Who can be deported (now called removed)?
Since the passage of the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA), both in 1996, deportations of foreigners have increased dramatically. It is a misconception to believe that only hardened criminals get deported But this perception is completely wrong. Wrong because of the harsh provisions of the 1996 laws, even small misdemeanors can lead to one's removal from the United States, no matter how long he or she has been a lawful permanent resident. It all depends on the wording of particular statues violated, shoplifting (petty theft), drunk driving, "joy-riding," disorderly conduct, etc. Any of of these convictions, in some instances, can be used as a basis for deportation. Most amazingly, in most cases it matters how long ago the act took place. You could have shoplifted 18 years ago. On the other hand the law also allows for the deportation of aggravated felons. The problem is that the word "aggravated felony" is defined differently and much more broadly under any previous immigration law than under criminal law. Most people would not believe that what may not have been an aggravated felony or even a deportable act under immigration laws at the time of the conviction, may be one. If the INS succeeds in proving that an alien is an "aggravated felon" under immigration laws, he or she is left with practically no options to avoid deportation.
Now Note that any violation of your status in the US can potentially result in your being placed in removal proceedings. These violations include entering the U.S. without inspection, proper documents or through fraud, improper re-entry after deportation, , failure to maintain nonimmigrant status, conviction of a crime involving moral turpitude, conviction of an aggravated felony, involvement in prostitution, becoming institutionalized at public expense within 5 years of entry, becoming a public charge within 5 years of entry failure to obtain permanent residence after being granted a conditional Green Card through the marriage to a U.S. citizen or Green Card holder, narcotics addiction or violation of laws relating to controlled substance, assisting another alien to enter the United States, conviction of possession of an automatic or semi automatic weapon.
A charge of deportation/Removal is usually accompanied by an Notice to Appear (NTA) (order to show cause in the past), which requires the foreign national to appear before an immigration judge and demonstrate why he or she should not be deported. New cases begin with a Notice to Appear and the alien is brought in front of a judge to determine if he or she should be Removed from the United States
Grounds of inadmissibility
There are 10 basic grounds of inadmissibility. These are:
Health related grounds
Persons with communicable diseases that are considered significant public health risks are inadmissible. These diseases include HIV and tuberculosis. Also, a failure to show documentation of certain vaccinations is a ground of inadmissibility. Persons with a history of physical or mental disorders that have or may in the future pose a threat to the property, safety, or welfare of the person or others is inadmissible. Also people found to be drug abusers are inadmissible.
A conviction of a crime involving moral turpitude makes a person inadmissible. However, a single offense that occurred before the age of 18 and more than five years ago will not be considered, nor will offenses for which the maximum punishment was only one year and the alien was sentenced to six months or less. Convictions for crimes involving controlled substances lead to inadmissibility. Convictions for more than one crime for which the person was sentenced to at least five total years in prison make a person inadmissible. Engaging in prostitution or commercialized vice is a basis for inadmissibility. A person who has committed a serious offense in the US and has claimed immunity from prosecution is inadmissible. Engaging in the persecution of other on the basis of their religious beliefs is a ground of inadmissibility, as is engaging in the trafficking of human beings. Conviction of one felony in which the sentence imposed “could have been” for a year or more.
If an INS inspector or a consular officer has a reasonable ground to believe that the person is coming to the US to engage in espionage or sabotage, or if that person is coming to the U.S. To violate any law relating to prohibitions on exports from the US, the person is inadmissible. Members of a group designated as a terrorist organization are inadmissible, as are people engaged in terrorist activities. This most probably will be expanded following the September 11, 2001 bombing of the World trade Center. If it is determined that the alien’s presence in the US would have negative foreign policy consequences, the person can be denied admission. People who were members of the Communist Party or other totalitarian organizations are generally inadmissible, as are people who assisted in Nazi era persecution. Those who have engaged in genocide are inadmissible.
A person who is likely to become a public charge is inadmissible. This can usually be avoided in family based immigration with a valid Affidavit of Support.
