant

of a continuance. Id. at 137.

Fundamentals of Immigration Law 69

c. Pending U-visa application. An Immigration Judge should consider (1) the

response of the Department of Homeland Security to the alien’s motion to

continue; (2) whether the underlying visa petition is prima facie approvable;

and (3) the reason for the continuance and other procedural factors. Matter of

Sanchez-Sosa, 25 I&N Dec. 807 (BIA 2012).

13. Decision. Section 240(c)(1)(A) provides that at the conclusion of the proceeding

the IJ shall decide whether an alien is removable from the U.S. The IJ’s

determination shall be based only on the evidence produced at the hearing. Section

240(c)(1)(B) provides that if a medical officer or civil surgeon or board of medical

officers has certified under § 232(b) that an alien has a disease, illness, or addiction

which would make the alien inadmissible under § 212(a)(1), the IJ’s decision shall

be based solely upon such certification.

a. A summary decision pursuant to 8 C.F.R. § 1240.12(b) may properly be issued

by an IJ in removal proceedings in lieu of an oral or written decision only when

the respondent has expressly admitted to both the factual allegations and the

charges of removability; and, either the respondent’s ineligibility for any form

of relief is clearly established on the pleadings; or, after appropriate

advisement of and opportunity to apply for any form of relief for which it

appears from the pleadings that he or she may be eligible, the respondent

chooses not to apply for relief or applies only for, and is granted, the relief of

voluntary departure. Matter of A-P-, 22 I&N Dec. 468 (BIA 1999).

b. A remand of the record for issuance of a full and separate decision apprising

the parties of the legal basis of the IJ’s decision is not required under Matter of

A-P-, 22 I&N Dec. 468 (BIA 1999), where the respondent had notice of the

factual and legal basis of the decision and had an adequate opportunity to

contest them on appeal, the uncontested facts established at the hearing are

dispositive of the issues raised on appeal, and the hearing was fundamentally

fair. Matter of Rodriguez-Carillo, 22 I&N Dec. 1031 (BIA 1999).

c. Section 240(c)(5) provides that if the IJ decides that the alien is removable and

orders the alien to be removed, the IJ shall inform the alien of the right to

appeal that decision and of the consequences for failure to depart under the

order of removal, including civil and criminal penalties.

d. The Board has held that, if an IJ includes an attachment to a decision,

“particular care must be taken to insure that a complete record is preserved.”

Matter of Kelly, 24 I&N Dec. 446, 447 (BIA 2008). In particular, (1) the

attachment should include the respondent’s name and A-number, and the

decision date; (2) the attachment should be appended to the written

memorandum summarizing the oral decision (which should reflect that there is

an attachment); (3) the IJ should state on the record at the time of the oral

decision that he or she will append an attachment to the decision; (4) a copy of

the attachment should be provided to the parties; and (5) the parties should be

given the opportunity to make any objections to the use of an attachment. Id.

Fundamentals of Immigration Law 70

Finally, the Board noted that “it is the [IJ’s] responsibility to insure that the

decision in the record is complete.” Id.

E. Failure to appear - in absentia hearings

1. INTRODUCTION - The Due Process Clause protects aliens in removal proceedings

and includes the right to a full and fair hearing. Notice of proceedings is an

important component of any legal process. An elementary and fundamental

requirement of due process in any proceeding which is to be accorded finality is

notice reasonably calculated, under all the circumstances, to apprize interested

parties of the pendency of the action and afford them an opportunity to present their

objections. The notice must be of such nature as reasonably to convey the required

information, and it must afford a reasonable time for those interested to make their

appearance. Matter of M-D-, 23 I&N Dec. 540 (BIA 2002) (quoting Landon v.

Plasencia, 459 U.S. 21 (1982)).

a. Personal service clearly is adequate notice. Matter of M-D-, 23 I&N Dec. 540

(BIA 2002).

2. History lesson - Prior to 1992, the Act provided only that “the alien shall be given

notice, reasonable under all the circumstances, of the nature of the charges against

him and of the time and place at which the proceedings will be held.” Former INA

§ 242(b)(1).

a. The Act was amended in 1990 by adding section 242B, governing deportation

proceedings. Effective as to any Order to Show Cause served after June 13,

1992, § 242B stated that with regard to both an Order to Show Cause and a

notice of the time and place of proceedings, “written notice shall be given in

person to the alien (or, if personal service is not practicable, such notice shall

be given by certified mail to the alien or to the alien’s counsel of record, if

any).” Therefore, at that time, certified mail was made the required method

of notification if personal service was not practicable (and it remains so for

deportation proceedings). See 8 C.F.R. § 1003.13; Matter of Grijalva, 21

I&N Dec. 27 (BIA 1995) (citing Matter of Huete, 20 I&N Dec. 250 (BIA

1991), superseded by statute as stated in Nibagwire v. Gonzales, 450 F.3d 153

(4th Cir. 2006), for a similar requirement prior to the enactment of section

242B(a)(1)).

