Glossary

Common Immigration Terms of Art

Removal Order

Inadmissibility

8 USC 1182

Deportability

8 USC 1227

When an individual is ordered to leave the U.S. Removal orders are issued on the basis of being inadmissible under 8 USC 1182 or being deportable under 8 USC 1227.

The inadmissibility grounds of removal are codified in 8 USC 1182. The inadmissibility grounds apply to individuals who have never been inspected at a border and formally admitted to the United States (i.e. persons who enter without inspection (EWI)).

Also, the inadmissibility grounds may apply to Lawful Permanent Residents (LPRs) and visa holders who travel abroad and seek to re-enter the United States, particularly if the individual has been convicted of certain crimes. If deemed to be inadmissible upon re-entry, the individual will be placed in removal proceedings. Note: some criminal convictions will not render a person deportable, but will render them inadmissible if they depart and attempt to return to the United States (i.e. an offense involving possession of 30 grams or less of marijuana).

Additionally, many applications for immigration benefits (i.e. adjustment of status to Lawful Permanent Residency) require that an individual be admissible under 8 USC 1182.

Common inadmissibility grounds for removal:

Conviction or admission of a controlled substance offense
Conviction or admission of a Crime Involving Moral Turpitude (unless it is the individual's only CIMT, it is punishable by a year or less in jail, and, if convicted, the individual is sentenced to 6 months or less in jail (known as the "Petty Offense Exception" to inadmissibility)
Health related grounds
National security grounds
Public charge grounds
Undocumented entry and immigration status violations
Prior removal order
Unlawful presence (i.e. overstaying a non-immigrant visa for more than 6 months)

The deportability grounds of removal are codified in 8 USC 1227. The deportability grounds apply to individuals who have been inspected at a border and lawfully admitted to the United States (i.e. Lawful Permanent Residents (green card holders), other visa holders, or visa overstays). Most grounds of deportability require a conviction.

Common deportation grounds for removal:

Crime Involving Moral Turpitude (CIMT) punishable by a year or more in jail and committed within 5 years of admission
Two or more CIMTs committed at any time, not arising out of the same criminal scheme
Controlled Substance Offense, except for one conviction for possession of 30 grams or less of marijuana
Aggravated Felony
Crime Against a Child
Crime of Domestic Violence
Conviction or judicial finding of a violation of an order of protection issued to prevent domestic violence
Firearm offense
Prostitution
Commercialized vice

Lawful Permanent Resident (LPR)

An LPR is an immigrant who has been lawfully accorded the privilege of residing permanently in the United States, but remains subject to deportation grounds for removal or inadmissibility grounds for removal if he or she travels abroad. Lawful permanent residents are granted admission to the United States on the basis of family relation or job skill. Refugees and asylees may adjust to LPR status after one year of continuous residence. Non-citizens granted Special Immigrant Juvenile Status (SIJS) can also adjust to LPR status. Lawful permanent residents may be issued immigrant visas by the Department of State overseas or adjust to LPR status with USCIS after entering the United States. In certain instances, an individual may apply for adjustment of status in removal proceedings. Generally, lawful permanent residents are those individuals who have "green cards" and are permitted to apply for naturalization after five years of U.S. residence.

Nonimmigrant

Nonimmigrants are those who are allowed to enter the United States for a specific purpose and for a limited period of time, such as tourists, students, business visitors, diplomats and specialty occupations such as high tech workers or seasonal agricultural workers. A non-citizen who enters on a non-immigrant visa but fails to depart the United States prior to the expiration of their authorized period of stay will be without status and subject to removal from the United States on that basis alone.

Conviction

8 USC 1101(a)(48)(A)

{for immigration purposes)

Immigration law defines “conviction” broadly to include dispositions where: (1) a formal judgment of guilt was entered by a court, or (2) (a) a judge or jury has found the defendant guilty, the defendant has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt and (b) the judge has ordered some form of punishment, penalty, or restraint on the non-citizen’s liberty to be imposed. This broad definition has been held to even include some dispositions not considered a “conviction” by the criminal court, such as low-level violations and convictions that are vacated after successful completion of rehabilitation programs. An Adjournment in Contemplation of Dismissal (ACD) or Youthful Offender (YO) adjudication in New York State are not convictions for immigration purposes.

