CHAPTER 8: GROUNDS FOR INADMISSIBILITY AND REMOVAL
2004 © David Weissbrodt and Laura Danielson
As discussed in the preceding chapters, non-citizens who wish to come to the United States must satisfy the specific eligibility criteria for one of the immigrant preference categories or nonimmigrant classifications. Having satisfied these criteria, however, non-citizens may still be denied admission to the United States if any of a number of general grounds for "inadmissibility" apply to them. Further, non-citizens who have been lawfully admitted to the U.S. may be forced to leave based on one of the many grounds for "removal" (commonly called "deportation"). This chapter describes the grounds for inadmissibility and removal.
Non-citizens within the United States who are charged with either inadmissibility or removability have their right to remain in the U.S. determined in a "removal hearing." Non-citizens who are deemed inadmissible when attempting to enter the U.S. are subject to "expedited removal" and can be removed without a hearing unless they have a credible claim to asylum. These proceedings, and forms of relief from removal, are described in chapter nine.
Grounds for inadmissibility and removal apply only to non-citizens. U.S. citizens cannot be barred from entering the United States or forced to leave the country against their will. Removal proceedings may only be commenced against a naturalized citizen after the successful completion of denaturalization proceedings to remove the individual's U.S. citizenship. See § 12-3, infra.
§ 8-1.1 The Meaning Of "Admission"
Grounds of inadmissibility apply only to non-citizens seeking admission to the United States. The phrase "seeking admission" encompasses more than attempting to obtain a visa or cross a border. Admission means lawful entry into the U.S. after inspection and authorization by an immigration officer. INA § 101(a)(13). Non-citizens are deemed applicants for admission when they arrive at a port of entry to the United States and also when they are present in the U.S. but have not been lawfully admitted. INA § 235(a). Consequently, non-citizens who have lived in the U.S. for many years can be considered "inadmissible" if they evaded inspection when they entered the country. INA § 212(a)(6). The same individuals could also be considered removable for being present in the U.S. in violation of the law. INA § 237(a)(1).
Nonimmigrants applying to adjust to permanent resident status are also considered to be seeking admission and are therefore subject to the grounds of inadmissibility. INA § 245. Consequently, persons lawfully admitted to the U.S. as nonimmigrants could become inadmissible for permanent residence based on acts committed while in the U.S. and could be subject to removal if they apply to adjust status. INA § 237(a)(1). Because the grounds for inadmissibility and removal are different, the same individuals might not be removable if they remain nonimmigrants.
Admissibility is also an issue for individuals seeking naturalization as U.S. citizens, because one of the requirements for naturalization is that the applicant was lawfully admitted to permanent residence. INA § 316. If the Bureau of Citizenship and Immigration Services determines that an applicant for naturalization was inadmissible at the time he or she became a permanent resident, it will not only deny citizenship but will also initiate removal proceedings. Frequently, a person's inadmissibility only comes to the attention of immigration authorities when he or she applies for one of these immigration benefits.
Non-citizen crew members and persons who are paroled into the U.S. for humanitarian reasons, although lawfully present in the country, are not considered admitted. INA § 101(a)(13)(B). In removal proceedings, they are accorded the same status as inadmissible persons.
a. Admission vs. Entry
Before enactment of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in 1996, the event that determined a person's status with respect to removal was not admission, but "entry." Entry refers to physically crossing into United States territory, free from restraint. Entry may be achieved after being inspected and authorized by an immigration officer, or by evading inspection, but physical presence as a result of parole does not constitute entry. See, e.g., Matter of Pierre (BIA 1973). Under pre-IIRIRA law, individuals who had not yet entered the U.S. were subject to "exclusion" hearings. Those persons who had entered the country, with inspection or without, were subject to "deportation" hearings and were entitled to rights not available in exclusion hearings. Pre-IIRIRA law recognized that some persons may have remained in the U.S. after having entered and thus were entitled to the greater procedural rights offered in a deportation hearing. It was not always easy, however, to determine whether an individual had successfully evaded inspection and thus become free of restraint. Also, basing the distinction between deportation and exclusion on entry actually encouraged non-citizens to evade inspection, so that they would obtain the greater rights available in deportation proceedings. The IIRIRA removed this rather perverse incentive by changing the focus from entry to admission and consolidating the removal procedures, but it retained separate grounds for exclusion (inadmissibility) and deportation (removal).
Although the IIRIRA diminished the significance of entry, it is still an important concept in immigration law and many of the grounds for inadmissibility and removal still refer to it. See, e.g., INA §§ 212(a)(3) (entering to engage in terrorist activity), 212(a)(5)(A)(I) (entering to perform labor), INA § 237(a)(1)(A) (inadmissibility at entry), and § 237 (a)(1)(A) (smuggling aliens within five years of entry). The criminal provisions of the INA also continue to make entry an essential element of various offenses.
b. Re-Entry of Permanent Residents
The question of whether permanent residents returning to the U.S. after traveling abroad should be subject to grounds of inadmissibility has been disputed for many years. In United States ex rel. Volpe v. Smith (Sup.Ct.1933), the Supreme Court upheld the exclusion of a non-citizen who, after 24 years of residence in the U.S. following a lawful entry, was held to be inadmissible on his return from a brief visit to Cuba. The Court's restrictive view concluded that "entry" included any coming of a non-citizen from a foreign country whether such coming was the person's first entry or not. The Court in Rosenberg v. Fleuti (Sup.Ct.1963) departed from this rigid application, recognizing that a person does not make an "entry" upon his return to the United States where he had no intent to leave, or did not in fact leave the country voluntarily. Hence, permanent residents would not be subject to the conditions of an entry after making a brief, innocent, and casual trip outside the United States.
In its new definition of "admission," the IIRIRA incorporated and expanded upon the Fleuti doctrine. Now, permanent residents will not be regarded as seeking admission (and thus are not subject to the grounds of inadmissibility) unless they (1) have abandoned or relinquished their permanent resident status, (2) have been absent from the United States for a continuous period in excess of 180 days, (3) have engaged in illegal activity after their departure from the U.S., (4) have departed from the U.S. while in removal or extradition proceedings, (5) have committed a criminal or related offense identified in section 212(a)(2) (including "crimes of moral turpitude", drug trafficking, or prostitution), or (6) are attempting to enter at a place other than a designated port of entry or have not been admitted to the U.S. after inspection and authorization by an immigration officer. INA § 101(a)(13)(C).
