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4 Common Reasons for Being Inadmissible or Deported from the United States
This blog is co-written by Eric Noble-Marks (Harvard Law Student and Summer Law Student for Moodys Tax)
Do you enjoy soaking up the sun in Malibu, surfing the waves in Maui, letting loose for a weekend in Vegas, or treating the kids (or yourself) to The Wizarding World of Harry Potter in Orlando? Are you looking to expand your business into the United States? If so, this blog is a must-read!
Being barred, removed, or deported from the US is a dreadfully serious matter and is not always something that can be overcome. This is true even if the mistakes that triggered grounds of inadmissibility or removal happened many years ago. In fact, problems can arise even if an individual has entered or lived in the US since the event that made them inadmissible or deportable.
So, what are some common reasons for a non-citizen of the US being found inadmissible to or deportable from the US?
- Aggravated Felonies
A “felony” sounds scary enough, but an “aggravated felony” is absolutely grounds for removal. What is an aggravated felony? Examples include (but are not limited to): murder, rape, drug trafficking, firearms trafficking, money laundering, tax evasion, kidnapping, counterfeiting, prostitution, tax evasion in excess of $10,000 USD, and theft in excess of $10,000 USD. Even some non-violent misdemeanors qualify as aggravated felonies.
If a non-citizen is convicted of an aggravated felony, they could be subject to severe immigration consequences. Immigration lawyers across the country fear the dreaded aggravated felony, and for good reason as conviction can trigger deportation and mandatory detention.
Confusingly, a conviction does not necessarily have to be a felony or aggravated to be considered an aggravated felony for immigration purposes. In total, there are twenty-two aggravated felony categories, including “crimes of violence”, and some types of theft and fraud. After deportation, foreign nationals convicted of an aggravated felony are permanently barred from entry from the US. Finally, an aggravated felony conviction also bars virtually all forms of discretionary relief.
- Crimes Involving Moral Turpitude (CIMT)
Being charged with a CIMT can also lead to immigration consequences. There is no clear-cut rationale as to what constitutes a CIMT; the notoriously nebulous category is generally understood to encompass crimes that are “base, vile and depraved.” However, whether a crime constitutes a CIMT almost always requires careful analysis of the case law. Indeed, crimes as minor as petty theft have qualified in the past.
One CIMT conviction can make you inadmissible to the US. Foreign nationals with criminal records should thus carefully research the nature of their conviction and be ready to apply for a waiver of inadmissibility, if necessary. Foreign nationals may qualify for such a waiver on based on several different factors, including how long ago the crime was committed, whether the non-citizen has any close family who have citizenship or LPR status in the US, and whether these citizens would experience exceptional hardship if the non-citizen were deported or barred from the US.
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- Fraud and Misrepresentation
Fraud usually constitutes a CIMT. In addition, many acts involving fraud and misrepresentation are grounds for deportation on their own, including marriage fraud, falsely representing oneself as a US citizen in order to obtain a government benefit, and forging a document in order to obtain a government benefit. Foreign nationals can frequently get in to trouble with fraud and misrepresentation when they are applying for visas or other immigration benefits at the border or their local consulate, or when filing an application with USCIS.
While an honest mistake on an application or in a consular interview will likely not constitute fraud or misrepresentation for immigration purposes, foreign nationals should nevertheless take extreme care to provide accurate information to all immigration officials, as those convicted may face a lifetime bar from the United States. Foreign nationals who are convicted of fraud may be eligible for a waiver, depending on the family-based factors described above. Unlike the above waivers however, hardship suffered by the children of US non-citizens is not considered in determining whether they are eligible for relief.
- Overstaying Status Validity
Foreign nationals who choose to remain in the United States after their status has lapsed may face difficulty entering the United States in the future, depending on the length of the overstay. Here, it is important to note the difference between overstaying one’s visa and overstaying one’s status. A visa is an entry document that authorizes a foreign national to enter the United States. Status, on the other hand, refers to the set of rights and responsibilities a foreign national possesses while living and working in the US It is possible, even common, for a visa to expire but for an individual to retain legal status within the US Indeed, it is the expiration of status, not visas, that determines potential immigration consequences.
In general, status overstays of less than 180 days will not render offending foreign nationals inadmissible in the future. Overstays longer than 180 days, however, can trigger severe consequences. Non-citizens who overstay their status validity by longer than 180 days but less than one year could be barred from entering the US for three years, while foreign nationals who overstay by more than one year could be inadmissible for ten years. With this in mind, non-citizens who overstay their status validity should be prepared to apply for a waiver. Again, the success of this waiver depends on the family-based extreme hardship model described above, and the suffering of the children of foreign national applicants is not considered.
Everybody gets wanderlust. It is normal for people of all stripes to look for a new adventure across the border, whether it is a vacation or an exciting business opportunity. Life unfortunately happens, however, and it is important that non-citizens be prepared.