The most significant changes contained in the Immigration Act of 1996 concern those in the area of deportation and exclusion.  In fact, the new act removes the terms deportation and exclusion and replaces them with a new term known as "removal proceedings".  In the past there had been a distinction between the status of an alien who had physically entered the United States (whether legally or illegally), who would be subject to deportation proceedings, and that of an alien who was apprehended at the border, prior to entry to the United States, who would be subject to exclusion proceedings.  However, the new act does away with these distinctions for the most part, and now uses the term removal proceedings to describe those whom the immigration service wishes to expel from the United States.

The immigration act still distinguishes between those aliens who are inadmissible to the United States, and those who are in the United States and subject to deportation.  Section 212 of the Immigration & Nationality Act lists ten (10) general classes of aliens who are ineligible to receive visas and are ineligible for admission to the United States.  Section 237 of the Act lists the general classes of aliens who are deportable from the United States.  These contain six (6) main classifications, within which are contained numerous sub-classifications.  Both sections 212 and 237 are described in much greater detail in the following portions of the manual.

A.  General Overview of Grounds of Inadmissibility and Deportation

For many aliens, their first encounter with the immigration service is when they are arriving at a port of entry to the United States.  This can be an airport, a seaport, or a border crossing point.  Whenever an alien attempts to enter the United States, he or she must convince the CBP officer that the purpose of the entry is lawful, complies with the type of visa that they are carrying, and that they are otherwise admissible to the United States.  In other words, if they are not admissible, because of one of the grounds of inadmissibility contained in §212 of the Immigration Act, they will not be permitted to enter the United States.

At this point we will discuss the general grounds of inadmissibility.  We will also discuss any waivers that may be available for each.  The grounds of inadmissibility are as follows:

(1) Health related grounds: This includes those who have certain communicable diseases such as tuberculosis, leprosy, and syphilis.  A waiver is available to an alien who is the spouse or the unmarried son or daughter, or the minor unmarried lawfully adopted child, of a United States citizen, or of an alien lawfully admitted for permanent residence, or of an alien who has been issued an immigrant visa, or has a son or daughter who is a United States citizen, or an alien lawfully admitted for permanent residence, provided they comply with any requirements of the appropriate health department, including the posting of any bond that may be required.  In addition, the Immigration Reform Act of 1996 now requires all persons who are seeking permanent residence in the United States to be vaccinated for a variety of illnesses, including polio, mumps, measles, etc.  If the appropriate vaccine were received, then the ground of inadmissibility would be removed. Furthermore, an alien who is determined to have, or in some cases, have had, a physical or mental disorder and behavior associated with the disorder that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others, is inadmissible, but a waiver is available upon complying with the requirements of the health department and posting the appropriate bond.  Drug addicts and drug abusers are inadmissible, and no waivers are provided for under the Immigration Act.

(2) Criminal and Related Grounds: An alien who has been convicted of a crime involving moral turpitude, or of a violation of (or a conspiracy or attempt to violate) any law or regulation of a state, the United States, or a foreign country relating to a controlled substance is inadmissible.  Likewise, any alien convicted of two or more offenses, even if they did not involve moral turpitude, is inadmissible if the aggregate sentences to confinement actually imposed were 5 years or more.  An alien who the consular or immigration officer knows, or has reason to believe, is or has been an illicit trafficker in any controlled substance is inadmissible.  Additionally, any alien who is involved in prostitution or commercialized vice is inadmissible.
 
An alien inadmissible on criminal grounds may be granted a waiver under §212(h) of the Immigration and Nationality Act if the alien is the spouse, parent, son or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence; can establish that the US citizen or lawful permanent resident relative will suffer extreme hardship if the waiver is not granted; and that the admission of the applicant would not be contrary to the national welfare, safety, or security of the United States.  In addition, if the crime was committed more than 15 years before seeking admission, the alien need only show rehabilitation and that the admission of the alien would not be contrary to the national welfare, safety, or security of the US.

The waiver application is filed on immigration form I-601, together with a filing fee, and proof of the qualifying relationship.  Also, you must attach whatever evidence you have that extreme hardship will be caused to the US citizen or lawful permanent resident relative if the waiver is not granted.   

Under the Immigration Reform Act of 1996, no waiver may be granted under this section if the alien had previously been admitted to the US as a permanent resident, and since said date had been convicted of an aggravated felony or the alien had not resided lawfully in the US for at least seven (7) years.

(3) Security and Related Grounds: This ground of inadmissibility relates to any alien who seeks to enter the United States to engage in espionage, to import or export any illegal security items, who seeks the overthrow of the US government, who has or seeks to engage in terrorist activities, whose actions will have serious foreign policy consequences for the United States, is a member of a totalitarian party, or participated in Nazi persecution or genocide.

(4) Public Charge: Any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible. The factors to be taken into consideration in determining whether an alien is likely to become a public charge include the alien's age; health; family status; assets, resources, and financial status; and any affidavit of support given on behalf of the alien.

(5) Lack of Labor Certification: Any alien who seeks to enter the United States, on a permanent basis, for the purpose of performing skilled or unskilled labor is inadmissible unless he or she has first obtained a labor certification from the Department of Labor certifying that there is a shortage of workers in the alien's occupation in the part of the country where the alien will be employed.  A labor certification is not necessary if the alien is entering pursuant to a petition filed in the family preference category, or on a nonimmigrant visa, as an investor, or as a refugee.  In addition to the above, certain aliens entering as medical doctors or health care workers are admissible only if they have first passed the required medical or health care exams and have an appropriate certificate evidencing such compliance.