Although this definition made it clear that permanent residents are automatically admitted to the U.S. if none of these circumstances apply, it left open the question of whether the converse is true: must permanent residents who fall within one of the listed categories be considered applicants for admission after any departure from the U.S.? In Matter of Collado-Munoz (BIA 1997), the Board of Immigration Appeals held that the new definition of admission had entirely replaced the Fleuti doctrine and that permanent residents who fall within these categories would be subject to the grounds of inadmissibility even if they made only a brief, casual, and innocent visit outside the U.S. At least one district court disagreed: in Richardson v. Reno (S.D. Fla. 1998), the court held that permanent residents who fall into one of these categories must still be admitted if their departure was brief, casual, and innocent. That decision was subsequently reversed on other grounds. Some relatively minor crimes that are grounds for either removal or inadmissibility might not come to the attention of immigration authorities until a permanent resident returns to the U.S. after traveling abroad, at which time he or she could be denied entry. Permanent residents who have criminal records should therefore exercise caution in making any trip abroad, seeking new immigration benefits, or applying for citizenship.
§ 8-1.2 Grounds of Inadmissibility
At least in theory, immigration law requires a higher standard of personal conduct for individuals who wish to be admitted to the United States than for persons who have already been properly admitted and have committed some offense for which they may be subject to removal. Individuals who have been admitted and lived in the United States ordinarily have jobs, family, friends, and other significant ties to this country -- ties which should not be disrupted without a showing of very unacceptable conduct. Persons seeking admission can be subject to more stringent requirements because they usually do not have such ties. In practice, however, some of the grounds for removal, especially the "aggravated felony" grounds (see infra § 8-2.2(b)), are more stringent than the grounds of inadmissibility. It is possible for a non-citizen who is lawfully resident in the United States to be removed for committing a relatively minor crime that would not be a bar to admission.
The grounds of inadmissibility are listed in section 212 of the INA. When a non-citizen applies for a visa to travel to the U.S., the consular officer ordinarily considers whether any of these grounds apply, but a finding that none do is not conclusive. Immigration officers make an independent determination of a non-citizen's admissibility when he or she arrives at a port of entry.
Before the 1990 Act, the INA listed 34 classes of inadmissibility (formerly "exclusion"). The 1990 Act updated what was previously considered an unnecessarily complex classification scheme. Until the 1990 changes, even the most archaic classes remained intact; e.g., inadmissibility of "paupers, professional beggars, or vagrants" as one class and homosexuals as another. The 1990 Act eliminated both classes. In 1996, IIRIRA added a number of new grounds of inadmissibility and made some of the existing grounds more stringent. Congress has made additional updates to this section since 1996, most notably in the USA Patriot Act of 2001, which extended the inadmissibility grounds related to terrorism and made persons who have engaged in money laundering inadmissible. Section 212(a) contains ten general categories of inadmissibility grounds: health-related grounds; criminal and related grounds; security and related grounds; public charge proscription; labor certification requirements and qualifications for certain immigrants; illegal entrants and immigration violators proscription; documentation requirements; ineligibility for citizenship; previous unlawful presence; and miscellaneous.
Many of the grounds of inadmissibility can be waived in individual cases. For example, INA § 212(d)(3) allows the Secretary for Homeland Security to waive any of the grounds, except for a few security-related provisions, for nonimmigrants applying for a visa or seeking admission. Waivers for immigrants are more limited.
a. Health-Related Grounds
Section 212(a) begins with grounds of inadmissibility based on physical or mental health. Individuals who have a "communicable disease of public health significance" are inadmissible, as are those persons with a "physical or mental disorder and behavior associated with the disorder that may pose ... a threat to the property, safety, or welfare of the alien or others." INA § 212(a)(1)(A). Moreover, a drug addict or abuser is inadmissible under this section. INA § 212(a)(1)(A)(iv). Individuals seeking admission as immigrants, including those adjusting status in the U.S., are inadmissible unless they can document that they have received certain vaccines. INA § 212(a)(1)(A)(ii).
The communicable diseases that constitute grounds of inadmissibility include tuberculosis; leprosy; syphilis and other, less common, sexually-transmitted diseases; and Human Immunodeficiency Virus (HIV). 42 C.F.R. § 34.2. The inclusion of HIV in this list was controversial. Congress originally declared people testing HIV-positive inadmissible under an appropriations bill rider in 1987. The 1990 Act, however, referred only to "communicable diseases of public health significance" and did not explicitly mention HIV or AIDS. In response, the Department of Health and Human Services (HHS) promulgated proposed regulations that restricted this class to diseases whose public health significance resulted from their contagious nature. Because AIDS/HIV cannot be spread through casual contact, it was initially removed from the list of grounds of inadmissibility. The HHS proposal generated considerable criticism, particularly from conservatives in Congress and the first Bush administration. Ultimately, Congress amended section 212(a) to make inadmissible any non-citizen "who is determined to have a communicable disease of public health significance, which shall include infection with the etiologic agent for acquired immune deficiency syndrome." INA § 212(a)(1)(I).
INA § 212(g) provides for a waiver of inadmissibility for any non-citizen who has communicable disease of public health significance, including HIV, and who is the spouse, parent, unmarried son or daughter, or the minor unmarried lawfully adopted child of a U.S. citizen or permanent resident. This waiver is also available for persons who are granted permanent residence after being battered by a U.S. citizen or permanent resident spouse or parent. In addition, the vaccination requirement for persons seeking permanent residence may be waived if a doctor certifies that vaccination would be medically inappropriate, if the immigrant objects on religious grounds, or, in the case of adopted children under the age of eleven, if the adopting parent agrees to have the child vaccinated in the U.S.
b. Criminal and Related Grounds
INA § 212(a)(2) lists the criminal grounds of inadmissibility. Any person
is inadmissible who (1) was convicted of or admits to committing a "crime of
moral turpitude" or a controlled substance violation; (2) was convicted of two
or more offenses of any type and received aggregate sentences of five or more
years; (3) trafficked or assisted in the trafficking of controlled substances,
or knowingly benefitted from a spouse or parent's trafficking activities; (4)
is coming to the U.S. to engage in prostitution or commercialized vice; (5)
previously departed the U.S. as a condition of receiving immunity from prosecution
for a serious crime committed in the U.S.; (6) engaged in severe violations
of religious freedoms as an official in a foreign government; (7) has engaged
in trafficking in persons or knowingly benefitted from a spouse or parent's
trafficking; or (8) has engaged in money laundering or is coming to the U.S.
to launder money.
(1) CRIMES OF MORAL TURPITUDE
Although the term has been used in immigration law since 1891, possibly the most difficult criminal ground to define is the "crime of moral turpitude." "Moral turpitude" is not defined by statute. The courts generally agree that crimes of moral turpitude include crimes of violence and crimes "commonly thought of as involving baseness, vileness or depravity," and that they are defined, at least in part, by reference to current moral standards. Jordan v. De George (Sup.Ct.1951). This definition, however, is nearly as vague and open-ended as "moral turpitude." Nevertheless, the Supreme Court in Jordan held that the use of the term "moral turpitude" did not render the INA unconstitutionally vague because "the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices."
