Inadmissible vs. Deportable: Not the Same

 Posted on July 22,2015 in Immigration

When an illegal immigrant has been charged with a crime and is found guilty, he or she may be referred to as being found inadmissible or deportable. However, inadmissibility and deportability are not the same. Each refers to a different legal status, and confusing the two is not advisable. Both must be dealt with differently in terms of arguing against removability.

Definitions

Inadmissibility deals with the rules surrounding those who want to enter the United States, in either an immigrant or non-immigrant capacity. Deportability is the power of United States Citizenship and Immigration Services (USCIS) to keep someone from staying in the United States. There are several different reasons why one may be rendered inadmissible; however, most of the reasons why someone may be rendered deportable have to deal with criminal acts.

U.S. immigration law recognizes two different categories of crime that can affect one’s immigration status. The first is aggravated felonies (AFs), which are defined primarily in 8 USC §1101. AFs are crimes which involve particularly serious offenses against morality, such as murder, sexual assault and kidnapping. However, the difficulty is that some crimes which are not felonies under criminal law are still considered AFs for immigration purposes. Hence, this can lead to significant confusion. Examples include bribery, obstruction of justice, and failing to appear in court (if the underlying offense carries a penalty of more than one year).

The second category of crime is crimes involving moral turpitude (CIMTs), which actually have no specific definition in U.S. law, but involve at least one element that constitutes moral turpitude: fraud, larceny, and/or intent to harm. If someone commits a CIMT within 5 years of admission into the country, or commits two CIMTs within a single ‘scheme’ or enterprise—for example, kidnapping and transporting a minor across state lines are two CIMTs that make up a single endeavor—he or she is eligible to be removed. Crimes of moral turpitude may also be aggravated felonies, and aggravated felonies may be CIMTs, but the two categories do not have to overlap.

Confusing Consequences

Being convicted of an aggravated felony will almost always render someone deportable, meaning that he or she can be expelled from the country. However, not all aggravated felonies will render someone inadmissible. Because the rules regarding CIMTs and AFs are somewhat convoluted, it is possible for a crime to render someone both inadmissible and deportable. It may simply confer inadmissibility or deportability, but it is possible to be judged both.

Also, there are several exceptions to both sets of rules. For example, a ‘petty offense exception’ exists which can render a CIMT conviction not usable for deportation purposes. This comes from immigration case law, notably Matter of Mendoza, decided in 1965, and it states that a conviction for one CIMT may be set aside if certain requirements are met. They are:

• If the offense’s maximum penalty was no more than one year; and

• If the person was sentenced to no more than six months’ time.

If you can prove these two criteria via documentation, you may be able to have a CIMT conviction set aside—but only once, and only for one CIMT; if you have committed more than one in a scheme, you may not have your record expunged.

Seek Experienced Professional Assistance

If you have been convicted of a crime, regardless of whether it makes you deportable or inadmissible, you may need to seek assistance. The skilled Chicago-area deportation attorneys at Mevorah & Giglio Law Offices have years of experience with these matters. We are happy to put it to work for you. Contact us today.