3. Present Law - The Illegal Immigration Reform and Immigrant Responsibility Act of

1996 (“IIRIRA”) changed the procedures with regard to notification of proceedings.

In removal proceedings, the statute now provides that “written notice . . . shall be

given in person to the alien (or, if personal service is not practicable, through service

by mail to the alien or to the alien’s counsel of record, if any).” Section 239(c) of

the Act provides that service by mail under this section shall be sufficient if there is

proof of attempted delivery to the last address provided by the alien in accordance

with § 239(a)(1)(F). No particular method of mailing is specified. Although the

Act no longer requires that notice be sent by certified mail, service by certified mail

is not expressly disapproved.

Fundamentals of Immigration Law 71

a. Section 240(b)(5)(A) and 8 C.F.R. § 1003.26(c) provide that if an alien does

not attend a proceeding under § 240, after written notice required under §

239(a)(1) or (2) has been provided to the alien or alien’s counsel of record,

the alien shall be ordered removed in absentia if the Service establishes by

clear, unequivocal, and convincing evidence that the written notice was so

provided and that the alien is removable. The written notice by the

Attorney General shall be considered sufficient if provided at the most

recent address provided under § 239(a)(1)(F). Section 240(b)(5)(B)

provides that no written notice shall be required under § 240(b)(5)(A) if the

alien has failed to provide the address required under § 239(a)(1)(F).

(1) If the alien did not receive (or cannot be charged with receiving) a

Notice to Appear informing him or her of the consequences of failing

to provide a current address under § 239(a)(1)(F), then the alien

should not be held responsible for failing to provide the Immigration

Court with his or her most recent address. Matter of G-Y-R-, 23

I&N Dec. 181 (BIA 2001).

(2) In Matter of M-D-, 23 I&N Dec. 540 (BIA 2002), the Board

distinguished Matter of G-Y-R- as follows: “Unlike the present

case, Matter of G-Y-R- involved a situation where there was a dispute

over whether the notice had been mailed to the correct address.

Matter of G-Y-R-, however, is instructive for making the point that

the alien need not personally receive, read, and understand the NTA

for the notice requirements to be satisfied. As we noted in Matter of

G-Y-R-, ‘An alien can, in certain circumstances, be properly charged

with receiving notice, even though he or she did not personally see

the mailed document. If, for example, the Notice to Appear reaches

the correct address but does not reach the alien through some failure

in the internal workings of the household, the alien can be charged

with receiving proper notice, and proper notice will have been

effected.’ The case before us is similar to Matter of G-Y-R- in that

the respondent was served by certified mail at an address obtained

from an asylum application. Importantly, however, there is no

dispute here regarding the correct address. The respondent had

provided the address only a few weeks before the hearing, and he

admits that he was living at that address when the Notice to Appear

was mailed. Unlike our decision in Matter of G-Y-R-, the issue in

the present case is whether the respondent can be charged with

receiving the Notice to Appear.” 23 I&N Dec. at 545 (emphasis in

original).

b. In Perez v. Mukasey, 516 F.3d 770 (9th Cir. 2008), the Ninth Circuit held that

an alien “who arrives late for his immigration hearing, but while the IJ is still

in the courtroom, has not failed to appear for that hearing.” The petitioner,

who had been ordered removed in absentia, was scheduled for a 9:00 hearing

but arrived at 11:00, at which time the IJ was “still on the bench.”

Fundamentals of Immigration Law 72

c. In Hamazaspyan v. Holder, 590 F.3d 744 (9th Cir. 2009), the Ninth Circuit

held that, under INA section 239, it is insufficient to serve a hearing notice on

an alien, but not the alien’s counsel of record. The court further held that an

in absentia order of removal must be rescinded if the government sent notice of

the time and place of the removal hearing by mail to an address provided by

the alien but, (1) there is not proof the alien received actual notice; (2) the alien

proved he is represented by counsel who filed a notice of appearance as

counsel of record with the immigration court before such notice was sent; and

(3) the government did not prove that it sent notice to the alien’s counsel of

record.

d. The statute only generally provides for the use of “service by mail.”