Some of the specific crimes that have been found to involve moral turpitude include murder, rape, robbery, kidnaping, voluntary manslaughter, theft, spousal abuse, any crime involving fraud (such as passing bad checks), and some aggravated DUI offenses. See In Re Torres-Varela (BIA 2001). Many of these crimes involve a specific "evil" intent, but this is not a requirement; for example, spousal abuse often does not involve any different intent than simple assault, but is considered a crime of moral turpitude because of the relationship between the abuser and the victim. See Matter of Tran (BIA 1996). Nor does the determination depend on the seriousness of the crime; possession of stolen property, for example, may involve moral turpitude even if the value of the property is trivial, if the state law includes an intent requirement. See Michel v. INS (2d Cir. 2000) (non-citizen deemed inadmissible after conviction for possessing stolen bus transfers).
In determining whether a crime involves moral turpitude, the court may look
only at the statute under which an individual was charged, and not at the person's
actual conduct. If the statute is divisible and contains some offenses that
involve moral turpitude and some that do not, the court may look to the record
of conviction to determine with which offense the person was charged. It is
worth noting, however, that section 212(a)(2) does not require that an applicant
for admission was convicted of a crime; simply admitting to acts that would
constitute a crime of moral turpitude is enough to make a person inadmissible.
(2) EXCEPTIONS AND WAIVERS OF THE CRIMINAL GROUNDS
The ground of inadmissibility for moral turpitude does not apply if the person seeking admission committed the crime before the age of eighteen and at least five years have passed since the end of any confinement, or if the maximum possible penalty for the crime was less than one year and the person was actually sentenced for no longer than six months. INA § 212(a)(2)(A).
In addition, inadmissibility may be waived for persons who have committed crimes of moral turpitude or a single controlled substance violation involving possession of 30 grams or less of marijuana, persons who have multiple convictions for certain crimes, individuals engaged in prostitution, and those who received immunity from prosecution. Such individuals may qualify for a waiver if (1) the crime was committed more than fifteen years before the application for admission or if it was a prostitution offense, the perpetrator has been rehabilitated, and a waiver would not be contrary to national security; (2) the individual is the spouse, parent, son, or daughter of a U.S. citizen or permanent resident and denying admission would cause extreme hardship to the citizen or permanent resident; or (3) the individual is seeking permanent residence after being battered by a U.S. citizen or permanent resident spouse or parent. INA § 212(h). No waiver is available, however, if the crime was murder or involved torture. These waivers are granted at the discretion of the Secretary for Homeland Security and his or her decision to grant or deny a waiver is unreviewable.
Waivers of the criminal grounds of inadmissibility are not available to lawful permanent residents who have committed an aggravated felony since being admitted to permanent residence, or permanent residents who have lived in the U.S. for fewer than seven years before the commencement of removal proceedings. INA § 212(h). As a result, a permanent resident who commits an "aggravated felony" (see § 8-2.2(b), infra.) and subsequently leaves the United States, whether removed or not, will be denied admission, but a nonimmigrant in similar circumstances might be able to obtain a waiver. In Lara-Ruiz v. INS (7th Cir. 2001), the court held that the unfavorable treatment of lawful permanent residents under this provision does not violate equal protection because Congress could have had a rational basis for considering permanent residents who commit crimes a greater threat to the country than nonimmigrant criminals.
c. Security and Related Grounds
The national security grounds of inadmissibility have historically reflected popular fears of threats to the United States. A 1903 Immigration Act, passed after the assassination of President McKinley, excluded anarchists and others who advocate the forceful overthrow of the U.S. government. 32 Stat. 1213. In the 1950s, Congress added provisions excluding Communists and members of a number of other "subversive" organizations. See INA § 212(a)(3). Since the 1990s, the primary security concern has been terrorism. The 1990 Act rendered inadmissible persons believed to have committed terrorist attacks and those suspected of seeking admission to the U.S. to engage in terrorism. The AEDPA and IIRIRA, passed in the wake of the 1993 attack on the World Trade Center and the Oklahoma City bombing, expanded the terrorist ground by excluding all representatives or members of terrorist organizations designated by the Secretary of State. Most recently, the USA Patriot Act, passed in response to the September 11, 2001 attacks, further extended this ground by broadening the definition of terrorist organizations and adding to the list of inadmissible non-citizens those who use positions of prominence to endorse terrorism, representatives of groups that support terrorist organizations, and spouses or children of persons inadmissible on terrorism grounds. See INA § 212(a)(3)(B). The Act further enables immigration authorities to detain any non-citizen suspected of terrorist activity and keep that person in detention until finally removed or cleared of the charge. See INA § 236A.
The current terrorism grounds make inadmissible any person who (1) has in the past, is currently, or is likely in the future to engage in terrorist activities; (2) is an official representative or spokesperson of a terrorist group or a group that endorses terrorism; (3) is a member of a terrorist group; (4) has used a position of prominence to endorse terrorism or persuade others to support terrorism; or (5) is the spouse or child of a non-citizen who is inadmissible on terrorist grounds, unless the spouse or child did not know about the terrorist activity or has renounced it. INA § 212(a)(3)(B)(i). The Act also excludes anyone who has been associated with a terrorist organization and intends to endanger the welfare, safety, or security of the U.S. INA § 212(a)(3)(F). "Terrorist activities" defined by the statute include hijacking or sabotaging a conveyance, holding people hostage, committing an assassination, or using any kind of weapon to harm people or property, other than for purely personal gain. INA § 212(a)(3)(B)(iii). "Engaging in terrorist activities" includes preparing, planning, or committing such activities; soliciting funds or providing material support; and soliciting individuals to participate in such acts. INA § 212(a)(3)(B)(iv). "Terrorist organizations" include those designated by the Secretary of State, as well as any group of two or more people, whether designated as a terrorist organization or not, that engages in terrorist activities. INA § 212(a)(3)(B)(vi).
To identify possible terrorists, U.S. consulates are instructed to check names of visa applicants against "lookout" lists prior to issuing a visa. If an applicant's name matches a name on one of the lookout lists, U.S. State Department approval is required before the consulate can issue a visa. State Department approval is also required for any applicant holding a passport from a country designated as a state sponsor of terrorism (currently Cuba, Libya, Iran, Iraq, North Korea, Sudan, and Syria), and for applicants working in sixteen high-technology fields. The Homeland Security Act authorized the Bureau for Border Security to place staff in U.S. consulates to help in compiling lookout lists and to train the consular staff who issue visas to identify possible terrorists.
