Criminal Issues and Grounds of Inadmissibility
We are often asked by our clients what the difference is between being inadmissible and deportable. Someone who is inthis country, under certain circumstances can be asked to leave, and that is deportation. Someone who is outside this country trying to enter could be inadmissible (previously called excludable). This means that if you have a Green Card, each time you re-enter the country you are seeking admission. If you have a criminal record, it could prevent you from entering. If that is the case with you, visit or call us immediately, especially if you intend to travel. The same rule applies to people who are Entering Without Inspection (EWI); these people are subject to all of the laws of admissibility. Entering Without Inspection, or being an EWI means that you entered the United States illegally).
This area of the law can be quite complex. For example, if you left America but did not enter a new country, you are not seeking readmission (let's say you rented a boat and left the continent but only went fishing). Another example is a person who leaves America but for some reason is not admitted to Canada, that person has not left the United States and therefore does not seek readmission, avoiding the triggers of a person seeking readmission.
There are many grounds of inadmissibility (Inadmissibility means that you cannot enter the country whereas deportation is where you entered and they are aksing you to leave) and these are the ones we are called about the most.
Immigration Grounds of Inadmissibility
- Health related grounds (mental retardation was removed as a ground in 1990) and AIDS was removed in 2008, as well as grounds based on:
- Physical and mental disorders
- Drug abusers and addicts (note: single use of Marijuana or amphetamines does not count, you don't have to be an addict to be disqualified here). These persons do not have immigration waivers or immigration appeals available if this section applies to them
- Someone likely to become a public charge (this is why Affidavits of Support are important)
- People who have committed a crime of Moral Turpitude [again here the definition of what 'is not' a crime of moral turpitude is easier that 'what is'; call us as soon as you have been charged]. (unless it is for a petty offense [maximum penalty is one year in prison AND you were not sentenced to more than 6 months]). The petty offense exception does not apply if you committed more than one offense or if it applies to a drug-related case. This is the first of the criminal grounds of inadmissibility listed here.
- Drug-related offences. If they believe or know that you are a trafficker in any controlled substance or has reason to believe you are or were as assister, abettor, conspirator or colluder in trafficking. A conviction is only necessary if they use the "reason to believe" part of the statute. Also, if you are the spouse, son or daughter of someone inadmissible for trafficking, you too are inadmissible if in the last 5 years you had any financial or 'other' benefit from the trafficking and knew or reasonably should have known the benefit was due to the activity.
Immigration waivers and immigration appeals are available under certain circumstances for over 30 grams of marijuana. Foreign convictions require mental intent but American ones do not.
- Two or More Offenses. However convicted, if the aggregate conviction is for 5 years or more of confinement, even if suspended, brings you into this section.
- Persons ordered Removed. If you have been deported or leave while deportation is pending, you face 10 years away unless you have permission to re-enter sooner from the AG (Attorney General). The case you file is a 212 immigration waiver (please do not simply fill out the form without a legal brief. This is the legal equivalent of open-heart surgery and should not be attempted as a do-it-yourself exercise)
- People who have overstayed by 6 months or 1 year; they are subject to 3 and 10-year bars, respectively (this law took effect April 1st of 1997). This section kicks in, by the way, once you leave the country
- If you are granted Voluntary Departure and do not leave, you will be in a state of unlawful presence as of the date the Voluntary Departure expires and you add on any unlawful presence you had before the Voluntary Departure. However, if you are granted Voluntary Departure after proceedings began, you will not be subject to the 3-year bar, but will be subject to the 10-year bar.