Deportability Overview

Any noncitizen who has been admitted to the United States is subject to removal (deportation) if he or she falls within one or more of the classes of deportable aliens contained in the Immigration and Nationality Act. As a preliminary matter, the laws pertaining to deportability apply only to “aliens,” a term which is defined as any person who is not a citizen or national of the United States. In removal proceedings, DHS bears the burden of proving an individual is not a citizen or national of the United States.

Like the grounds of inadmissibility, the Immigration and Nationality Act contains numerous grounds of deportability:

Immigration status violators. This broad ground pertains to noncitizens the government determines to:

  • have been inadmissible at time of entry. For example, a noncitizen who is admitted to the United States on a visa, but is later determined to have not been eligible for the visa when it was issued.
  • be present in the U.S. in violation of the Immigration and Nationality Act or any other law of the United States. This ground is often used in cases involving visa overstays.
  • have committed status violations or to have had his or her status terminated. A common example of this ground is a situation where a noncitizen on an employment visa for one company engages in employment with another company without obtaining a visa to do so. Noncitizens granted conditional residence through marriage to a U.S. citizen or through an EB-5 investment program who fail to have the conditions on his or her residence removed are also subject to deportability under this ground. Also covered by this ground are noncitizens found to have engaged in marriage fraud. Limited waivers of this ground are available to certain sons, daughters, spouses and parent of U.S. citizens and green card holders, as well as certain battered spouses.
  • have been involved in alien smuggling.

Criminal grounds. Once of the most common grounds of deportability involves noncitizens, including green card holders, who have engaged in criminal activity. The immigration law is federal and necessarily must address criminal activity both at a federal and state level. For practical reasons, rather than directly incorporating the criminal codes of the 50 states into the Immigration and Nationality Act, Congress chose to classify crimes into general categories. Thus, a noncitizen convicted of a state crime will be deemed deportable if that crime falls within one of the categories delineated in the Immigration and Nationality Act. These categories are:

  • Crimes involving moral turpitude

This ground applies to a noncitizen who (i) is convicted of a crime involving moral turpitude carrying a potential sentence of one year or more imprisonment committed within five years (or ten years in the case of a noncitizen who obtained lawful permanent residence through a witness program) after the date of admission or (ii) is convicted of two or more crimes involving moral turpitude at any time regardless of the length of imprisonment.

The concept of the “crime involving moral turpitude” (often referred to as a “CIMT”) dates back more than a century and varies greatly depending on the laws jurisdiction in which the criminal case arose. While a careful case by case analysis is essential in determining whether or not a noncitizen is properly charged with a CIMT, a non-exhaustive list of crimes that fall within this category include fraud, theft, blackmail, arson, embezzlement, burglary, extortion, forgery, larceny, and counterfeiting. The crimes of assault and manslaughter may also be considered CIMTs depending on the statute of the jurisdiction under which the case arose.

  • Aggravated felonies

Perhaps the most serious charge a noncitizen can face under the immigration laws is having been convicted of an “aggravated felony.” A noncitizen found to have been convicted of such a crime will generally be barred from seeking cancellation of removal, naturalization, asylum and voluntary departure. In most cases such a noncitizen will be subject to mandatory detention without possibility of bond.

There are currently 20 classes of crimes deemed to be aggravated felonies:

  1. murder, rape, and sexual abuse of a minor
  1. illicit trafficking in a controlled substance
  1. illicit trafficking in firearms or destructive devices or in explosive devices
  1. certain offenses relating to laundering of monetary instruments or engaging in monetary transactions in property derived from specific unlawful activity if the amount of the funds exceeded $10,000
  1. certain offenses relating to explosive materials and firearms
  1. crimes of violence for which the term of imprisonment is at least one year
  1. theft offenses, including receipt of stolen property, or burglary offense for which the term of imprisonment is at least one year
  1. certain offenses relating to the demand for or receipt of ransom
  1. certain offenses relating to child pornography
  1. certain offenses relating to RICO, or certain gambling offenses, for which a sentence of one year imprisonment or more may be imposed
  1. offenses relating to the owning, controlling, managing, or supervising of a prostitution business, certain offenses relating to transportation for the purpose of prostitution, or certain offenses relating to peonage, slavery, and involuntary servitude
  1. certain offenses relating to gathering or transmitting national defense information or disclosure of classified information, sabotage, or treason
  1. offenses involving fraud or deceit in which the loss to the victim or victims exceeds $10,000 or certain offenses relating to tax evasion where the revenue loss to the government exceeds $10,000
  1. certain offenses relating to alien smuggling (an exception exists in the case of a first offense for which the noncitizen can affirmatively show that he or she committed the offense for the purpose of assisting, abetting, or aiding only the alien’s spouse, child, or parent)
  1. certain improper entry or illegal reentry offenses committed by an alien who was previously deported on the basis of an aggravated-felony conviction
  1. offenses of falsely making, forging, counterfeiting, mutilating, or altering a passport or instrument or certain other offenses relating to document fraud for which the term of imprisonment is at least 12 months (an exception exists in the case of a first offense for which the noncitizen can affirmatively show that he or she committed the offense for the purpose of assisting, abetting, or aiding only the alien’s spouse, child, or parent)
  1. offenses relating to the failure to appear by a defendant for service of sentence if the underlying offense is punishable by imprisonment for a term of five years or more (often referred to as “bail jumping” offenses)
  1. commercial bribery, counterfeiting, forgery, or trafficking in vehicles the identification numbers of which have been altered for which the term of imprisonment is at least one year
  1. obstruction of justice, perjury or subornation of perjury, or bribery of a witness for which the term of imprisonment is at least one year
  1. offenses relating to failure to appear before a court pursuant to a court order to answer to, or dispose of, a charge of a felony for which a sentence of two years’ imprisonment or more may be imposed (also related to “bail jumping”)

In addition, an attempt or conspiracy to commit any of the above offenses will be deemed to be an aggravated felony.