A person coming to the US to work must have a labor certification, unless they are able to qualify for one of the other employment-based immigration categories. People coming to the US to work as physicians must pass National Board of Medical Examiners Examination, or its equivalent. Other health care workers must present certification from designated entities.
Undocumented entry and immigration status violations
Anyone who comes to the US without permission of the INS or State Department is inadmissible. Missing a (deportation) removal proceeding without a very good reason makes a person inadmissible for five years. Anyone who engages in fraud or misrepresentation in an effort to enter the US is inadmissible, as are those who have made a false claim of US citizenship (more below on this). Those who violate the terms of a student visa are also inadmissible for five years.
If the applicant for entry does not possess a valid immigrant or nonimmigrant visa, they are inadmissible.
Ineligibility for citizenship
A person permanently barred from obtaining US citizenship is inadmissible. This category of people primarily includes people who got out of military service based on their alienage, and people who left the US to avoid the draft. It also includes those that have been previous removed (deportation and exclusion) unless the required time is spent outside the U.S. before they reenter.
Note that aliens who have been deported are inadmissible. After a first deportation, the person is inadmissible for five years, and after subsequent deportations, the period of inadmissibility is 20 years. A person deported because of an aggravated felony is permanently inadmissible. People who have been unlawfully present in the US for more than 180 days but less than a year are inadmissible for three years. Unlawful presence of more than a year leads to inadmissibility for ten years.
A person is also inadmissible if it is determined that they are required to assist another person who is inadmissible. Persons who have detained a US citizen child outside the US are inadmissible until they comply with any court order regarding the child’s custody. Persons coming to the US to engage in polygamy are inadmissible. Also, former US citizens who renounced their citizenship for tax purposes are inadmissible
FALSE CLAIMS TO U.S. CITIZENSHIP
A little known provision in the law can have extremely devastating effects on individuals who falsely claim that they are U.S. citizens. The Illegal Immigration Reform And Immigrant Responsibility Act of 1996 (IIRAIRA) created § 237(A)(3)(D) within the Immigration and Nationality Act (INA), which states:
Any alien who falsely represents or has falsely represented, himself to be a citizen of the United States for any purpose or benefit under this act.....or any federal or state law is deportable.
This law affects any individual, who after September 30, 1996, falsely represents himself or herself as a U.S. citizen. Not only can an individual already in the U.S. be deported under this provision, but a complimentary provision in the INA also precludes a potential immigrant from obtaining the green card.
Claiming citizenship can happen in many ways. A young adult desiring to go to college may state that he is a U.S. citizen when applying to college. Once this happens the lie continues on the school records. Finally upon graduation the person applies for a job. Since 1966 every employer must complete an Employment Eligibility Verification form at the time of hiring a worker, whether a U.S. citizen or a foreign born person. This from is called “I-9.” To complete it properly the new employee must check off whether he or she is a citizen of the United States, a permanent resident, or an alien authorized to work for a temporary period by the Immigration and Naturalization Service.
If this misrepresentation was made after September 30, 1996, he or she can be deported from the United States. Worse, even is this person is married to an American citizen and has U.S. citizen children any application for a Green Card could be denied based on the false representation. At the time of the green card interview, an INS officer or consular officer could easily inquire whether such a misrepresentation was made or not. Most applications for immigrant visas require information about the last five years of employment. If the applicant was illegal during this period, the officer could look into how the person was able to work in the U.S. This may necessitate the officer could to request the applicant to submit the Employment Eligibility Verification form from his or her employer as a condition for approving the case.
There is absolutely no waiver for this ground of inadmissibility and deportability. Many families have been devastated because of this law. Be advised!
Moses Apsan and his staff, based in New York City and Newark, NJ provide exceptional legal services throughout the world, in all aspects of immigration to the United States, including non-immigrant (temporary visas), immigrant visa (Green Card) and deportation defense. In addition Mr. Apsan, has been practicing Bankruptcy law and Divorce laws for over 35 years, He was the President of the Federal Bar Association, New Jersey Chapter (1997-2002). He speaks Portuguese and Spanish..