Although the Board interpreted the statute to allow service by regular mail, it

did not read the regulation at 8 C.F.R. § 3.13 (now 8 C.F.R. § 1003.13) as

conferring on an alien a right to require the use of regular mail instead of

certified mail. The regulation provides for the use of regular mail as a

convenience to the Service, not as a mandate to use regular mail instead of

certified mail. Matter of M-D-, 23 I&N Dec. 540 (BIA 2002).

e. Presumption of Delivery.

(1) As a general matter, when an NTA or hearing notice is properly

addressed and sent by regular mail according to normal office

procedures, there is a presumption of delivery. Matter of M-R-A-,

24 I&N Dec. 665 (BIA 2008). The law ordinarily recognizes a

presumption that “[a] letter properly addressed, stamped and mailed

is presumed to have been duly delivered to the addressee.” Federal

Deposit Ins. Corp. v. Schaffer, 731 F.2d 1134, 1137 n.6 (4th Cir.

1984) (quoting C. McCormick, McCormick’s Handbook of the Law

of Evidence § 343 (1972)).

(2) When the mail was sent via certified mail, the presumption is

especially strong and clear and convincing evidence is required to

overcome the presumption. Federal Deposit Ins. Corp. v. Schaffer,

supra, at 1137 n.6.

(3) An Immigration Judge must consider “all relevant evidence” in

determining whether a presumption of delivery has been overcome.

In Matter of M-R-A-, 24 I&N Dec. 665 (BIA 2008), the Board held

that the respondent overcame the presumption of delivery of a

hearing notice that was sent by regular mail where he submitted

affidavits indicating that he did not receive the notice, had previously

filed an asylum application and appeared for his first removal

hearing, and exercised due diligence in promptly obtaining counsel

and requesting reopening of the proceedings. Id.; see also Matter of

C-R-C-, 24 I&N Dec. 677 (BIA 2008).

Fundamentals of Immigration Law 73

(4) The Second, Third, Eighth, and Ninth Circuits have held that where a

respondent actually initiates a proceeding to obtain a benefit, appears

at an earlier hearing, and has no motive to avoid the hearing, a sworn

affidavit from the respondent that neither she nor a responsible party

residing at her address received the notice should ordinarily be

sufficient to rebut the presumption of delivery and entitle the

respondent to an evidentiary hearing to consider the veracity of her

allegations. Lopes v. Mukasey, 517 F.3d 156 (2d Cir. 2008);

Santana Gonzalez v. Att’y Gen., 506 F.3d 274 (3d Cir. 2007);

Ghounem v. Ashcroft, 378 F.3d 740 (8th Cir. 2004); Salta v. INS, 314

F.3d 1076 (9th Cir. 2002). The Ninth Circuit went further in

Sembiring v. Gonzales, 499 F.3d 981, 989 (9th Cir. 2007), holding

that “a sworn affidavit was not required to establish that [the

petitioner] did not receive notice,” given that “[t]he test for whether

an alien has produced sufficient evidence to overcome the

presumption of effective service by regular mail is practical and

commonsensical rather than rigidly formulaic.” Note that in the

Ninth Circuit, the contents of an alien’s affidavit accompanying a

motion to reopen must be accepted as true “unless inherently

unbelievable.” Celis-Castellano v. Ashcroft, 298 F.3d 888 (9th Cir.

2002).

f. A minor respondent, who could not be expected to attend immigration

proceedings on her own, was properly notified of her hearing, through proper

mailing of a Notice to Appear (Form I-862) to the last address provided by her

parent, with whom she was residing. Matter of Gomez-Gomez, 23 I&N Dec.

522 (BIA 2002). Although the headnote states that the NTA was served by

mail, the decision indicates it was personally served and the notice of the

hearing was served by mail. The Board also stated, “we believe it is implicit

in the statute and regulations dealing with notice that an adult relative who

receives notice on behalf of a minor alien bears the responsibility to assure that

the minor appears for the hearing, as required.” Id. at 528.

4. Rescission of a removal order rendered in absentia

a. An in absentia order of removal may be rescinded (1) at any time upon a

showing of lack of notice or that the alien was in Federal or State custody, or

(2) within 180 days after the date of the order of removal if the alien

demonstrates that the failure to appear was because of exceptional

circumstances. INA § 240(b)(5)(C)(i). See motions to reopen.

5. Aliens in contiguous territory. Section 240(b)(5)(E) provide that the notice and in

absentia provisions of § 240 shall apply to all aliens placed in proceedings under §

240, including any alien who remains in a contiguous foreign territory pursuant to §

235(b)(2)(C). This provision appears to change the conclusion reached in Matter

of Sanchez, 21 I&N Dec. 444 (BIA 1996).