Crime Involving Moral Turpitude (CIMT)

Conviction or sometimes simple admission of one or more crimes involving moral turpitude may trigger removability for some immigrants. This immigration law term-of-art has not been defined by Congress. It is a broad immigration category covering many types of offenses (including many theft, fraud, drug, assault, sex, and some driving related offenses). Because it has no definition it is often difficult to determine what offenses might constitute a CIMT. However, case law has defined a CIMT as a crime which requires that the perpetrator committed a reprehensible act with some form of guilty knowledge. See Matter Silva-Trevino, 24 I&N Dec. 687, 688, 706 (A.G. 2008). Both the inadmissibility and deportation grounds include CIMT provisions, so depending upon the circumstances, a conviction for an offense classified as a CIMT can trigger both inadmissibility and deportability.

Petty Offense Exception for CIMTs

Generally, a non-citizen who is convicted or formally admits to a CIMT is inadmissible. However, the individual can avoid being inadmissible under the moral turpitude ground of inadmissibility if the offense falls within the petty offense exception. To fall within the petty offense exception, the non-citizen must: (1) have committed only one CIMT; (2) if convicted, not been sentenced to a term of imprisonment in excess of six months; and (3) the offense must have a maximum possible sentence of one year.

Aggravated Felony

A federal immigration category that includes more than 50 classes of offenses, some of which are neither “aggravated” nor a “felony” (for example, misdemeanor shoplifting with a one-year sentence, even if the sentence is suspended). This term was first created by the 1988 Anti-Drug Abuse Act to include murder, rape, drug trafficking, and trafficking in firearms or destructive devices. Congress expanded this term numerous times over the years, and most extensively in 1996. This is one of the government’s most powerful tools for deportation because it strips an immigrant of most choices in the deportation process. An immigrant – including a Lawful Permanent Resident – who is convicted of an offense categorized as an “aggravated felony” is subject to mandatory detention (no bond) and virtually mandatory deportation (no possibility of applying for Cancellation of Removal or any other pardons or asylum). A non-citizen who is convicted of an aggravated felony may still be eligible for deferral of removal under the Convention Against Torture (CAT).

Particularly Serious Crime (PSC)

A non-citizen is barred from applying for asylum or withholding of removal if he is convicted of a “particularly serious crime" (PSC). See 8 USC 1158(b)(2)(A)(ii) and 8 USC 1231(b)(3)(B)(ii). While all aggravated felonies are deemed to be a PSC for purposes of asylum, an aggravated felony conviction or convictions and an an aggregate sentence of at least five years in jail will automatically bar eligibility for withholding of removal. However, an offense does not need to be an aggravated felony to be a PSC. This determination is made on a case by case basis and takes into account a number of factors. An adjudicator may take into account the underlying circumstances of the conviction.

Immigration Detainer

ICE’s most effective tool to ensure a pipeline from the criminal justice system to the deportation system. A detainer serves as a request to a jail or prison to hold a suspected noncitizen for ICE to pick up or to notify ICE when the jail or prison intends to release the person (for example, after criminal bail is paid the case is disposed of, or the criminal sentence has been served). Federal regulations provide that a jail or prison can hold someone for only 48 additional hours (not including weekends or holidays) based on an ICE detainer. However, jails and prisons frequently violate this 48-hour rule.

In New York State, it is unlawful for state and local officers to detain people for civil immigration violations as NY law does not authorize them to enforce civil immigration law. It is also unlawful for New York state and local officers to seize, arrest, or otherwise detain a person who would otherwise be free to leave solely on the basis of an ICE detainer. Extending a person's detention while waiting for ICE to arrive constitutes a "new arrest and seizure" under NY law and the Fourth Amendment. See The People, ex rel. Wells o.b.o. Francis v. DeMarco, 2018 NY Slip Op 07740, 2018 WL 5931308 (2d Dept 2018).

Detention

People are detained at every step of the immigration “process:” (1) awaiting adjudication of asylum or adjustment applications; (2) picked up and jailed without charges; (3) pending immigration proceedings; (4) after being ordered deported, while ICE is actively trying to remove them; and (5) sometimes indefinitely, where ICE knows it may not be able to deport someone with an order of deportation.

Mandatory detention is incarceration throughout the removal process without the opportunity to apply for bond and applies to many people with criminal convictions. Detainees are housed in over 250 county jails, private prisons, and federal facilities nationwide, and are often held with the general criminal population. Because ICE detention is Federal Jurisdiction, detainees may be detained at any facility throughout the United states.