In addition to the terrorism grounds, INA § 212(a)(3) makes inadmissible anyone who is believed to be seeking entry to the U.S. to engage in espionage, violent opposition to the U.S. government, or any other unlawful activity; persons whose activities in the U.S. would be adverse to foreign policy, unless they are foreign government officials or candidates for office in a foreign government; and members of the Communist party and other totalitarian parties. Also inadmissible are people who assisted in persecutions carried out by the Nazi government, as well as anyone else who has participated in genocide.
The inadmissibility grounds related to foreign policy and membership in "subversive" groups have been subject to several judicial challenges. The Supreme Court upheld these provisions against a First Amendment challenge in Kleindienst v. Mandel (Sup.Ct.1972). The Court reasoned that non-citizens have no constitutional right to be admitted into the United States, and U.S. citizens have no right to insist that non-citizens be admitted to the country so that ideas may be exchanged. Essentially, Congress' plenary power to control immigration supersedes a citizen's right to receive information under the First Amendment. The D.C. Circuit held in Abourezk v. Reagan (D.C.Cir.1986) that the government's decision that an anarchist or a Communist party member is inadmissible must be based on projected engagement in activities prejudicial to the public interest, and such perception must be independent of the fact of membership alone in an organization. The current version of the INA provides that no one may be excluded under the foreign policy ground solely for past beliefs, statements or associations, if such beliefs, statements or associations would be lawful in the United States. INA § 212(a)(3)(C).
Inadmissibility on the basis of Communist or other totalitarian party membership may be waived where the membership was involuntary or was solely to obtain food or employment, where membership was terminated more than two years ago (five years if the totalitarian party still governs the non-citizen's country), or to assure family unity if the individual has a close relative who is a U.S. citizen or permanent resident. INA § 212(a)(3)(D). There are no other waivers specific to the national security grounds.
d. Inadmissibility for Violations of Immigration Law or Procedure
Several of the inadmissibility grounds in section 212(a) are related to the
enforcement of other immigration laws and procedures. Non-citizens who enter
the U.S. without being admitted or paroled, those who stay beyond the expiration
of their nonimmigrant status, and those who have been removed from the U.S.
may all be inadmissible for varying periods.
(1) ILLEGAL ENTRANTS AND IMMIGRATION VIOLATORS
Any non-citizen who is present in the U.S. without being admitted or paroled, or who arrives in the United States at a place other than a designated port of entry is inadmissible INA § 212(a)(6)(A)(i). This ground applies only to persons in the United States, not to those applying for admission from overseas. In addition to being inadmissible, those persons are subject to civil penalties for illegal entry of $50 to $250 for each entry or attempted entry. The fine doubles for a person who has previously been subjected to a civil penalty under this section. INA § 275(b). The only exemption from this ground is for victims of domestic violence who can demonstrate a connection between the abuse they have suffered and their illegal entry. INA § 212(a)(6)(A)(ii).
A number of other immigration violations are grounds of inadmissibility under section 212(a)(6). Individuals who are ordered removed in absentia for failing, without reasonable cause, to attend a removal proceeding are inadmissible for ten years after their departure or removal. INA § 212(a)(9). See § 9-2.1, infra for more information on in absentia removal orders. Persons who made a material misrepresentation of fact in the application process or falsely claimed U.S. citizenship in order to obtain immigration or other government benefits are inadmissible. INA § 212(a)(6)(C). Non-citizens who are stowaways, who have encouraged, induced, assisted, abetted, or aided the illegal entry of other non-citizens, or who violated the terms of F-1 student visa status are also inadmissible. Violators of F-1 status are inadmissible until they have been outside the U.S. for a continuous period of 5 years after the date of violation. INA § 212(a)(6)(D),(E),(G)
Some exceptions and waivers apply to these grounds. The inadmissibility ground for false citizenship claims does not apply to persons who obtained permanent residence before the age of sixteen, have a natural or adopted parent who is a U.S. citizen, and reasonably believed that they were also citizens. INA § 212(a)(6)(C). Immigration authorities may also waive the misrepresentation ground for immigrants whose exclusion would result in extreme hardship to a U.S. citizen or permanent resident spouse or parent. INA § 212(i). The smuggling ground (assisting the illegal entry of others) may be waived for returning permanent residents or non-citizens seeking admission as permanent residents if they only assisted a spouse, parent, son, or daughter to enter illegally.
(2) PREVIOUS REMOVAL AND UNLAWFUL PRESENCE
INA § 212(a)(9)(A) describes the inadmissibility grounds related to previous removal from the United States. While section 212(a)(6)(A) applies to persons within the U.S., this section applies to persons applying for a visa at a consulate or seeking admission at a port of entry. Non-citizens who received a removal order after expedited removal proceedings or other proceedings initiated upon their arrival in the U.S. are inadmissible for a period of five years. Persons who were removed after any other removal proceeding, or who left the U.S. while in removal proceedings, are inadmissible for a period of ten years. Those who return to the U.S. and are removed for a second or subsequent time are inadmissible for twenty years. Any non-citizen who is removed after committing an aggravated felony is permanently inadmissible. Non-citizens may avoid this ground of inadmissibility by obtaining the Secretary for Homeland Security's consent to their admission prior to re-entering the United States from a foreign country. INA § 212(a)(9)(A).
Since 1996, non-citizens who depart the U.S. after extended periods of unlawful presence are also inadmissible. Before enactment of the IIRIRA, individuals who departed the country before the INS initiated removal proceedings against them could seek readmission by applying for a new visa in their country of origin. The IIRIRA ended this method of avoiding removal. Now, a non-citizen who has been unlawfully present in the U.S. for a period of more than 180 days but less than one year and voluntarily leaves before removal proceedings are initiated is inadmissible for three years. INA § 212(a)(9)(B)(i)(I). A non-citizen who has been unlawfully present for one year or more is barred from admission into the U.S. for ten years. INA § 212 (a)(9)(B)(i)(II). The ten-year bar applies regardless of whether the individual's departure is voluntary. Further, anyone who has previously been removed, or has accumulated one year or more of unlawful presence, and enters or attempts to enter the U.S. without being admitted becomes permanently inadmissible. INA § 212(a)(9)(C). An entry or attempted entry after being removed can also trigger criminal penalties under INA § 276. Except for subsection (C), unlawful presence is not cumulative; for example, two separate four-month periods of unlawful presence will not constitute grounds of inadmissibility.