Fundamentals of Immigration Law 74

6. Limitation on discretionary relief for failure to appear. Section 240(b)(7) provides

that any alien against whom a final order of removal is entered in absentia and who,

at the time of the notice described in § 239(a)(1) or (2) was provided oral notice,

either in the alien’s native language or in another language the alien understands, of

the time and place of the proceedings and of the consequences of failing, other than

because of exceptional circumstances, to attend a proceeding under § 240, shall not

be eligible for relief under §§ 240A, 240B, 245, 248, or 249 for a period of 10 years

after the date of the entry of the final order of removal.

F. Stipulated removal

1. The Attorney General shall provide by regulation for the entry by an IJ of an order of

removal stipulated to by the alien (or the alien's representative) and the service.

INA § 240(d). A stipulated order shall constitute a conclusive determination of the

alien's removability from the U.S.

G. Methods of removal not involving an IJ

1. Expedited removal of aliens convicted of aggravated felonies. Section 238(b) of

the Act provides for the removal of aliens who are not LPRs and who have been

convicted of aggravated felonies.

a. The procedure for such removal is set forth in 8 C.F.R. § 1238.1.

2. Expedited removal of other aliens. 8 C.F.R. § 1235.3(b)(1) provides that the

expedited removal procedure shall apply to the following classes of aliens:

a. Arriving aliens inadmissible under section 212(a)(6)(C) and section 212(a)(7)

except for citizens of Cuba arriving at a U.S. port-of-entry by aircraft.

b. Subject to designation by the Commissioner, aliens arriving, attempting to

enter, or who have entered the U.S. without being admitted or paroled by an

immigration officer who have not established to the satisfaction of the

immigration officer that they have been physically present in the U.S. for 2

years immediately prior to the determination of inadmissibility.

(1) On November 13, 2002, the Commissioner designated all aliens who

arrive in the U.S. on or after November 13, 2002 by sea who are not

admitted or paroled and who have not been physically present in the

U.S. for 2 years immediately prior to the determination of

inadmissibility by an immigration officer. The Commissioner’s

designation does not apply to aliens who arrive at U.S.

ports-of-entry, alien crewmen or stowaways, and Cuban citizens or

nationals who arrive by sea.

3. Reinstatement of removal orders against aliens illegally reentering. Section

241(a)(5) of the Act provides that if the Attorney General finds that an alien has

reentered the U.S. illegally after having been removed or having departed

Fundamentals of Immigration Law 75

voluntarily under an order of removal, the prior order of removal is reinstated from

its original date and is not subject to being reopened or reviewed, the alien is not

eligible for and may not apply for any relief under the Act, and the alien shall be

removed under the prior order at any time after reentry.

a. The procedure for reinstatement of removal orders and the exception for

withholding of removal are discussed in 8 C.F.R. § 1241.8.

b. Immigration judges and the Board lack jurisdiction to review a decision of the

Service to reinstate a prior order of removal pursuant to § 241(a)(5). Matter

of G-N-C-, 22 I&N Dec. 281 (BIA 1998).

c. The Supreme Court held that § 241(a)(5) applies to aliens who reentered the

United States before the effective date of IIRIRA and does not retroactively

affect any right of, or impose any burden, on such aliens. Fernandez-Vargas

v. Gonzales, 548 U.S. 30 (2006).

d. An IJ has no authority to reinstate a prior order of deportation or removal

pursuant to § 241(a)(5), and an alien subject to reinstatement of an order under

§ 241(a)(5) has no right to a hearing before an IJ. Matter of W-C-B-, 24 I&N

Dec. 118 (BIA 2007). The IJ may properly terminate proceedings as

improvidently begun where the respondent is subject to reinstatement of a

prior order. Id.

4. Judicial removal. Section 238(c) provides that a U.S. District Judge shall have

jurisdiction to enter a judicial order of removal at the time of sentencing an alien

who is deportable, if such an order has been requested by the U.S. Attorney with the

concurrence of the Commissioner and if the court chooses to exercise such

jurisdiction.

a. The procedure for judicial removal is set forth in § 238(c)(2).

VII. Criminal Convictions

A. Definitions

1. Conviction

a. Generally. Section 322 of the IIRIRA added § 101(a)(48)(A) to the Act:

(1) “The term ‘conviction’ means, with respect to an alien, a formal

judgment of guilt of the alien entered by the court, or if adjudication

of guilt has been withheld, where

(2) a judge or jury has found the alien guilty or the alien has entered a

plea of guilty or nolo contendere or has admitted sufficient facts to

warrant a finding of guilt, and

Fundamentals of Immigration Law 76

(3) the judge has ordered some form of punishment, penalty, or

restraint on the alien's liberty to be imposed.”