While some convictions, particularly federal convictions, will clearly fit within one of the 20 categories of offenses listed above, such a determination is not always clear in cases involving state offenses. Further, the record of conviction issued by the criminal court will not always clearly support an aggravated felony finding, for example a fraud convictions where the amount of loss to the victim is not clearly set forth.

Congress greatly expanded the definition of aggravated felony through legislation passed in the mid-1990s. The Supreme Court of the United States has ruled that in certain cases involving convictions from prior to this legislation the government cannot apply the aggravated felony provisions of the law retroactively. Further, the so-called 212(c) waiver, which Congress eliminated in 1996, may still be available to noncitizens charged with deportability under the aggravated felony provisions of the law based on a pre-1996 conviction.

Given the grave consequences to a noncitizen found to have been convicted of an aggravated felony, it is imperative to carefully review the record of conviction and other documents related to the criminal case to ascertain whether a challenge to the government’s aggravated felony charge exists and whether the noncitizen remains eligible for a 212(c) waiver.

  • High-speed flight

A noncitizen convicted of a violation of the federal law relating to high speed flight from an immigration checkpoint is deportable.

  • Controlled substance-related offenses

A noncitizen who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any federal, state or foreign law or regulation relating to a controlled substance, other than a single offense involving possession of 30 grams or less of marijuana for personal use, is deportable. This provision of the law applies to virtually all drug offenses, including possession of small amounts of cocaine, crystal meth, heroin, and other “recreational drugs”.

The law also renders any noncitizen who at any time after admission is deemed to be a drug abuser and addict.

  • Firearms violations

A noncitizen who at any time after admission is convicted under any state or federal law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying a firearm or destructive device, or of attempting or conspiring to do the same, is deportable.

  • Crimes involving domestic violence, stalking, child abuse, child neglect, child abandonment and protection order violations

The term “crime of domestic violence” is defined as “any crime of violence against a person committed by a current or former spouse of the person, by an individual with whom the person shares a child in common, by an individual who is cohabiting with or has cohabited with the person as a spouse, by an individual similarly situated to a spouse of the person under the domestic or family violence laws of the jurisdiction where the offense occurs, or by any other individual against a person who is protected from that individual’s acts under the domestic or family violence laws of the United States or any State, Indian tribal government, or unit of local government.” This broadly written statute thus covers a wide range of federal and state offenses.

With regard to orders of protection, any noncitizen found by a court to have violated an order of protection insofar as it covers credible threats of violence, repeated harassment, or bodily injury to the subject(s) for whom the protection order was issued is deportable. “Protection order” encompasses any “any injunction issued for the purpose of preventing violent or threatening acts of domestic violence, including temporary or final orders issued by civil or criminal courts (other than support or child custody orders or provisions) whether obtained by filing an independent action or as a pendente lite order in another proceeding.”

Many removal cases under this statute stem serious incidents of violence. However, in other cases, particularly those arising in jurisdictions with overburdened family and criminal court systems where the pressure to dispose of cases with guilty pleas is high, a noncitizen may unwittingly face deportability charges bases on a hasty guilty plea.

For example, in a recent case, Jones Fletcher represented a longtime green card holder facing a domestic violence deportability charge that stemmed from a 911 call made in the midst of a heated verbal argument with his wife several years before. While there was no violence involved in the incident, the case occurred in a mandatory arrest state. The noncitizen was arrested by local police and at the advice of a court appointed attorney entered a hasty guilty plea to a domestic violence related misdemeanor. Despite the fact the noncitizen received no jail time and remained married to his wife of over 20 years, DHS initiated removal proceedings against him six years after the incident.

  • Failure to register as a sex offender

A noncitizen who fails to comply with the federal law related to mandatory registration of sex offenders is subject to deportation.

Failure to rgister and falsification of documents. This often overlooked, but potentially devastating deportability charge applies to noncitizens that violate one of several federal statutes relating to the registration and falsification of immigration-related documents, failure to file a change of address as per the requirements of the Immigration and Nationality Act, or make a false claim to U.S. citizenship.

Security and related grounds. Similar to the ground of inadmissibility discussed in the Jones Fletcher inadmissibility overview, this ground covers noncitizens who are alleged to have engaged in espionage, sabotage, prohibited transfers, threatening activities, activities having serious foreign policy consequences, terrorist activities, assisting in Nazi persecution or engaging in genocide, and engaging in the recruitment or use of child soldiers. In our experience, this ground is commonly asserted against individuals alleged to have participated in civil wars as part of a group the U.S. government subsequently designated as a terrorist organization.

Public-charge grounds. While rarely used, the Immigration and Nationality Act deems any noncitizen that becomes a “public charge” (a term of art limited to accepting specified forms of public assistance) within five years of his or her admission is deportable. However, if the noncitizen is able to affirmatively show that the circumstances that necessitated accepting public assistance arose after his or her admission, this ground does not apply.

Unlawful voting. A noncitizen unlawfully votes in any federal, state, or local election is deportable. There are limited exceptions to this ground of deportability for certain noncitizens who are the children of U.S. citizens.