Persons who remain in the U.S. unlawfully for fewer than 180 days do not entirely escape sanction. INA § 222(g) denies readmission to nonimmigrants who stay beyond the expiration of their status unless they apply for a new nonimmigrant visa in their country of origin. Also, non-citizens are less likely to receive a new visa if they overstayed their previously-permitted period of stay.
The INA defines "unlawful presence" as being present in the U.S. without being admitted or paroled, or being present after the non-citizen's nonimmigrant status expires (referred to as an "overstay"). INA § 212 (a)(9)(B)(ii). To date, no regulations have been issued to clarify when unlawful presence begins, but the INS addressed this issue in several memos. See 74 Interp.Rel. 562. Unlawful presence is triggered when immigration authorities commence removal proceedings or when either the BBS or an immigration judge determines that an individual has violated the terms of nonimmigrant status. Without such a determination, a violation of status other than an overstay will not trigger unlawful presence. Non-citizens in removal proceedings continue to accumulate unlawful presence unless they ultimately prevail in the proceedings.
Some exceptions apply to this ground of inadmissibility. Minors, applicants for asylum, persons protected by family unity, and certain battered women and children do not accumulate unlawful presence. INA § 212(a)(9)(B)(iii). (The family unity program grants protected status to spouses and unmarried children under twenty-one years of age of certain lawful permanent residents, if they have resided in the U.S. since 1988 or earlier.) Further, the three- and ten-year bars may be waived for an immigrant who is a spouse, son or daughter of a U.S. citizen or permanent resident if excluding the immigrant would cause extreme hardship to the citizen or permanent resident spouse or parent. INA § 212 (a)(9)(B)(v). The permanent bar against individuals who attempt to enter the U.S. without being admitted may be waived for battered women and children and for any person whose last departure from the U.S. was more than ten years ago. INA § 212(a)(9)(C).
Until April 2001, INA § 245(i) permitted some persons who entered the U.S. without inspection or overstayed a lawful status to adjust to permanent resident status upon the payment of $1,000, if an immigrant visa was available and no other bar applied. INA § 245(i). After being extended twice, this provision expired on April 30, 2001 and, despite several proposals for another extension, has not been renewed as of this writing. Some individuals are, however, still allowed to adjust status under this provision if they filed an application before it expired in 2001.
e. The Public Charge Ground
Any non-citizen who is believed likely to become a public charge is inadmissible at the time of application. INA § 212(a)(4)(A). Factors that immigration and consular officers must consider in determining whether a non-citizen is likely to become a public charge include age, health, family status, assets, resources, and financial status. INA § 212 (a)(4)(B).
Immediate relatives of U.S. citizens, immigrants under family-based preferences, and a select group of employment-based immigrants are inadmissible without an affidavit of support. INA § 212 (a)(4)(C),(D). A sponsor must agree in the affidavit to provide support for the immigrant and his or her family at an annual income that is not less than 125% of the federal poverty guidelines for ten years or until the immigrant becomes a U.S. citizen. The affidavit is a legally binding contract. See § 5-5.1(d), supra.
f. Other Grounds of Inadmissibility
(1) LABOR CERTIFICATION
The INA lists the criteria for labor certification, without which most non-citizens immigrating under § 203(b) would be inadmissible. INA § 212(a)(5). This ground of inadmissibility has resulted in a process, administered by the U.S. Department of Labor and the State Employment Services, known as labor certification. Prospective employers must obtain labor certification before petitioning for an immigrant by demonstrating to the satisfaction of the Department of Labor that there are not sufficient qualified, willing U.S. workers to serve in a position for which an immigrant is qualified and is willing to perform. See 5-5.1(b), supra.
(2) DOCUMENTATION REQUIREMENTS
Section 212(a)(7) spells out the documentation requirements for non-citizens seeking admission. An unexcused failure to possess the required travel documents renders a non-citizen inadmissible. Immigrants must have a valid passport, travel document, or other document establishing identity and nationality, as well as a valid immigrant visa, border crossing card, or other valid entry document. Nonimmigrants must have a passport valid for six months beyond the date of admission and a valid nonimmigrant visa, unless they are entering under the visa waiver program or the requirements are waived by another provision. INA § 212(a)(7).
(3) PERSONS INELIGIBLE FOR CITIZENSHIP
INA § 212(a)(8) renders inadmissible any immigrant who is "permanently ineligible to citizenship" and any person who departed from or remained outside the United States in order to avoid military training or service during a period of war. As defined in INA § 101(a)(19), the phrase "ineligible to citizenship" refers to ineligibility for citizenship due to violation of Selective Service laws or any section of the INA. Since commission of an "aggravated felony" is a permanent bar to obtaining citizenship (see § 8-2.2(b), infra), this section could be read to exclude anyone who has committed an aggravated felony. The Board of Immigration Appeals, however, in Matter of Kanga (BIA 2000), interpreted the phrase in this context as referring only to ineligibility for citizenship due to draft evasion. The Board reasoned that, since Congress has passed a series of laws making various aggravated felonies grounds for removal, if it intended to make the same crimes grounds of inadmissibility it would have done so explicitly.
The "miscellaneous" grounds of inadmissibility listed in INA § 212(a)(10) include entering the U.S. to practice polygamy, being an international child abductor, and voting unlawfully. The same section makes former U.S. citizens who renounced citizenship to avoid taxation inadmissible. INA § 212(a)(10). The provision excluding persons who voted unlawfully was added by the IIRIRA in 1996. Congress amended this provision in the Child Citizenship Act of 2000 to provide an exemption for persons who obtained permanent residence before the age of sixteen as the natural or adopted child of a U.S. citizen and who reasonably believed when they voted that they were citizens.
Removal is the expulsion of a non-citizen who has already been admitted to the United States. In general, non-citizens may be removed because they were inadmissible at the time of entry, because they have violated a condition of their status in the U.S., or because they have committed other prohibited acts. The Immigration and Nationality Act lists six major categories of persons subject to removal. These categories cover non-citizens who (1) were inadmissible at time of entry or adjustment of status or have violated status, (2) have committed certain criminal offenses, (3) have failed to register or have falsified documents, (4) have engaged in terrorism or otherwise threatened national security or U.S. foreign policy, (5) have become a public charge, or (6) unlawfully voted. These categories are further subdivided, so there are many more specific grounds for removal. The 1990 Act reduced the number of grounds for removal in an attempt to make the list comprehensible and more current. Subsequent amendments, such as the Technical Amendments Act of 1991, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), and IIRIRA, expanded the list once again, particularly the crime-related grounds. Before examining these grounds in detail, some general aspects of removal will be examined.