Entry with Inspection

A foreign national who enters the U.S. with a visa or valid border crossing card and is admitted at a U.S. port of entry at the time of arrival has entered with inspection.

Entry without Inspection

A foreign national who enters the U.S. without being admitted at a U.S. port of entry has entered without inspection. This can refer to individuals who crossed the border without a visa.

Illegal Reentry

8 USC 1326

This is a federal offense criminalizing anyone who enters, attempts to enter, or is found in the U.S. after having been deported or denied admission. People convicted of illegal reentry can face a criminal sentence of up to 2 years and up to 20 years if convicted of illegal reentry after having been ordered removed for an aggravated felony.

U.S. Citizenship and Immigration Services (USCIS)

The US Citizenship and Immigration Services (USCIS) is a branch of the Department of Homeland Security (DHS). USCIS is primarily responsible for handling affirmative applications for immigration benefits, such as applications for asylum, work permits, DACA, green cards, and citizenship.

Notice to Appear (NTA)

This document initiates removal proceedings and orders a non-citizen to appear before an Immigration Judge. The NTA advises the individual of, among other things:

The nature of the proceedings against the individual;
The individual's alleged acts that violated the law;
The individual's right to have an attorney present. Unlike criminal or family court proceedings, there is no constitutional/statutory right to an attorney; and
Consequences of failing to appear at scheduled hearings.

Employment Authorization Document (Work Permit)

A document that permits a non-citizen authorization to lawfully work in the United States and is based on having a pending application for immigration status/benefits, an employment visa, lawful permanent residency, or some other lawful status or deferral of removal that allows for work authorization (i.e. DACA, TPS, withholding of removal). Please note that an EAD itself is not legal status but can be indicative of having lawful status or an application for benefits pending.

Controlled Substance Offense

A ground of inadmissibility and a ground of deportability. A controlled substance offense is also a bar to 212(h) waiver, and a bar to the "good moral character" requirement for naturalization. There is an exception to the bar and the ground of deportability for a single possession for one's own use of 30 grams or less of marijuana.

Crime of Domestic Violence

Crime Against a Child

Crime of Violence

18 USC 16(a)

Violation of Order of Protection

A ground of deportability that involves "crime of violence" (See 18 USC 16(a)) committed against a person with whom the non-citizen has a domestic relationship.

A ground of deportability. Includes a "crime of child abuse, child neglect, or child abandonment." See 8 USC 1227(a)(2)(E)(i).

An offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another. Please note that the definition of a crime of violence under18 USC 16(b) has been struck down as unconstitutionally vague. This definition applies to the deportation ground of a "crime of domestic violence" and to the aggravated felony ground of a "crime of violence."

A ground of deportability that is triggered by a conviction or judicial finding. There must be a domestic relationship between the defendant and protected party and the violation must involve a portion of the protection order meant to prevent domestic violence. See 8 uSC 1227(a)(2)(E)(ii)

Advance Parole

An advance parole document is issued solely to authorize the temporary parole of a person into the United States. The document may be accepted by a transportation company in lieu of a visa as an authorization for the holder to travel or return to the United States. An advance parole document is not issued to serve in place of any required passport. Advance parole is an extraordinary measure used sparingly to bring an otherwise inadmissible individual to the United States.

Anchor 1

Defenses to Removal

Cancellation of Removal for LPRs

8 USC 1229b(a)

Lawful Permanent Resident cancellation of removal is a form of relief that cancels removal for LPRs and permits them to retain their LPR status. This relief is only available in removal proceedings.

To be eligible for cancellation of removal, an LPR must have:

been an LPR for at least five years prior to the application being filed;
continually resided in the U.S. for seven years after being admitted in any status;
not been convicted of an aggravated felony.

If eligible, the granting of cancellation of removal is a discretionary decision by the immigration judge in which the judge examines a 'totality of circumstances'. To receive cancellation of removal, a non-citizen must not have received either form of cancellation of removal relief in the past.

Cancellation of Removal for non-LPRs

8 USC 1229b(b)

Non-LPR cancellation of removal is a form of immigration defense available to non-citizens who have been placed in removal proceedings in immigration court. This relief is not available unless the non-citizen is in removal proceedings. If eligible, the granting of cancellation of removal is a discretionary decision by the immigration judge in which the judge examines a 'totality of circumstances.' If successful, the non-citizen is granted lawful permanent residency.

