The Immigration and Nationality Act (INA) uses the term "alien" to describe "any person not a citizen or national of the United States." 8 U.S.C. § 1101(a)(3).

See, e.g., Kleindienst v. Mandel, 408 U.S. 753, 769-70 (1972) ("[P]lenary congressional power to make policies and rules for exclusion of aliens has long been firmly established."); Boutilier v. INS, 387 U.S. 118, 123 (1967) ("It has long been held that the Congress has plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden."). But see Zadvydas v. Davis, 533 U.S. 678, 695 (2001) (noting that Congress's plenary power in enacting immigration laws "is subject to important constitutional limitations"). See generally CRS Report R44969, Overview of the Federal Government's Power to Exclude Aliens, by Ben Harrington (discussing the scope of congressional authority over immigration).

See 8 U.S.C. § 1101, et seq.

See id. §§ 1182(a)(2), 1227(a)(2).

See, e.g., id. § 1227(a)(2).

See, e.g., id. § 1182(a)(2), (a)(9) (criminal grounds for inadmissibility, including for aliens previously removed on account of committing an aggravated felony); see also id. § 1101(a)(13)(C) (providing that an alien with lawful permanent resident status who departs from the United States and thereafter seeks to return shall not be considered an applicant for admission except in certain cases, including when the alien has committed conduct falling under the criminal grounds for inadmissibility or engaged in illegal activity after departing the United States).

See, e.g., id. §§ 1158(b)(2), 1182(h)(2), 1229b(a), 1229c(b)(1).

See, e.g., id. § 1255. An LPR is authorized to live permanently in the United States and may obtain many benefits unavailable to other categories of aliens. See Dep't of Homeland Security, Lawful Permanent Residents (LPR), https://www.dhs.gov/immigration-statistics/lawful-permanent-residents (last visited Mar. 27, 2018).

See, e.g., 8 U.S.C. §§ 1101(f), 1427(a).

P.L. 107-296, 116 Stat. 2135 (2002).

See generally USCIS History Office & Library (2012), Overview of INS History, at 9, available for download at https://www.uscis.gov/history-and-genealogy/our-history/agency-history/origins-federal-naturalization-service; USCIS, Immigration & Nationality Act, https://www.uscis.gov/laws/immigration-and-nationality-act (last visited Feb. 13, 2018).

Immigration and Naturalization Act of 1952, Pub. L. No. 82-414, 66 Stat. 163, § 103 (June 27, 1952) (charging the Attorney General with administering and enforcing the INA and "all other laws relating to the immigration and naturalization of aliens, except insofar as this Act or such laws relate to the powers, functions, and duties conferred upon the President, the Secretary of State, the officers of the Department of State, or diplomatic or consular officers").

USCIS History Office & Library, supra note 11, at 11. Other agencies in addition to the DHS, the DOJ, and the State Department play a role in immigration administration. For example, the Department of Health and Human Services is responsible for housing and caring for unaccompanied alien children, 8 U.S.C. § 1232(b)(1), and the Department of Labor provides labor certification to employers seeking to sponsor foreign nationals to work in the United States, id. § 1182(a)(5)(A); 20 C.F.R. § 656.

8 U.S.C. § 1103(a)(1); see also 8 C.F.R. § 2.1.

Gordon & Mailman, et al., Immigration Law & Procedure, § 1.02, Scope, Agencies, and Sources.

8 C.F.R. § 100.1.

8 U.S.C. §§ 1229(a), 1229a(b)(4)(A).

See id. § 1225(b)(1)(A) (authorizing expedited removal of certain aliens at or near the border); 8 C.F.R. § 235.3(b) (regulations implementing expedited removal procedures); 6 U.S.C. § 211(setting forth CBP's functions).

See 6 U.S.C. § 271(b) (describing USCIS's adjudicatory functions); 8 C.F.R. § 100.1 (delegating authority to USCIS).

P.L. 107-296, 116 Stat. 2135, § 1102; 8 C.F.R. § 1003.

See 8 C.F.R. § 1003.9-1003.10.