b. Section 322(c) of IIRIRA, which added § 101(a)(48)(A), specifically states

that its amendments “shall apply to convictions and sentences entered

before, on, or after the date of enactment of this Act.” Therefore the date

when a conviction took place is of no consequence. Matter of Punu, 22

I&N Dec. 224 (BIA 1998); but see also Siddiqui v. Holder, 670 F.3d 736

(7th Cir. 2012) (holding that the definition was impermissibly retroactive for

an alien whose legalization application was unreasonably delayed in the

1980s).

c. The imposition of costs and surcharges in the criminal sentencing context

constitutes a form of “punishment” or “penalty” for purposes of establishing

that an alien has suffered a “conviction” within the meaning of §

101(a)(48)(A). Matter of Cabrera, 24 I&N Dec. 459 (BIA 2008); see also

Retuta v. Holder, 591 F.3d 1181 (9th Cir. 2010).

d. A judgement of guilt entered by a general court-martial of the U.S. Armed

Forces qualifies as a “conviction” within the meaning of § 101(a)(48)(A).

Matter of Rivera-Valencia, 24 I&N Dec. 484 (BIA 2008).

e. State convictions of a minor who was tried as an adult. The First, Second,

Ninth and Eleventh Circuits have held that an alien’s conviction as an adult

in state court is a conviction for immigration purposes, even though the alien

was a minor at the time and would not have been eligible for transfer to a

federal adult court under the Federal Juvenile Delinquency Act (“FJDA”)

standards. Vieira Garcia v. INS, 239 F.3d 409 (1st Cir. 2001); Savchuck v.

Mukasey, 518 F.3d 119, 122 (2d Cir. 2008); Vargas-Hernandez v. Gonzales,

497 F.3d 919, 922-23 (9th Cir. 2007); Singh v. Att’y Gen., 561 F.3d 1275,

1279 (11th Cir. 2009).

f. Deferred Adjudication Statutes

(1) In Crespo v. Holder, 631 F.3d 130 (4th Cir. 2011), the Fourth Circuit

held that an alien’s prior deferred adjudication for possession of

marijuana, under Virginia law applying to first offenders, did not

qualify as “conviction,” within meaning of § 101(a)(48)(A), because

the alien pled not guilty and the adjudication lacked sufficient

finding of guilt.

g. There is some dispute about whether a conviction with a pending direct

appeal is “final” for immigration purposes.

(1) The Fifth, Seventh, and Ninth Circuits have held that a conviction

with a pending direct appeal is “final” for immigration purposes.

Planes v. Holder, 686 F.3d 1033 (9th Cir. 2012); Montenegro v.

Fundamentals of Immigration Law 77

Ashcroft, 355 F.3d 1035, 1037 (7th Cir. 2004) (though some have

distinguished this case, as it concerned a collateral appeal); Moosa v.

INS, 171 F.3d 994 (5th Cir. 1999); see also Puello v. CIS, 511 F.3d

324 (2d Cir. 2007) (not addressing direct appeals, but concluding that

a conviction occurs when judgment is entered rather than when a

plea of guilty is made).

(2) The Third Circuit has held a direct appeal must have been exhausted

or waived for the conviction to be final. Orabi v. Att’y Gen. of the

United States, 738 F.3d 535 (3d Cir. 2014).

(3) In Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the U.S. Supreme

Court held that the Sixth Amendment requires criminal defense

counsel to advise a noncitizen client of the risk of deportation arising

from a guilty plea. The fact that an alien may be pursuing

post-conviction relief in the form of a collateral (for immigration

purposes) attack on a conviction in state criminal court does not

affect the conviction’s finality for federal immigration purposes.

Matter of Adetiba, 20 I&N Dec. 506 (BIA 1992). The conviction is

final, unless and until it is overturned by the criminal court. See

Matter of Ponce de Leon, 21 I&N Dec. 154 (A.G. 1997; BIA 1997,

1996); see also Paredes v. Att’y Gen., 528 F.3d 196, 198 (3d Cir.

2009); United States v. Garcia-Echaverria, 374 F.3d 440, 445-46

(6th Cir. 2004); Jimenez-Guzman v. Holder, 642 F.3d 1294 (10th

Cir. 2011) (finding IJ’s denial of motion to continue was “eminently

rational”).

(4) An alien who has waived or exhausted the right to a direct appeal of a

conviction is subject to removal, and the potential for discretionary

review on direct appeal will not prevent the conviction from being

considered final for immigration purposes. Matter of Polanco, 20

I&N Dec. 894 (BIA 1994); see also Matter of Cardenas Abreu, 24

I&N Dec. 795 (BIA 2009).

(5) While a conviction on direct appeal may not support a finding of

deportability, it may still be considered in the exercise of discretion.

