Grounds of Inadmissibility: When the U.S. Can Keep You Out

Most people looking to legally reside in the U.S. must show they are not barred by an extensive set of rules called the “grounds of inadmissibility.” The same is true for refugees when they apply for refugee status, when they are “inspected” by Customs and Border Patrol to enter the U.S. as a refugee, and when they apply for lawful permanent residence.

If you are seeking U.S. citizenship or lawful permanent residence, it’s crucial to be aware of the factors that could lead to the denial of your visa or green card. This article provides an in-depth look at the grounds of inadmissibility, who they apply to, and how they can be overcome.

Table of Contents

1. Who Is Subject to the Grounds of Inadmissibility?
2. What are the Grounds of Inadmissibility?
3. Health-Related Grounds of Inadmissibility
4. Criminal-Related Grounds of Inadmissibility
5. Grounds of Inadmissibility for Crimes Involving Moral Turpitude (CIMT)
6. Grounds of Inadmissibility for Drug-Related Crimes
7. Security-Related Grounds of Inadmissibility
8. Public Charge
9. Unlawful Entry and Immigration Violations
10. Documentation Requirements
11. You Have Been Previously Removed
12. Miscellaneous Grounds of Inadmissibility
13. What Happens If You’re Found Inadmissible to the U.S.?
14. We Can Help Your Overcome Certain Grounds of Inadmissibility

Have You Been Found Inadmissible? We Can Help

If you aren’t sure which certain grounds of inadmissibility apply to you, do not guess. The skilled immigration attorneys at Robinson & Henry can evaluate your case to determine the applicable ground and whether there is still a viable path to obtaining your visa or green card. Call 303-688-0944 today to begin your case assessment. If you prefer to speak with us in Spanish, call 720-359-2442. Si gustarÍa hablar con nosotros en español, por favor llámenos al 720-359-2442.

Who is Subject to the Grounds of Inadmissibility?

Everyone who applies for a U.S. visa or green card is vetted to determine whether he or she is inadmissible. However, not everyone is subject to every ground of inadmissibility.

One example is Violence Against Women Act self-petitioners. These applicants are seeking a green card based on a history of abuse by a spouse or parent who is a U.S. citizen. Therefore, they are exempt from such grounds as public charge and unlawful entry.

Asylum-based and refugee applicants are also exempt from such grounds.

Admissibility Applies if You are in the U.S.

“Admissibility” does not distinguish between applicants outside the U.S. and those already in the U.S. applying for a different status, such as permanent residency. The law treats the latter like they’re outside the U.S. asking to be let in. Therefore, they too must be found admissible.

You do Not Have to be a Newcomer

Admissibility remains relevant after your first entry. Even if you already have a green card, your admissibility could still be called into question if:

• you spend at least 180 continuous days outside the U.S.
• you left the U.S. during removal proceedings; or
• you committed a crime.

If any of these circumstances apply to you, U.S. border officials will question you to determine whether you have become inadmissible.

What are the Grounds of Inadmissibility?

There are numerous reasons individuals are deemed to be inadmissible based on 8 U.S.C.S. § 1182. Let’s examine some of them.

Health-Related Grounds of Inadmissibility

The U.S. government is responsible for ensuring that new immigrants do not introduce communicable diseases, physical or mental disorders with associated harmful behavior, or drug abuse problems to the population.

Congress also requires all green card applicants to prove that they have been vaccinated against certain vaccine-preventable diseases.

You might be inadmissible on health-related grounds if you:

• have a communicable disease of public health significance, such as gonorrhea, leprosy, or active tuberculosis,
• do not submit proof of vaccination against mumps, measles, rubella, polio, tetanus and diphtheria toxoids, pertussis, influenza type B, hepatitis B, and any other vaccinations recommended by the Advisory Committee for Immunization Practices,
• have had a physical or mental disorder and a history of behavior associated with the disorder which has posed a threat to the property, safety, or welfare of yourself or others and which behavior is likely to recur or to lead to other harmful behavior, or
• are a drug addict.

Criminal-Related Grounds of Inadmissibility

A variety of crimes can render you inadmissible to the U.S.

Crimes Involving Moral Turpitude (CIMT)

Moral turpitude refers to conduct that is morally reprehensible and intrinsically wrong, the essence of which has evil or malicious intent. Board of Immigration Appeals, January 8, 1980

This generally includes any offense involving fraud, deceit, or is inherently “base, vile or depraved.”