(6) Illegal Entrants and Immigration Violators: These include aliens who have entered the United States without admission or parole; those who have failed to attend a removal proceeding; those who have willfully misrepresented a material fact, or committed fraud in seeking entry to the US; or have falsely claimed US citizenship; or a nonimmigrant alien who has fraudulently obtained a public benefit; and stowaways and alien smugglers.  A waiver exists for those who are present in the US without admission or parole if they can establish that they are a battered spouse or child.  In addition, a waiver exists for those who have committed fraud, or have made a material misrepresentation, if the alien is the spouse, son, or daughter of a United States citizen or lawful permanent resident alien, and that the refusal of admission to the United States will cause extreme hardship to the citizen or lawfully resident spouse or parent of such alien. The waiver application is filed on immigration Form I-601, together with a filing fee, and proof of the qualifying relationship.  Also, you must attach whatever evidence you have that extreme hardship will be caused to the US citizen or lawful permanent resident relative if the waiver is not granted.

(7) Documentary Requirements: This class includes aliens seeking to enter as immigrants or non-immigrants who do not have the proper entry documents, including valid passports, visas, alien cards, etc.  A waiver exists in cases of unforeseen emergencies; or where the alien is a citizen of a country that has a treaty with the US for admission of its nationals without the necessary documentation; or where the alien is proceeding in direct transit through the US.


(8) Ineligible for Citizenship: Any alien seeking to enter as an immigrant who is permanently ineligible to citizenship is inadmissible.  This includes those who have evaded the draft, but does not include those aliens who seek to enter the United States only as non-immigrants.


(9) Aliens Previously Removed: This class of inadmissibility applies to those aliens who have been ordered removed from the United States.  In general, they are ineligible to reenter the United States for a period of five years following the removal order.  The period is increased to twenty (20) years if it is a second removal, or it is a permanent bar if the alien was removed for the commission of an aggravated felony.

This section also contains a ground of inadmissibility for aliens who are "unlawfully present" in the United States.  The Immigration Reform Act of 1996 added this section, and it is considered one of the most extreme measures contained in the new act.  This provision provides that any alien who was unlawfully present in the United States for a period of more than 180 days but less than 1 year, (after April 1, 1997), voluntarily departed the United States, whether under a removal order or not, and who again seeks admission within 3 years of the date of the departure or removal, or has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such departure or removal is inadmissible. 

Unlawful presence means the alien's presence in the United States after the period of stay granted by Immigration, or if the alien is present in the United States, without being admitted or paroled.  Several exceptions exist.  These include minors under the age of 18; those who have filed a bona-fide application for asylum; those who qualify for the family unity program; battered women and children; and those who have filed a non-frivolous and timely application for extension of stay or change of status and have not been employed without authorization in the United States. 

In addition to all of the above, an alien who has been unlawfully present in the United States for an aggregate period of more than 1 year, or has been ordered removed and who enters or attempts to enter the United States without being admitted is inadmissible.

A waiver is available under the three (3) and ten (10) year bars for an alien who is the spouse or son or daughter of a US citizen or permanent resident, and if it is established to the satisfaction of the immigration service that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien.  As with many other provisions of the new act, no court review of the immigration decision is permitted.

(10) Miscellaneous Provisions: There are several other classes of aliens who are deemed inadmissible. These include practicing polygamists; guardians who are required to accompany helpless aliens; international child abductors; unlawful voters; and former citizens who renounced citizenship to avoid taxation.
 
B. General Classes of Deportable Aliens

In addition to the grounds of inadmissibility mentioned above, an alien can also be removed from the United States based on the grounds contained in §237 of the Immigration and Nationality Act, which is entitled "General Classes of Deportable Aliens". There are six (6) general grounds listed, which include the following:

(1) Aliens who were inadmissible at the time of entry or adjustment of status, or who have otherwise violated their status, such as those who have worked without authorization or have overstayed their time in the United States.  Also included are aliens whose conditional residence status has been terminated, those who had engaged in alien smuggling, and aliens who have engaged in marriage fraud.

(2) Aliens who have been convicted of a crime involving moral turpitude committed within five years after the date of admission, where the maximum sentence, which could be imposed for the crime, is one year or longer, are deportable.  Likewise, an alien who at any time after admission is convicted of two or more crimes involving moral turpitude is deportable. These deportation grounds also include aliens who are convicted of controlled substance violations (other than a single offense involving possession for one's own use of 30 grams or less of marijuana), as well as drug abusers and drug addicts, and those who have been convicted of any firearms violations.  The new act also renders deportable those aliens who have been convicted of a crime involving domestic violence, stalking, or child abuse.  Also, any alien who is convicted of an aggravated felony at any time after admission is deportable.  An aggravated felony is described in §101(a)(43) of the Immigration Act.  These are crimes which the immigration service considers particularly serious, and which will preclude nearly all forms of relief.

(3) An alien is deportable for failure to register a change of address (unless the alien establishes that such failure was reasonably excusable or was not willful); for any conviction related to the use of false documents; or for falsely claiming US citizenship.

(4) An alien may also be deported for a violation of security and related grounds such as terrorist activities, engaging in actions that could have potentially serious adverse foreign policy consequences for the United States, and if he or she has engaged in Nazi persecution or genocide.