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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)).

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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).

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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.

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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)

 

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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.

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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.

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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.

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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
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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.

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Entry without Inspection
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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.

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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:

  1. The nature of the proceedings against the individual​;

  2. The individual's alleged acts that violated the law;

  3. 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

  4. 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 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.

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