U.S. immigration law does not provide a clear consensus on the exact meaning of “crimes involving moral turpitude.” However, some documented examples include:

• murder
• arson
• rape
• robbery
• theft
• fraud

How Immigration Courts Determine Moral Turpitude

Immigration courts use a method known as the categorical approach to determine whether a crime involves moral turpitude. In Tenth Circuit courts, this involves something called the realistic probability test.

The first step of the categorical approach is comparing the “generic” definition of the removal ground to the elements of the criminal statute. Every criminal law term that appears in the removal grounds has a technical federal definition. This is referred to as the “generic” definition or the “generically defined offense.”

The Board of Immigration Appeals, or BIA, will compare this generic definition to the elements of the statute under which you were convicted. In doing this, they identify the minimum possible conduct that has a realistic probability of being prosecuted under the criminal statute. That conduct is then compared to the generic definition.

Categorical Match

The definition of the state offense may be narrower than the definition of the removal ground. This means that there is no way to commit the offense without also triggering the removal ground. This is called a categorical match. A categorical match means the appeal is lost.

However, if the state offense covers a broader range of conduct than the generic definition, the offense is considered “overbroad” compared to that removal ground. There is no categorical match.

Modified Categorical Approach

If a statute of conviction is not categorically a crime involving moral turpitude, the next step is to determine whether the statute is divisible. If the statute is divisible, courts will use the modified categorical approach.

A statute is divisible when:

1. it sets out multiple distinct offenses, as opposed to only one.
2. at least one of those offenses is a categorical match to the relevant generic standard.

If a statute is overbroad and indivisible, the immigrant wins.

A Colorado Court Case

Carmelo Alcala-Ramirez, a Mexican native and citizen, was convicted in February 2015 of reckless vehicular assault — a class 5 felony in Colorado.

The next year, Alcala-Ramirez applied for voluntary departure under 8 U.S.C.S. § 1229c. If granted, this would permit him to voluntarily leave the U.S. at his own expense, in lieu of removal.

However, an immigration judge determined that the class 5 felony constituted a crime of moral turpitude. Therefore, Alcala-Ramirez’s request was denied.

Alcala-Ramirez’s Argument at Appeal

On appeal, Alcala-Ramirez claimed that Colo. Revised Statute § 18-3-205(1)(a), under which he had been convicted, is indivisible because the Colorado courts have found that subsections (l)(a) and (l)(b) “set forth two alternative ways of committing the singular crime of vehicular assault.”

Specifically, Alcala-Ramirez argued, Colorado courts had previously held that an individual cannot be convicted of vehicular assault under both subsections of the statute. In situations when an individual has been convicted under both subsections, the Colorado courts have vacated one of those convictions.

The Outcome

The Board of Immigration Appeals held that C.R.S. § 18-3-205(1)(a) was in fact a divisible statute. Further, to involve moral turpitude, a crime requires two elements:

1. a culpable mental state, and
2. reprehensible conduct

Alcala-Ramirez’s appeal was denied:

Recklessness under Colorado law therefore may satisfy the culpable mental state requirement in determining whether a crime is a CIMT. … We further find that operating or driving a motor vehicle in a reckless manner, where such conduct is the proximate cause of serious bodily injury to another satisfies the “reprehensible conduct” requirement for purposes of determining whether a crime is a CIMT.
2016 Immig. Rptr. LEXIS 9405

Drug-Related Crimes

This includes a violation of — or a conspiracy or attempt to violate — any drug law. It doesn’t matter if it’s a U.S. drug law or a foreign one.

Drug Trafficking

If any immigration officer knows or “has reason to believe” that you have been involved in trafficking drugs, this will be grounds for inadmissibility.

Additionally, if your parent or spouse has been involved in drug trafficking, you also could be declared inadmissible if:

• you have received any financial or other benefit from their illicit activities within the last five years, and
• you knew, or reasonably should have known, where the money or benefit came from.

Prostitution

This applies to anyone who has engaged in prostitution within the last 10 years. It also applies if you helped procure sex workers or received the proceeds of prostitution.

Human Trafficking

Any person who has committed or conspired to commit human trafficking offenses in the U.S. or outside the U.S. is inadmissible. This ground of inadmissibility still applies even if immigration officials believe that the person being trafficked has knowingly participated.