§ 8-2.1 General Considerations
In theory at least, removal is not a criminal punishment, but is a civil proceeding designed primarily to rid the United States of statutorily defined undesirables. The courts have long recognized the plenary power of Congress to expel and remove non-citizens. That Congress allows non-citizens to enter the United States "is a matter of permission and tolerance. The government's power to terminate hospitality has been asserted by this court since the question first arose." Harisiades v. Shaughnessy (Sup.Ct.1952).
Even though the courts do not consider removal a criminal punishment, they recognize that it is a severe penalty. Most non-citizens have voluntarily chosen to come to the United States and removal forces them to leave their homes, jobs, friends, and in some cases, families. Indeed, removal may result "in loss of both property and life; or all that makes life worth living." Ng Fung Ho v. White (Sup.Ct.1922). Further, persons who have been removed are barred for a minimum of ten years from entering the United States unless they obtain special permission. INA § 212(a)(9). Because the consequences of removal are drastic, the student of immigration law should become familiar with the many and varied aspects of removal.
Several specific classes of non-citizens are exempt from the removal statutes, including ambassadors, public ministers, accredited career diplomats, consular officers, and the members of their families. Employees of international organizations such as the United Nations are also exempt from removal statutes. INA § 102. All other non-citizens, including lawful permanent residents, may be removed.
Removing a non-citizen often results in the "de facto" removal of the individual's U.S. citizen children. The Third Circuit rejected the claim that removal denies a non-citizen's children the right, as U.S. citizens, to continue to reside in the United States. Removal of a child's parents will merely postpone, but not bar, the child's residence in the United States, if he or she should later choose to live in this country. The court reasoned that Congress did not intend to give such children the ability to confer immigration benefits on their parents. Acosta v. Gaffney (3d Cir.1977).
Unlike most statutes regulating conduct, the INA frequently applies retroactively. The BBS may remove non-citizens for conduct which was not a ground for removal at the time they committed the act. For example, a Nazi who legally entered the United States in 1965 may be removed under the provisions of a 1978 amendment to the act, despite residing in the United States for a number of years. Removal for acts which were not grounds for removal when committed does not violate the constitutional prohibition against ex post facto laws. Mahler v. Eby (Sup.Ct.1924). The INA also does not contain a general statute of limitations, although there are particular statutes of limitation contained within the classes of persons subject to removal. For example, non-citizens who become dependent on government benefits are removable only if they become a public charge within five years of entry into the United States. INA § 237(a)(5). Accordingly, the BBS may remove a Greek who becomes a public charge four years after entry, but not an Italian who becomes a public charge five and a half years after entry. Because there is no general statute of limitations, however, the BBS can remove the Greek at any time--even if he or she ceases to be
§ 8-2.2 Grounds for Removal
a. Inadmissibility at Entry and Status Violations
The first class of removal grounds applies to non-citizens who were inadmissible when they entered the United States or adjusted status and those who have violated conditions of their admission. INA § 237(a)(1). Section 237(a)(1)(A) allows the BBS to remove anyone who should not have been granted admission because of the inadmissibility or exclusion grounds in effect at the time that person entered the country. This concept has profound implications. Individuals who have committed no offenses since being admitted can still be removed on the basis of their actions prior to entry.
Non-citizens who are present in the U.S. in violation of the INA or any other law of the U.S. are removable. INA § 237(a)(1)(B). Non-citizens who violate or fail to comply with any terms imposed at entry are also subject to removal, as are those who fail to maintain the nonimmigrant or immigrant status to which they were admitted. INA § 237(a)(1)(C). Violations of status that could constitute grounds for removal include overstaying the time limit of a nonimmigrant visa or accepting employment without the requisite authorization. Individuals accorded permanent resident status on a conditional basis under INA § 216 (referring to spouses of U.S. citizens) or § 216A (investors) become removable if they fail to have their status converted from conditional to unconditional. INA § 237(a)(1)(D). A non-citizen who knowingly encourages, aids, or abets another non-citizen to enter the United States illegally may be removed; this provision may, however, be waived if the person who illegally entered the United States was the non-citizen's spouse, parent, son, or daughter, and such a waiver would serve humanitarian purposes, assure family unity, or would be in the public interest. INA § 237(a)(1)(E).
Non-citizens may also be removed for gaining admission to the U.S. by committing marriage fraud, defined as marrying a United States citizen solely to obtain immigration benefits. INA § 237(a)(1)(G). Marriage fraud is presumed if a non-citizen gains admission based on a marriage contracted less than two years before the date of admission and the marriage is terminated or annulled within two years after the non-citizen is admitted to the United States. The non-citizen can only overcome this presumption by demonstrating that the marriage was bona fide. See § 5-2.1(c), supra. The BBS also has authority to determine whether any previous marriage was fraudulent and if so, to remove the non-citizen.
The INA also provides a waiver for non-citizens who were inadmissible at the time of admission because they obtained their visas or labor certifications through misrepresentation, provided the non-citizens are the spouse, parent, son, or daughter of a U.S. citizen or permanent resident. INA § 237(a)(1)(H).
b. Criminal Grounds
Violations of criminal grounds are the basis for more than twenty percent of all formal removals, the second largest category after illegal entries. Because of the considerable expansion of these grounds since 1986, virtually any criminal activity other than the most petty offenses and misdemeanors can have serious adverse consequences to non-citizens and their family members. The criminal grounds for removal are listed in INA § 237(a)(2). They are similar, but not identical, to the grounds of inadmissibility.
(1) CRIMES OF MORAL TURPITUDE
Non-citizens are subject to removal if convicted within five years of admission to the U.S. of a crime of moral turpitude carrying a possible sentence of one year or more, or if convicted at any time of two or more crimes of moral turpitude "not arising out of a single scheme of criminal misconduct," regardless of the sentence imposed. INA § 237(a)(2)(A). The difficulties of defining moral turpitude were discussed in section 8-1.2(b), supra. In addition to those issues, this provision of the INA raises the questions of what constitutes a "conviction" and what is a "single scheme" of misconduct.
Unlike the inadmissibility grounds, which apply even if an individual merely admits to committing a crime of moral turpitude, the removal grounds apply only after a conviction. The conviction must be final; hence a non-citizen may not be deported while a direct appeal is pending. Problems arise, however, because many "crimes of moral turpitude" are relatively minor offenses for which the punishment can be ameliorated by state rehabilitative statutes. For example, some state courts will expunge a conviction after the offender successfully completes a period of probation; other courts may defer judgment so that a conviction is never entered unless the offender violates probation. In the first case, a non-citizen offender could potentially be removed at any time during or after the probationary period, because a conviction had been entered, while in the second case removal proceedings could only be instituted if the non-citizen violated probation, because only then would a conviction occur. Given the wide variation in such statutes among the states, the federal courts struggled for some time to create a uniform definition of "conviction" for immigration purposes.