To be eligible for cancellation of removal, a non-LPR must have:

been continuously physically present in the U.S. for at least ten years;
had good moral character throughout this time and up through the granting of non-LPR cancellation of removal;
not been convicted of an offense(s) otherwise subjecting the non-citizen to a criminal ground of inadmissibility (8 USC 1182(a)(2)), criminal ground of deportability (8 USC 1227(a)(2)), or a ground of deportability based on failure to register and falsification of documents (8 USC 1227(a)(3);
established that removal of the non-citizen would cause "exceptional and extremely unusual hardship" to the individual's spouse, parent, or child who is a United States citizen or lawful permanent resident; and
never have previously been granted either form of cancellation of removal.

Stop-Time Rule for Cancellation of Removal

Voluntary Departure

Asylum

The period of continuous presence or residence necessary for both forms of cancellation of removal can be permanently stopped by the issuance of an NTA or when the individual commits a ground of inadmissibility (8 USC 1182(a)(2)) that renders them inadmissible or deportable. If either of these scenarios occurs prior to the non-citizen acquiring the requisite period of continuous presence or residence for either form of cancellation of removal, the non-citizen will not be eligible for cancellation of removal.

Asylum is a humanitarian form of relief for non-citizens who:

experienced past persecution or fear future persecution;
based on their race, religion, nationality, membership in a particular social group, or political opinion;
by or with the acquiescence of the government of the country of which they are fleeing.

An affirmative application for asylum must be filed within a year of a non-citizen's initial entry to the United States, however a waiver of this requirement may be granted in exceptional circumstances. Asylum can also be raised as a defense to removal in immigration proceedings.

A non-citizen will be barred from receiving asylum if they have been convicted of a "particularly serious crime."

Decision to grant asylum is discretionary.

A non-citizen can apply for Lawful Permanent Resident status after one year of being granted asylum.

Voluntary departure allows an individual to depart from the country, without an order of removal, at his or her own expense. The departure may or may not have been preceded before an immigration judge. The individual allowed to voluntary depart leaves but does not have a bar to reenter the United States due to a removal order.

Statutory Withholding of Removal

8 USC 1231(b)(3)

Withholding of removal is a form of humanitarian relief that, similar to asylum, is based on past or fear of future persecution based on race, religion, nationality, membership in a particular social group, or political opinion, by or with the acquiescence of a government entity. This form of relief is only available in removal proceedings and the burden of proof is higher than what is required for asylum. The burden is on the non-citizen to demonstrate that it is more likely than not that they will face persecution on account of a protected ground if removed to their country of origin.

A non-citizen will be barred from receiving withholding of removal if they have been convicted of a "particularly serious crime."

Withholding of removal is not a discretionary form of relief and is not subject to the one-year filing deadline.

If granted withholding of removal, a non-citizen may seek work authorization but has no pathway to becoming a lawful permanent resident (LPR) or a U.S. Citizen.

Withholding of Removal Under the Convention Against Torture (CAT)

8 CFR 208.16

If a non-citizen is placed in removal proceedings, they can seek relief under the Convention Against Torture (CAT). An applicant for relief bears the burden of demonstrating that it is more likely than not that they will be tortured if removed to their country of origin. A non-citizen will be barred from receiving withholding of removal under CAT if they have been convicted of a "particularly serious crime."

Withholding of removal under CAT prohibits the return of an individual to their home country. This status can only be terminated if the individual's case is reopened and if DHS establishes that they are no longer likely to be tortured in their country of origin.

If granted withholding of removal under CAT, a non-citizen is eligible to receive work authroization but has no path to becoming a lawful permanent resident (LPR) or U.S. Citizen.

Deferral of Removal Under the Convention Against Torture (CAT)

8 CFR 208.17

Deferral of removal under CAT is a more temporary form of relief than withholding. Deferral of removal under CAT is appropriate for individuals who would likely be subjected to torture, but who are ineligible for withholding of removal, such as persecutors, terrorists, and certain criminals. Deferral of removal can be terminated more quickly and easily than withholding of removal.

A non-citizen may also continue to be held in detention despite a grant of deferral of removal under CAT.

Adjustment of Status

An individual may be eligible to adjust status (also known as 'obtaining a green card') through a U.S. Citizen or Lawful Permanent Resident family member or spouse, through a U.S. employer, by virtue of asylee or refugee status, based on a grant of SIJS, or upon receiving a U Visa or T Visa. A non-citizen can only apply for adjustment of status in removal proceedings if a visa is immediately available (i.e. through a petition sponsored by an immediate relative).