Matter of Gonzalez, 16 I&N Dec. 134 (BIA 1977); Matter of

Turcotte, 12 I&N Dec. 206 (BIA 1967).

(a) Where an alien has been convicted following a jury trial of

several crimes but the convictions are not final due to an

appeal, an Immigration Judge can consider in the exercise of

discretion: the fact that an alien has been arrested or

convicted may constitute evidence that he has committed the

crimes and the conduct underlying those convictions; the

alien’s conduct in prison, including any disciplinary

infractions; in absentia convictions; pending criminal

charges, including police reports. Matter of Thomas, 21

Fundamentals of Immigration Law 78

I&N Dec. 20 (BIA 1995); Matter of Grijalva, 19 I&N Dec.

713 (BIA 1988).

(b) However, an arrest report without a subsequent conviction,

particularly where prosecution was declined and the alien

admitted no wrongdoing, may be entitled to only limited

weight. Matter of Arreguin, 21 I&N Dec. 38 (BIA 1995).

2. Juvenile delinquency

a. An act of juvenile delinquency is not a crime in the United States.

Therefore, an adjudication of delinquency is not a crime within the meaning

of the immigration laws. Matter of Ramirez-Rivero, 18 I&N Dec. 135 (BIA

1981); Matter of C-M-, 5 I&N Dec. 327 (BIA 1953).

b. A juvenile delinquency proceeding results in the adjudication of a status

rather than conviction for a crime. An adjudication of youthful offender

status pursuant to Article 720 of the New York Criminal Procedure Law,

which corresponds to a determination of juvenile delinquency under the

Federal Juvenile Delinquency Act, 18 U.S.C. §§ 5031-5042 (1994 & Supp.

II 1996), does not constitute a judgment of conviction for a crime within the

meaning of § 101(a)(48)(A). Matter of Devison, 22 I&N Dec. 1362 (BIA

2000).

c. Once a youthful offender determination has been made, that decision cannot

be changed as a consequence of the offender’s subsequent behavior.

Therefore, the resentencing of a youthful offender in New York following a

violation of probation does not convert the youthful offender adjudication

into a judgment of conviction. Matter of Devison, 22 I&N Dec. 1362 (BIA

2000).

d. Foreign convictions of juveniles. In order for a foreign conviction to serve

as a basis for a finding of inadmissibility, the conviction must be for conduct

which is deemed criminal by U.S. standards. Matter of McNaughton, 16

I&N Dec. 569 (BIA 1978), aff'd McNaughton v. INS, 612 F.2d 457 (9th Cir.

1980).

(1) Conduct underlying a foreign conviction which constitutes an act of

juvenile delinquency under U.S. standards (no matter how the case

was treated by a foreign court) is not a crime for purposes of the Act.

Matter of De La Nues, 18 I&N Dec. 140 (BIA 1981).

(2) In order to determine whether a foreign conviction is to be treated as

an adjudication of delinquency, the Board relies on the Federal

Juvenile Delinquency Act (FJDC), 18 U.S.C. § 5031 et seq. Matter

of V-X-, 26 I&N Dec. 147 (BIA 2013); Matter of Ramirez-Rivero, 18

I&N Dec. 135 (BIA 1981); Matter of De La Nues, 18 I&N Dec. 140

(BIA 1981).

Fundamentals of Immigration Law 79

3. Pardons

a. Pardons of crimes involving moral turpitude.

(1) History lesson - Former section 241(b) which provided that an alien

who has received a pardon is not deportable under former section

241(a)(4) was repealed by the Immigration Act of 1990. Former

section 241(e) was redesignated as § 241(b). However, the

Immigration Act of 1990 also enacted § 241(a)(2)(A)(iv) which

provided that the provisions of § 241(a)(2)(A)(i) [relating to aliens

convicted of a CIMT] shall not apply in the case of an alien who,

after the conviction, has been granted a full and unconditional pardon

by the President of the U.S. or by the Governor of any state.

(2) As added by IIRIRA, § 237(a)(2)(A)(v) of the Act now provides that

clauses (i), (ii), (iii), and (iv) [of § 237(a)(2)(A)] shall not apply in

the case of an alien with respect to a criminal conviction if the alien

subsequent to the criminal conviction has been granted a full and

unconditional pardon by the President of the U.S. or by the Governor

of any state. The clauses listed are as follows:

(a) Section 237(a)(2)(A)(i) - CIMT w/in 5 years of admission;

(b) Section 237(a)(2)(A)(ii) - 2 CIMTs not arising out of a single

scheme;

(d) Section 237(a)(2)(A)(iv) - high speed flight.