In Matter of Ozkok (BIA 1988), the court stated that there must be three elements present to find a conviction for immigration purposes: (1) a judge or jury has found the person guilty or the person has entered a plea of guilty or nolo contendre or has admitted sufficient facts to warrant a finding of guilty; (2) the judge has ordered some form of punishment, penalty, or restraint on the person's liberty; and (3) a judgment or adjudication of guilt may be entered without any further proceedings to determine the person's guilt or innocence if he or she violates the terms of probation or fails to comply with the requirements of the court's order.
IIRIRA's amendments to the INA narrowed Ozkok by codifying only the first two prongs of the Ozkok test. The INA thus currently defines conviction as "a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendre or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty." INA § 101(a)(48)(A). This new definition applies retroactively to offenses committed before enactment of the IIRIRA. Matter of Punu (BIA 1998).
The BIA held in Matter of Roldan (BIA 1999) that because of the new
definition, expungement under a state rehabilitative statute does not cancel
a conviction for immigration purposes. The Board reasoned that giving effect
to the various state rehabilitation statutes would conflict with Congress' desire
for a uniform immigration standard. The Ninth Circuit subsequently reversed
this decision as applied to first-time drug offenses, finding that it conflicted
with the Federal First Offender Act. Lujan-Armendariz v. INS (9th Cir.
2000). Then the BIA held in Matter of Rodriguez-Ruiz (BIA 2000) that
a judgment vacated through a mechanism other than a rehabilitative statute would
not be considered a conviction for immigration purposes. In addition, a judgment
deeming someone a youthful offender or juvenile delinquent is not a conviction.
Matter of Devison (BIA 2000). Consequently, a few avenues remain open
by which non-citizens could avoid being deported for minor crimes.
(2) AGGRAVATED FELONIES
Section 237(a)(2)(iii) authorizes the removal of any non-citizen who has been convicted of an "aggravated felony" at any time after entry. When first introduced in 1988 as a ground for removal, "aggravated felony" referred to murder, drug trafficking and trafficking in firearms. 102 Stat. 4141. The list of aggravated felonies has since been expanded several times, most notably in 1996 in the AEDPA and IIRIRA. In addition to the original offenses, the definition of "aggravated felony" now includes rape, sexual abuse of a minor, money laundering, crimes of violence for which the term of imprisonment is at least one year, theft, burglary, kidnaping, child pornography, RICO offenses, running a prostitution business or transporting people for the purpose of prostitution, fraud offenses where the loss exceeds $10,000, forgery, obstruction of justice, and other crimes. INA § 101(a)(43). As with crimes of moral turpitude, these offenses run the gamut from very serious crimes to relatively minor ones.
In determining whether a particular crime is an aggravated felony, federal law, not state law, controls. A crime categorized as a misdemeanor under state law constitutes an aggravated felony if it falls within the INA definition. See, e.g., Matter of Small (BIA 2002) (holding that misdemeanor sexual abuse of a minor is an aggravated felony). Further, INA § 101(a)(48) states that the suspension of a sentence does not change the classification of a crime as an aggravated felony. In United States v. Pacheco (2nd Cir. 2000), the Court of Appeals found that a misdemeanor theft charge for which the defendant received a one-year suspended sentence constituted an aggravated felony for immigration purposes. Pacheco had stolen a ten-dollar video game. He also had a misdemeanor conviction for domestic assault, constituting an independent ground for removal.
Although included as one of the original aggravated felonies, drug trafficking has been the subject of some controversy in recent years, in part because the definition of that crime includes the relatively common offense of possession. See 18 U.S.C. § 924(c); 21 U.S.C. § 801 et. seq.. In Matter of K- V- D- (BIA 1999), the BIA held that state law misdemeanor drug convictions would be considered aggravated felonies if the analogous federal crime was a felony. The Board subsequently overruled this decision in Matter of Yanez-Garcia (BIA 2002) and decided instead to defer to the federal circuit courts of appeal as to whether a particular state crime constitutes a felony drug trafficking offense.
Like drug trafficking, the "crime of violence" provision can encompass some relatively minor crimes. In a well-publicized example, removal proceedings were initiated against a permanent resident who had lived in the U.S. since infancy after the INS discovered that she once received a one-year suspended sentence for pulling another woman's hair. Only an executive pardon saved her from removal. 77 Interp.Rel. 1012. For some time, DUI offenses were also treated as crimes of violence. In Matter of Puente (BIA 1999), the Board held that driving under the influence would be considered an aggravated felony when punishable by a sentence of one year or more. After four of the circuit courts disagreed, the BIA reconsidered this decision and, in Matter of Ramos (BIA 2002), decided that DUI convictions are not crimes of violence.
The consequences of being convicted of an "aggravated felony" are severe. In addition to being subject to removal, non-citizens convicted of such offenses are permanently barred from re-entering the U.S. and may be sentenced to up to twenty years in prison if they re-enter illegally. INA §§ 212(a)(9)(i)(A), 276(b). A person convicted of an aggravated felony cannot establish good moral character and is thus permanently barred from naturalizing as a U.S. citizen. INA § 316(d). Persons convicted of aggravated felonies are subject to mandatory detention, can be placed in expedited removal proceedings, and are ineligible for most forms of relief from removal. INA §§ 236, 238, 240A, 240B. In addition, removal orders based on an aggravated felony are not subject to judicial review, although federal courts do have jurisdiction to determine whether a particular offense is an aggravated felony. INA § 242(a)(2)(C); see also Flores-Miramontes v. INS (9th Cir. 2000).
(3) OTHER CRIMINAL GROUNDS
Other sections of the INA allow removal for conviction of specific crimes. INA § 237(a)(2)(A)(iv) provides for the removal of any non-citizen convicted of a crime related to high speed flight from an immigration checkpoint. The BBS may remove a non-citizen convicted of violating any law or regulation relating to a controlled substance, such as narcotic drugs and marihuana. INA § 237(a)(2)(B). Cf. § 1-5, supra. Moreover, any non-citizen who at any time after admission abuses or becomes addicted to drugs is subject to removal. INA § 237(a)(2)(B)(ii). Unlike the general moral turpitude category, a non-citizen need not be sentenced in order to be removed for narcotics offenses. Likewise, a non-citizen convicted of possessing or carrying any automatic weapon, semi-automatic, or sawed-off shotgun may be removed. INA § 237(a)(2)(C). Non-citizens convicted of violating the Selective Service Act, espionage statutes, or certain other statutes dealing with the national defense are subject to removal if immigration authorities designate the non-citizen as an undesirable. INA § 237(a)(2)(D).
