In general, aliens who have been convicted of or admitted serious crimes are inadmissible. Such crimes are categorized as: involving moral turpitude, involving controlled substances, prostitution and commercialized vice, and controled substance traffickers. The Attorney General has discretion to waive many grounds for inadmissibility for aliens who have been convicted of crimes or admitted to committing crimes.
Aliens who have been convicted of crimes involving: moral turpitude, drug offenses, controled substance trafficking, prostitution ans commercialized vice, trafficking in persons, and money laundering are inadmissible. It is helpful to start with the general rule, 8 U.S.C. § 1182(a)(2) because whether an exception or waiver is available depends on which category of offense an individual committed. After identifying which of these categories the crime falls under, it is a good idea to see more specific rules for information about exceptions and waivers that may be applicable. This guide only discusses the crimes that are most likely to affect trafficking clinic victims including: Moral Turpitude, Controled Substance Offenses, and Prostitution and Commercialized Vice.
3B Am. Jur. 2d Aliens and Citizens
Extreme Hardship Suspending Deoprtation of Alien, 35 Am. Jur. Proof of Facts 2d 459.
3B Am. Jur. 2d Aliens and Citizens § 1507. Procedural.
Corp. Jur. 2d "Aliens"
40 A.L.R. Fed. 2d 27 (Originally published in 2009) "Validity, Construction, and Application of § 237(a)(2)(E) of Immigration and Nationality Act (8 U.S.C.A. § 1227(a)(2)(E)), Providing for Removal of Alien for Domestic Violence, Stalking, Child Abuse, Neglect or Abandonment, or Violation of Protection Order," James Lockhart, J.D.
87 A.L.R. Fed. 646 (Originally published in 1988) "Construction of § 243(h)(2)(b) of Immigration and Nationality Act of 1952 (8 U.S.C.A. § 1253(h)(2)(b)), disqualifying from prohibition of deportation those aliens who, convicted of particularly serious crime, constitute danger to community," Gregory G. Sarno, J.D.
8 U.S.C. §1182(d) a waiver of inadmissibility may be granted for victims of severe trafficking in persons, if it is in the national interest, and if the inadmissibility was caused by or incident to the trafficking, except for inadmissibility due to security related grounds, international child abduction, or former citizens who renounced citizenship to avoid taxes. Cross reference 8 U.S.C. § 1101(a)(15)(T) for criteria to identify victims of human trafficking.
Also, under 8 U.S.C. § 1182(d) any grounds of inadmissibility, except participation in Nazi persecutions or genocide, may be waived if the alien is a non-immigrant witness with information about a crime or terrorism. Cross reference 8 U.S.C. § 1101(a)(15)(U) and 8 U.S.C. § 1101(a)(15)(S) for criteria to identify qualifying victims of crimes or witnesses.
Waivers may be granted under 8 U.S.C. § 1182(h) for aliens who are inadmissible under 8 U.S.C. § 1182(a)(2) (criminal acts such as moral turpitude, prostitution, drug offenses, and multiple criminal offenses) in the following circumstances:
However, 8 U.S.C. § 1182(h) also requires that the alien meet any terms or conditions imposed by regulations, and the government must consent to allow the alien to apply or re-apply for a visa, admission to the U.S., or adjusted status.
Also, under 8 U.S.C. § 1182(h) some aliens are ineligible for waiver
However, under In re Michel, 21 I. & N. Dec. 1101, 1998 WL 40407 (B.I.A. 1998) an alien who has not yet been admitted to the U.S. as a lawful permanent resident is still eligible for a waiver even if the alien has been convicted of an aggregate felony, even if the alien entered the U.S. illegally, but while aggregate felonies are not an absolute bar to admissibility they may properly be considered as factors in the decision of whether to exercise discretion. See also, Bracamontes v. Holder, 675 F.3d 380 (4th Cir. 2012) (holding only aliens who were lawful permanent residents are ineligible for waivers for committing aggregate felonies).
Under 8 U.S.C. § 1182(h) these discretionary decisions whether to grant or deny a waiver cannot be reviewed by any court.
In U.S. v. Cerna, 603 F.3d 32 (2d Cir. 2010) the court applies a factors test to balance reasons in favor of exercising discretion to grant waivers including: family ties, years in the U.S., hardship, U.S. military service, employment history, community service, economic ties to the U.S., and evidence of good character (or for criminals evidence of rehabilitation), and reasons against exercising discretion including: other immigration violations, nature and circumstances of the ground(s) for exclusion, criminal activities, and other reasons the alien would be 'undesirable.' See also, U.S. v. Sosa, 387 F.3d 131 (2d Cir. 2004).
Calderon v. Atty. Gen. of U.S., 309 Fed. Appx. 583 (3d Cir. 2009) (holding for the purpose of determining if an alien was entitled to a waiver, the court may consider time the alien spent in prison).
Borrego v. Mukasey, 539 F.3d 689 (7th Cir. 2008) (holding the Attorney General's discretion to grant waivers and require terms and conditions applies to aliens who have not yet been admitted, not to aliens who have already been admitted).
Reyes-Cornejo v. Holder, 734 F.3d 636 (7th Cir. 2013) (holding even a compelling showing of extreme hardship does not require an exercise of discretion in an alien's favor when the alien has numerous criminal acts on record).
Waivers for victims:
Title 8 C.F.R. § 212 provides for applications for victims of trafficking and other crimes.
22 C.F.R. §§ 40.21-40.24 apply to inadmissibility based on criminal acts and provide for waivers and definitions.
8 C.F.R. § 212.7(d) (providing a showing of unusual or extreme hardship is necessary for a waiver of inadmissibility due to criminal grounds).
8 C.F.R. § 212.4 provides procedural requirements for various grounds of inadmissibility.
Rotimi v. Gonzales, 473 F.3d 55 (2d Cir. 2007).
Crump v. Reno, 130 Fed. Appx. 500 (2d Cir. 2005).
Caroleo v. Gonzales, 476 F.3d 158 (3d Cir. 2007).
Bracamontes v. Holder, 675 F.3d 380 (4th Cir. 2012).
Martinez v. Mukasey, 519 F.3d 532 (5th Cir. 2008).
Zamora-Mallari v. Mukasey, 514 F.3d 679 (7th Cir. 2008).
Aguilar-Ramos v. Holder, 594 F.3d 701 (9th Cir. 2010).
Samuels v. Chertoff, 550 F.3d 252 (2d Cir. 2008).
Estrada v. Holder, 560 F.3d 1039 (9th Cir. 2009).
Rivas-Gomez v. Gonzales, 225 Fed. Appx. 680 (9th Cir. 2007).
Yeung v. I.N.S., 76 F.3d 337 (11th Cir. 1995).