b. A presidential or gubernatorial pardon waives only the grounds of removal

specifically set forth in § 237(a)(2)(A)(v), and no implicit waivers may be read

into the statute. Therefore, a respondent’s pardon of a conviction for sexual

battery of a minor did not waive his removability as an alien convicted of a

crime of domestic violence or child abuse under § 237(a)(2)(E)(i), because that

section is not specifically included in § 237(a)(2)(A)(v). Matter of Suh, 23

I&N Dec. 626 (BIA 2003).

c. Only an executive pardon will prevent removability; a legislative pardon is no

bar to removability. Matter of R-, 6 I&N Dec. 444 (BIA 1954).

d. However, if a state has a constitutional provision which allows pardon

authority to be exercised by a board or by a commission, such a pardon is

considered an executive pardon. Matter of Tajer, 15 I&N Dec. 125 (BIA

1974), Matter of D-, 7 I&N Dec. 476 (BIA 1957).

Fundamentals of Immigration Law 80

e. An executive pardon must be unconditional in order to prevent deportation. It

may not be dependent upon a condition precedent or a condition subsequent.

Matter of C-, 5 I&N Dec. 630 (BIA 1954).

f. A foreign pardon (or amnesty, expungement, or extinction) is not effective to

prevent deportation. Matter of G-, 5 I&N Dec. 129 (BIA 1953); Matter of

F-Y-G-, 4 I&N Dec. 717 (BIA 1952).

g. The availability of a pardon under state or federal law, or the existence or

nonexistence of a qualifying pardoning authority, is not determinative of

whether an offense constitutes a crime for immigration purposes. Matter of

Nolan, 19 I&N Dec. 539 (BIA 1988).

h. With respect to aggravated felony pardons:

(1) Aliens convicted of an aggravated felony who received notice of

their deportation hearing before March 1, 1991 and were therefore

deportable under former section 241(a)(4)(B) are deportable even if

they are granted a pardon.

(2) Aliens convicted of an aggravated felony who received notice of

their deportation hearing on or after March 1, 1991 and are

deportable under current § 237(a)(2)(A)(iii) are not deportable if

they have received a full and unconditional pardon from the

President of the U.S. or the Governor of any state.

4. Expungements of criminal convictions.

a. HISTORY: Prior to the enactment of § 101(a)(48)(A) of the Act, a conviction

which was expunged would not support an order of deportation. See e.g.,

Matter of Ozkok, 19 I&N Dec. 546 (BIA 1988), superseded by INA §

101(a)(48)(A). However, an expungement of a conviction for a controlled

substances offense would not eliminate the conviction for immigration

purposes (unless the expungement was pursuant to the Federal Youth

Offenders Act, or the first offender provisions of the Controlled Substances

Act, or a state rehabilitative statute which was equivalent to the CSA’s first

offender provisions) because the manner in which a state deals with a person

after his conviction is not controlling in a deportation proceeding. Rehman v.

INS, 544 F.2d 71 (2d Cir. 1976), superseded by statute as in Mugalli v.

Ashcroft, 258 F.3d 52 (2d Cir. 2001); Yanez-Popp v. INS, 998 F.2d 231 (4th

Cir. 1993); Gonzalez de Lara v. INS, 439 F.2d 1316 (5th Cir. 1971);

Aguilera-Enriquez v. INS, 516 F.2d 565 (6th Cir. 1975); Will v. INS, 447 F.2d

529 (7th Cir. 1971); de la Cruz-Martinez v. INS, 404 F.2d 1198 (9th Cir.

1968); Matter of Werk, 16 I&N Dec. 234 (BIA 1977); Matter of Zingis, 14

I&N Dec. 621 (BIA 1974).

b. After passage of § 101(a)(48), the Board held that no effect is to be given in

immigration proceedings to a state action which purports to expunge, dismiss,

Fundamentals of Immigration Law 81

cancel, vacate, discharge, or otherwise remove a guilty plea or other record of

guilt or conviction by operation of a state rehabilitative statute. Once an alien

is subject to a “conviction” as defined at § 101(a)(48)(A), the alien remains

convicted for immigration purposes notwithstanding a subsequent state action

purporting to erase the original determination of guilt through a rehabilitative

procedure. Matter of Roldan, 22 I&N Dec. 512 (BIA 1999).

c. All of the circuits are now in agreement with the Board’s decision in Matter of

Roldan. However, the Ninth Circuit initially disagreed. In the Ninth Circuit,

controlled substances convictions which took place between the publication of

Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), and Nunez-Reyes v.