Money Laundering

This is applicable if you are known or suspected to have engaged, are currently engaging, or are seeking to enter the U.S. to engage in money laundering.

Conviction of Two or More Offenses

If you have committed two or more crimes that resulted in your spending a total of five years or more in prison, you could be found inadmissible to the U.S.

Security-Related Grounds of Inadmissibility

Immigration officials may find a foreign national inadmissible on the grounds of national security if the applicant is involved with certain activities or organizations that may be illegal or against the general principles of American democracy.

Foreign nationals inadmissible under the national security grounds are divided into five categories:

1. people seeking to enter the U.S. to engage in prejudicial and unlawful activities, including espionage, sabotage, “any unlawful activity,” or the violation or evasion of “any law prohibiting the export from the United States of goods, technology or sensitive information”
2. people “engaging in “terrorist activities”
3. people whose admission into the U.S. would bring about serious foreign policy consequences
4. members of the Communist Party, or any other totalitarian party
5. participants in Nazi persecution or genocide

Public Charge

The U.S. government defines a public charge as a person who is “primarily dependent on the government for subsistence.”

To overcome this ground, virtually all family-based immigrants must have a valid Form I-864, Affidavit of Support. Even you are already lined up for a well-paying job, your petitioner (I-130 or I-129F filer) must prepare an I-864 affidavit for you to submit as a part of your adjustment of status application.

Unlawful Entry and Immigration Violations

Generally, anyone who enters the U.S. without permission is inadmissible.

These grounds of inadmissibility also apply to several other immigration violations. Examples include:

• failing to attend removal proceedings
• fraud or misrepresentation with immigration officials
• false claims of U.S. citizenship
• human smuggling

Documentation Requirements

Unsurprisingly, any foreign national without a valid visa or entry document may be found inadmissible.

If you seek to enter the U.S. and remain here permanently, but you do not have the proper documents to prove that you are authorized to do so, you will be found inadmissible.

If You Have Been Previously Removed

You are generally inadmissible to the U.S. once you have been deported. These grounds of inadmissibility fall into one of three categories:

• Arriving Aliens: You are inadmissible for five years after your first deportation. You will remain inadmissible for 20 years after a second or subsequent deportation.
• Unlawfully Present: If you have been unlawfully present in the U.S. for more than 180 days but less than one year, you will be inadmissible for three years. If your unlawful presence lasts more than a year, you will be inadmissible for 10 years. (Several exceptions and waivers are available.)
• Unlawfully Present after Previous Immigration Violations: Let’s say you have been unlawfully living in the U.S. for an aggregate period of more than one year. Or maybe you have been ordered removed from the U.S. If you then enter or attempt to enter the U.S. without being admitted, you are inadmissible for life.

Miscellaneous Grounds of Inadmissibility

There are several miscellaneous grounds of inadmissibility that do not fall into any of the above categories. Some examples are:

• You are a practicing polygamist.
• You have taken a U.S. citizen child to a foreign country.
• You are a former U.S. citizen who renounced your citizenship to avoid paying taxes.

What Happens if You’re Found Inadmissible to the U.S.?

The various agencies handling your immigration-related applications may decide you are inadmissible any time you ask for permission to enter or remain in the United States.

These agencies include the U.S. State Department and the Department of Homeland Security, through its sub-agencies Customs and Border Protection (CBP) and U.S. Citizenship and Immigration Services (USCIS).

These agencies can use your inadmissibility to block you any time you:

• try to cross the border
• apply for a green card
• apply for any other type of visa or immigration status.

If you are at a U.S. border when this occurs, you could be immediately turned around and sent home, or you could be sent to immigration court for removal from the U.S.

If you’re in the U.S., you also might be put into removal proceedings.

We Can Help Your Overcome Certain Grounds of Inadmissibility

This is not an exhaustive list of the grounds of inadmissibility that could derail your shot at legal U.S. residence. That’s why it’s important to consult an experienced immigration attorney before filing any adjustment of status. At Robinson & Henry, we can evaluate your case to see which factors could render you inadmissible and determine your eligibility for an immigration waiver. Let us be your tireless advocates on your path to new opportunities. Call 303-688-0944 today to begin your case assessment. Si gustarÍa hablar con nosotros en español, por favor llámenos al 720-359-2442.