If you, a friend, or a loved one is subject to deportation, it can be a very complicated process. Facing the possibility of being deported or removed from the United States is a frightening thought. It is exile, exclusion and banishment, and perhaps the most harshest form of punishment. In fact, since 1996, Immigration Court proceedings and hearings have become radically different since the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA). In addition to many other sweeping changes to the law as a result of IIRAIRA, for matters commenced in an Immigration Court on or after April 1, 1997, there is now one “removal” proceeding, rather than separate hearings to determine “exclusion” and “deportation.”
As a result of new laws since 1997, a foreign person’s status in the United States (that is, whether they are seeking admission into the United States or already being physically present here) is impacted by various grounds of inadmissibility and/or grounds of deportation.
Grounds of Inadmissibility
Grounds of inadmissibility may apply to someone who is seeking admission into, or certain immigration benefits from, the United States. This means, for example, when someone is seeking admission to enter the U.S. at an airport or other port of entry; when someone is applying for a nonimmigrant temporary visa at a U.S. consulate overseas; when applying for an immigrant visa in order to enter U.S. as a permanent resident; as well as when someone is inside the U.S. and is applying for a green card through the process known as Adjustment of Status. There are other examples of how the grounds of inadmissibility apply. These are some of the most significant grounds of inadmissibility:
- Criminal Grounds for foreign nationals who have been convicted of (or admitted having committed): Crimes Involving Moral Turpitude (CIMTs); Drug Offenses; Money Laundering; two or more offenses; prostitution; and human trafficking offenses.
- Violations of Immigration Laws. There are several different types of immigration violations. The most well known is Unlawful Presence, which can occur when a person overstays a period of admission granted to them by CBP upon their entry into the U.S. as typically shown in either a stamp in their passport, or in an I-94 Departure Record (which today is a paperless, digital document). Overstaying a nonimmigrant visa also causes the visa stamp to be automatically voided under the law. Yet, perhaps the most serious consequence (among others) is when a person overstays and continues to remain in the United States for 180 days or longer and then voluntarily departs. They then become subject to detention by ICE, and being barred from future entry into the U.S. For overstays which occurred on or after April 1, 1997, a person unlawfully present for more than 180 days but less than one year who then voluntarily departs is barred from returning to the U.S. for 3 years. (Note there are exceptions to this rule if deportation proceedings have started before the person leaves the U.S.) For overstays where a person is unlawfully present for 1 year or more and then voluntarily departs, they are barred from returning to the U.S. for 10 years. These two bars, known as the 3 & 10 Year Bars of Inadmissibility, can be waived in limited circumstances. Other foreign nationals outside of the U.S. may be inadmissible because of other immigration violations such as having previously been deported, excluded or removed from the country, as well as because of previously making misrepresentations or engaging in fraud in order to enter the U.S. with fake or falsely obtained immigration documents.
- Security and Related Grounds of Inadmissibility which include but is not limited to acts which the government knows or has reason to believe that a person is desiring to enter the U.S. to engage in acts of terrorism, espionage; or violations of exporting restricted goods or technologies.
- Health-Related Grounds, such as: a communicable disease of public health significance. While several known illnesses such as tuberculosis exist as grounds of inadmissibility, some such as HIV are no longer inadmissible illnesses (as established by the Health and Human Services guidelines). Other grounds that are common are for persons who seek a visa and have failed to document their vaccinations. Persons with past or present physical or mental disorders with associated behavior that shows signs of harmful behavior are other grounds of inadmissibility. Drug and alcohol addictions may also fall under as a health-related ground.
- Non-citizens Likely to Become a Public Charge. This is incurred in instances when a person has received assistance from the government determined by factors such as age, health, family status, assets, financial status, education, and skills.
Grounds of Deportation
Grounds of deportation are similar to the grounds of inadmissibility. But they apply to non-citizens who are presently within the United States either legally or illegally. Some common grounds of deportation that may apply are:
- Criminal Grounds, such as Crimes Involving Moral Turpitude (CIMTs), Multiple Criminal Convictions, and other specific crimes. Each crime, depending on in which state or jurisdiction it has occurred can be interpreted differently from one state to the next. For example, each state within the U.S. may define and charge the crimes of burglary, simple marijuana possession, or a domestic violence incident differently.
- High Speed Flight from an Immigration Checkpoint.
- Security Grounds, such as activities involving terrorism, espionage, sabotage, acts which violate public safety or national security.
- False Claims to U.S. Citizenship or Unlawful Voting in U.S. Elections. If a non-citizen has voted in any federal, state, or local election, they may be deportable (even if they have not been convicted). As well, if a non-citizen falsely represents himself or herself as a U.S. citizen “for any purpose or benefit under any federal or state law” then they may be deportable.
- Non-citizens likely to become a Public Charge by being primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at government expense. Certain medicaid and other assistance programs do not implicate someone.