Holder, 646 F.3d 684 (9th Cir. 2011) (en banc), are subject to the rules in

Lujan-Armendariz.

d. If a court vacates an alien’s conviction for reasons solely related to

rehabilitation or immigration hardships, rather than on the basis of a

procedural or substantive defect in the underlying criminal proceedings, the

conviction is not eliminated for immigration purposes. Matter of Pickering,

23 I&N Dec. 621 (BIA 2003), rev’d on other grounds, 454 F.3d 525 (6th Cir.

2006), amended and superseded, 465 F.3d 263 (6th Cir. 2006).

e. In Renteria-Gonzales v. INS, 322 F.3d 804 (5th Cir. 2002), the Fifth Circuit

held that a conviction vacated on any grounds remains a conviction under

section 101(a)(48)(A). See also Discipio v. Ashcroft, 369 F.3d 472 (5th Cir.

2004). This holding contradicts the Board’s ruling in Matter of Pickering.

However, as practical matter, the Matter of Pickering standard may still apply

in the Fifth Circuit as the government has indicated that, in Fifth Circuit cases

involving vacated convictions, it will seek to remand to the Board for a ruling

under Matter of Pickering. See Gaona-Romero v. Gonzales, 497 F.3d 694

(5th Cir. 2007).

f. An alien seeking to reopen proceedings to establish that a conviction has been

vacated bears the burden of proving that the conviction was not vacated solely

for immigration purposes. Matter of Chavez, 24 I&N Dec. 272 (BIA 2007).

g. A conviction vacated pursuant to § 2943.031 of the Ohio Revised Code for

failure of the trial court to advise the alien defendant of the possible

immigration consequences of a guilty plea is no longer a valid conviction for

immigration purposes. Matter of Adamiak, 23 I&N Dec. 878 (BIA 2006).

5. Naturalized citizen at time of conviction.

a. The Board has held that a denaturalized citizen who committed crimes while a

lawful permanent resident and concealed them during the naturalization

process is removable on the basis of the crimes, even though the alien was a

naturalized citizen at the time of conviction. Matter of Gonzalez-Munro, 24

I&N Dec. 472 (BIA 2008).

Fundamentals of Immigration Law 82

6. Sentences

a. Under INA § 101(a)(48)(B), “Any reference to a term of imprisonment of a

sentence with respect to an offense is deemed to include the period of

incarceration or confinement ordered by a court of law regardless of any

suspension of the imposition or execution of that imprisonment or sentence in

whole or in part.” Thus, the relevant inquiry is the term to which the alien

was sentenced by the trial court, regardless whether the imposition or

execution of the sentence was suspended. Matter of S-S-, 21 I&N Dec. 900

(BIA 1997).

b. However, some circuit courts have held that if an alien was sentenced only to a

period of probation (as distinguished from a sentence to incarceration to be

served on probation) that may not qualify as a sentence to incarceration.

United States v. Ayala-Gomez, 255 F.3d 1314 (11th Cir. 2001); United States

v. Banda-Zamora, 178 F.3d 728 (5th Cir. 1999); see also United States v.

Guzman-Bera, 216 F.3d 1019 (11th Cir. 2000).

c. Reduction in sentence. A trial court’s decision to modify or reduce an alien’s

criminal sentence nunc pro tunc is entitled to full faith and credit by the IJ and

the Board. Such a modified or reduced sentence is recognized as valid for

purposes of the immigration law without regard to the trial court’s reasons for

effecting the modification or reduction. Matter of Cota-Vargas, 23 I&N Dec.

849 (BIA 2005), clarifying Matter of Song, 23 I&N Dec. 173 (BIA 2001) and

distinguishing Matter of Pickering, 23 I&N Dec. 621 (BIA 2003).

B. Categorical Approach

1. In General

a. To determine whether a statute of conviction constitutes a removable offense,

you must compare the elements of the general offense with the elements of the

statute of conviction.

b. If the elements in the respondent’s statute of conviction contain all the

elements in the generic offense, then the statute of conviction is a categorical

match. However, if the statute of conviction contains some elements “in the

alternative,” some of which meet the generic definition and some which do

not, then the statute is considered “divisible.” See Shepard v. United States,

544 U.S. 13, 125 S. Ct. 1254, 161 L.Ed.2d 205 (2005); Taylor v. United States,

495 U.S. 575, 110 S. Ct. 2143, 109 L.Ed.2d 607 (1990). In that case, an

adjudicator must apply a “modified categorical approach” to determine

whether the respondent was convicted under a portion of the statute which

meets the generic definition of the offense. See also Nijhawan v. Holder, 129

S. Ct. 2294 (2009).

c. If the elements in the respondent’s statute of conviction contain all the

elements in the generic offense, then the statute of conviction is a categorical

Fundamentals of Immigration Law 83