Re-adjustment of Status

LPRs who are rendered deportable and are in removal proceedings, can seek to re-adjust their status to that of an LPR based on certain family relationships, provided they are not inadmissible, or, if inadmissible, they are eligible for a waiver of inadmissibility.

U-Visa

A U-Visa is a non-immigrant visa for victims of certain crimes who have been, or are likely to be cooperative with law enforcement in the investigation or prosecution of a crime. A U-Visa is a temporary form of immigration status that allows a person to lawfully live and work in the United States. If a non-citizen receives a U-Visa, a U-Visa may also be available for their qualifying family members. A non-citizen may apply for lawful permanent resident status after three years of U-Visa status. A U-Visa must be certified by a designated certifying government agency, such as a local law enforcement agency.

T-Visa (Human Trafficking Victims)

T nonimmigrant status is a temporary immigration benefit that enables certain victims of a severe form of human trafficking to remain in the United States for up to 4 years if they have assisted law enforcement in an investigation or prosecution of human trafficking. T nonimmigrant status is also available for certain qualifying family members of trafficking victims. T nonimmigrants are eligible for employment authorization and certain federal and state benefits and services. T nonimmigrants who qualify may also be able to adjust their status and become lawful permanent residents.

Special Immigrant Juvenile Status (SIJS)

Special Immigrant Juvenile Status (SIJS) is a federal law that assists certain children who are foreign nationals in obtaining legal permanent residency. Individuals under the jurisdiction of a juvenile court (“family court”, “orphan’s court”, or some other name, depending on which state it is in) can apply for SIJS if they are: (1) under 21 at the time of filing; (2) unmarried; (3) declared dependent by a juvenile court in the U.S., or have been placed in the custody of a state agency or other individual entity by such a court; (4) unable to reunify with one or both parents due to abuse, neglect, abandonment, or a similar basis under state law; and (5) whose return to their home country is not in their best interest. See 8 USE 1101(a)(27)(J)(i)-(ii); 8 CFR 204.11(a).

If granted SIJS, an individual may then apply for adjustment of status to Lawful Permanent Resident status. An individual who is granted LPR status based on SIJS cannot petition for LPR status for their parent, even if such parent was not the parent who was found to have abandoned, abused, or neglected the SIJS recipient.

Deferred Action for Childhood Arrivals (DACA)

Under DACA, an individual is eligible for work authorization and is permitted to remain in the United States for a renewable two year period. DACA is not lawful status but only defers removal. USCIS is currently accepting initial and renewal applications. There is not currently a pathway to LPR status or naturalization for DACA recipients.

An individual is eligible for DACA if they:

were under 31 years of age on June 15, 2012;
came to the U.S. while under the age of 16;
have continuously resided in the U.S. since June 15, 2007;
were physically present in the U.S. on June 15, 2012; and
are currently enrolled in high school, have graduated from high school, obtained a GED, or are a veteran of the Army or Coast Guard.

Temporary Protected Status (TPS)

The U.S. government may grant Temporary Protected Status (TPS) to persons already in the United States who came from certain countries experiencing conditions of war or natural disasters. TPS allows a person to live and work in the United States for a specific time period, but it currently does not lead to U.S. permanent residence (a green card) or naturalization.

Violence Against Women Act (VAWA)

A sweeping response to the perception of increased violence against women in America, the Violence Against Women Act (VAWA) of 1994 was a broad-based law that created everything from funding of domestic-violence programs to new Civil Rights remedies for women who were victims of gender-based attacks. Under VAWA, battered foreign nationals who are married to, or recently divorced from US Citizens or Lawful Permanent Residents can obtain Lawful Permanent Residence or remove the condition on their 2-year Conditional Permanent Residence cards without involvement of their abusive spouse or former spouse. If the foreign national has never been married to their abuser, or if their abuser is not a US Citizen or Lawful Permanent Resident, they most likely do not qualify to self-petition for Lawful Permanent Residence under VAWA. However, the foreign national may qualify for a U-visa.

Naturalization

This is the process by which a foreign-born individual becomes a citizen of the United States. To naturalize, immigrants must be at least 18 years old; have been lawful permanent residents of the United States for the requisite statutory period (generally five years, but three years if married to a U.S. citizen); demonstrate a basic knowledge of English, American government and history; and have good moral character for the statutory period. Certain criminal conduct and convictions can bar good moral character permanently or for the statutory period.