(4) AVOIDING THE IMMIGRATION CONSEQUENCES OF CRIMES
Because of the serious, sometimes unanticipated consequences of criminal conduct for non-citizens and their families, lawyers representing non-citizens accused of a crime, prosecutors, and judges have several special considerations to keep in mind. First, if the non-citizen is accused of a crime of moral turpitude, or an "aggravated felony," the lawyer will want to consider pleading the non-citizen to a lesser offense that does not involve moral turpitude, has a maximum sentence of less than one year, and/or is classified as a misdemeanor. Some prosecutors and judges are not aware of the severe consequences of criminal convictions for non-citizens who may, in some cases, be the sole support of U.S. citizen or permanent resident family members. In many cases, the rehabilitative and punitive purposes of prosecuting and sentencing can be achieved through imposing a stronger sentence for a lesser level crime without causing collateral unwanted immigration consequences.
Second, the INA also specifies that the moral turpitude or aggravated felony provisions do not apply to non-citizens who have been granted a full and unconditional pardon by the President or the governor of the state of conviction. INA § 237(a)(2)(A)(v). Hence, as a last resort, the lawyer may attempt to obtain a full pardon for the non-citizen. A pardon has no effect, however, on the other criminal grounds such as firearm or drug offenses. The statute does not provide for an automatic stay of removal upon filing a pardon application, so attorneys should apply for such a stay before applying for a pardon for their clients.
c. Registration Requirements
Under INA § 265, all non-citizens who remain in the United States for longer than thirty days, including permanent residents, are required to report any change of address to immigration authorities within ten days. Failure to satisfy this requirement, or any other registration requirement, constitutes grounds for removal. INA § 237(a)(3)(A). Although part of the INA since 1952, this provision was rarely enforced. After the terrorist of attacks of September 11, 2001, however, tracking non-citizens in the U.S. became a matter of great public concern. Consequently, in 2002 the Justice Department announced that it would begin enforcing the change of address requirement and would impose special registration requirements on nonimmigrants who are considered security risks. 67 Fed.Reg. 52584. The heightened registration requirements currently apply to nonimmigrants from twenty designated countries, and could be extended to others in the future. In addition to reporting address changes, these nonimmigrants are required to report to the BBS thirty days after arrival and every twelve months thereafter to confirm their continued compliance with the conditions of their nonimmigrant status. They must also report any change of employment or school registration and any departure from the U.S. Failure to comply with any of these requirements could constitute grounds for removal and future inadmissibility.
d. National Security Grounds
The BBS also may remove non-citizens for engaging in acts that threaten national security or U.S. foreign policy after their entry into the United States. Since there is no statute of limitations in the INA, the non-citizen may be removed any time after the prohibited act is committed. The national security removal grounds parallel the grounds of inadmissibility. Like the inadmissibility grounds, the removal grounds have changed as national security concerns have changed. Prior to 1990, the statute classified as removable the following "subversives":
2. Aliens advocating or teaching opposition to all organized government;
3. Aliens who are members of or affiliated with the Communist Party or any other totalitarian organization;
4. Aliens, not already covered by the preceding classes, advocating the economic, international, and governmental doctrines of world communism;
5. Aliens advocating the overthrow, by force and violence, of the United States government, or any of its officers;
6. Aliens who write, publish, or distribute materials which are subversive;
7. Aliens who affiliate with persons who write, publish, or distribute subversive literature;
8. Aliens whom the Attorney General believes entered the United States principally or incidentally to engage in activities endangering the welfare, safety, or national security of the United States.
The 1990 Act eliminated most of these provisions. That Act and subsequent amendments shifted the focus from subversive activity to terrorism. The current law permits removal of any non-citizen who violates U.S. espionage law, engages in criminal activity that endangers public safety or national security, or engages in any activity whose purpose is to overthrow the U.S. government by force or unlawful means. INA § 237(a)(4)(A). A non-citizen who has engaged, is engaged, or at any time after admission engages in terrorist activity, as defined in section 212(a)(3), also is subject to removal. INA § 237(a)(4)(B). Since this section relies on the definition of terrorism contained in section 212(a)(3), the changes made to that definition by the USA Patriot Act affect removal as well as inadmissibility. The Secretary of State has the discretion to recommend for removal a non-citizen whose presence he or she believes will have serious adverse consequences for U.S. foreign policy. INA § 237(a)(4)(C).
In addition, a 1978 amendment to the INA, updated in the 1990 Act, permits the BBS to remove non-citizens who participated in Nazi activities or other acts of genocide. According to the Act, any non-citizen who, in association with the Nazi party, "ordered, incited, assisted, or otherwise participated in the persecution of any person because of race, religion, national origin, or political opinion" may be removed, as can anyone else who participated in genocide. INA §§ 237(a)(4)(D), 212(a)(3)(E). This provision was unsuccessfully challenged as an unconstitutional bill of attainder and ex post facto law. The Second Circuit in Linnas v. INS (2d Cir.1986) held that the provision is not a bill of attainder because removal is not punishment. Linnas, who was found to be chief of a Nazi concentration camp, was ordered removed to the Soviet Union, even though he was convicted in absentia in the Soviet Union and sentenced to death there for his war crimes. Linnas' argument that his removal would be unlawful extradition was likewise unsuccessful.
e. Other Removal Grounds
The INA also provides for the removal of certain other statutorily defined undesirables. Non-citizens convicted of a crime of domestic violence, stalking, child abuse, child neglect, child abandonment, or of a violation of a protective order relating to domestic violence are removable. INA § 237(a)(2)(E). The BBS may also remove a non-citizen who knowingly or recklessly prepares, files, or assists another in preparing or filing a false application or document for immigration benefits. INA § 237(a)(3)(C)(i). A waiver is available for a first violation by a permanent resident who committed a document fraud offense solely to assist or support a spouse or child. INA § 237(a)(3)(C)(ii). IIRIRA also added new grounds for removal and criminal penalties for non-citizens who falsely claim citizenship. INA § 237(a)(3)(D). Non-citizens who within five years of admission become "public charges" by applying for certain government benefits can be removed unless they can show that the need for such benefits arose after their admission. INA § 237(a)(5). Further, IIRIRA amendments provide for removal of those non-citizens who have voted unlawfully. INA § 237(a)(6). As with the similar ground of inadmissibility, the unlawful voting ground is waived in the case of anyone who has a U.S. citizen parent, became a lawful permanent resident while under the age of sixteen, and reasonably believed that he or she was also a citizen.