Inadmissibility

Statutes:

INA §§ 212, 213A 8 USCS § 1182, 1183a

Regulations: 8 C.F.R. § 212 22 C.F.R. §§ 40.1-40.301 INS Operations Instructions, FAM, etc. OI § 212, 9 FAM §§ 40.31-40.35; 40.61, 40.62

• I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal;
• I-601, Application for Waiver of Ground of Excludability;

An alien seeking to enter the United States must generally be eligible for a particular immigrant or nonimmigrant visa classification and must not be inadmissable under any of the grounds listed in INA §Section 212(a), 8 U.S.C. §1182(a). The statute sets forth numerous grounds for inadmissability, several of which relate to criminal activity.

Aliens who are convicted of certain crimes or admit to having committed acts which constitute the essential elements of such crimes are inadmissable. A determination as to whether an alien is inadmissible must be made during each of the following immigration procedures:

1. application for a visa at a United States Consulate; 2. application for admission to the United States upon arrival at the port of entry; 3. administrative removal proceedings to determine whether alien should be removed premised on allegations that alien was actually inadmissible at the time of admission or adjustment of status to that of a lawful permanent resident; 4. inspection by immigration officer; 5. application by alien in the United States seeking adjustment to lawful permanent resident status 6. reentry into the United States by returning lawful permanent resident; 7. application for naturalization by lawful permanent resident required to show that original admission was lawful.

Crimes Involving Moral Turpitude

An alien who has been convicted of a crime involving moral turpitude or admits to having committed the crime or essential elements of the crime is inadmissable unless the crime was a purely political offense. INA §212(a)(2)(A)(I)(I); 8 U.S.C. §1182(a)(2)(A)(I)(I).

Conviction for a single offense of a crime involving moral turpitude will not make an alien inadmissable if the crime was committed when the alien was under eighteen years old and five years have passed since the alien was convicted or the alien's imposed confinement, if any, was completed. INA §212(a)(2)(A)(ii)(I), 8 U.S.C. §1182(a)(2)(A)(ii)(I).

Similarly, a single offense will not serve as the basis for inadmissability if the maximum penalty possible for the crime does not exceed one year and the alien is not sentenced to imprisonment for more than six months. INA §212(a)(2)(A)(ii)(II), 8 USC §1182(a)(2)(A)(ii)(II).

Multiple Criminal Convictions

An alien who has been convicted of two or more offenses, other than purely political offenses, regardless of whether the offenses included moral turpitude, is inadmissable if the aggregate sentences to confinement actually imposed were five years or more. INA §212(a)(2)(B), 8 U.S.C. §1182(a)(2)(B). The final sentence imposed is critical because the actual time served in confinement is not relevant under this section. Fonseca-Leite v. INS, 961 F2d 60 (5th Cir. 1992).

Under INA § 212(a)(10) [former 8 USCS § 1182(a)(10)], the actual time spent in confinement is irrelevant, and where the alien was sentenced to two consecutive 3-year periods of confinement, 6 years was the aggregate sentences to confinement actually opposed, and the fact that a portion of the 6 years was suspended, did not change the essential and basic fact that the alien was subjected to a prison sentence in excess of 5 years on his two offenses, in spite of the fact that he was actually confined for just over two years. Fonseca-Leite v INS (1992, CA5) 961 F2d 60.

Followed by In re Esposito, 1995 BIA LEXIS 5, 21 I. & N. Dec. 1, 14 Immigr. Cas. Rep. B1-45, I. & N. Dec. Interim No. 3243, Int. Dec. No. 3243 (B.I.A. 1995) For purposes of section 212(a)(10) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(10) (1988), and its successor provision at section 212(a)(2)(B) of the Act, 8 U.S.C. § 1182(a)(2)(B) (Supp. V 1993), a sentence is "actually imposed" where a criminal court suspends the execution of a sentence, but no sentence is "actually imposed" where the imposition of sentence is suspended. Matter of Castro, 19 I&N Dec. 692 (1988), followed.

Matter of Castro, 19 I&N Dec. 692 (BIA 1988), the BIA found that when a court imposes a sentence but suspends execution of that sentence, the sentence is "actually imposed" for purposes of section 212(a)(9) of the Act even though probation may also be granted.

Former section 212(a)(9) of the Act was revised and redesignated as sections 212(a)(2)(A)(i)(I) and (II) of the Act. The phrases "sentence actually imposed" in section 212(a)(9) and "sentences to confinement actually imposed" in section 212(a)(10) appeared in the Act, at the same time, in successive paragraphs, and relate to the same object and subject matter. No substantive change was made in revising and redesignating section 212(a)(10) as section 212(a)(2)(B). Castro is equally applicable to section 212(a)(2)(B).

The Board of Immigration Appeals has held that concurrent sentences are not aggregate sentences. In re Fernandez, 14 I&N Dec. 24 (BIA 1972).

Alien who was convicted on two counts of transporting forged securities and was sentenced to concurrent 3-year term of imprisonment on each count, although excludable under former 8 USCS § 1182(a)(9), was not excludable under former 8 USCS § 1182(a)(10) authorizing exclusion of alien convicted of 2 or more offenses for which aggregate sentences to confinement actually imposed were 5 years or more, since aggregate sentence actually imposed, for purposes of § 1182(a)(10), was three years. In re Fernandez (1972, BIA) 14 I & N Dec 24.