See, e.g., Arizona v. United States, 567 U.S. 387, 396 (2012) ("Removal is a civil, not criminal matter.").

See 8 U.S.C. § 1229(a)(1)(E).

8 C.F.R. §§ 1003.1-1003.8.

Id. § 1003.1(h).

8 U.S.C. § 1103(a)(1).

Id. § 1252(a)(5). In addition, federal district courts have jurisdiction to review habeas corpus petitions by aliens challenging the legality of their detention pending their removal. See 28 U.S.C. § 2241 (authorizing federal courts to grant writs of habeas corpus to prisoners in federal custody); INS v. St. Cyr, 533 U.S. 289, 305 (2001) ("The writ of habeas corpus has always been available to review the legality of Executive detention."); Leonardo v. Crawford, 646 F.3d 1157, 1160 (9^th Cir. 2011) (providing that aliens held in custody may file habeas corpus petitions in federal district court).

8 U.S.C. §§ 1252(a)(2)(C), (D); see Estrada-Ramos v. Holder, 611 F.3d 318, 321 (7^th Cir. 2010) ("We lack jurisdiction to review removal orders of aliens removable under [INA] § 242(a)(2)(C) unless there is a valid constitutional claim or question of law.") (citing Zamora–Mallari v. Mukasey, 514 F.3d 679, 693–94 (7^th Cir.2008)); James v. Mukasey, 522 F.3d 250, 253 (2d Cir. 2008) ("[W]e lack jurisdiction to review any final order of removal against an alien who is deportable because he or she was convicted of an aggravated felony, save for constitutional claims and questions of law.") (citing 8 U.S.C. § 1252(a)(2)(C)).

See id. §§ 1181, 1184; What is a U.S. Visa, U.S. Dep't of State, Bureau of Consular Affairs, https://travel.state.gov/content/travel/en/us-visas.html (last visited Feb, 13, 2018). One notable exception to this general requirement is for persons travelling to the United States under the Visa Waiver Program. For more information on that program, under which citizens and nationals of 37 countries and Taiwan typically are not obligated to obtain a visa to visit the United States for business or tourism for 90 days or less, see Visa Waiver Program, U.S. Dep't of State, Bureau of Consular Affairs, https://travel.state.gov/content/travel/en/us-visas/tourism-visit/visa-waiver-program.html (last visited Feb. 13, 2018); see generally CRS Report RL32221, Visa Waiver Program, by Jill H. Wilson. Another exception is for Canadian and Bermudan citizens, who do not need a visa for temporary travel to the United States for most purposes. See U.S. Visas, Citizens of Canada & Bermuda, https://travel.state.gov/content/travel/en/us-visas/tourism-visit/citizens-of-canada-and-bermuda.html (last visited Feb. 13, 2018).

See 8 U.S.C. § 1104(c) (creating a Visa Office within the State Department).

See id. § 1202; Immigrant Visas vs. Nonimmigrant Visas, U.S. Customs & Border Prot., https://help.cbp.gov/app/answers/detail/a_id/72/~/immigrant-visas-vs.-nonimmigrant-visas (last visited Feb. 13, 2018). See also supra note 29 (describing some exceptions to visa requirements).

A consular official is "any consular, diplomatic, or other officer or employee of the United States" who issues immigrant or nonimmigrant visas to aliens overseas or determines nationality of aliens. 8 U.S.C. § 1101(a)(9).

See id. § 1202; The Immigrant Visa Process, U.S. Dep't of State, Bureau of Consular Affairs, http://travel.state.gov/content/visas/en/immigrate/immigrant-process.html (last visited Feb. 13, 2018); Tourism & Visit, U.S. Dep't of State, Bureau of Consular Affairs, https://travel.state.gov/content/travel/en/us-visas/tourism-visit.html (last visited Feb. 13, 2018); Business, U.S. Dep't of State, Bureau of Consular Affairs, https://travel.state.gov/content/travel/en/us-visas/business.html (last visited Feb. 13, 2018); Employment, U.S. Dep't of State, Bureau of Consular Affairs, https://travel.state.gov/content/travel/en/us-visas/employment.html (last visited Feb. 13, 2018); Study & Exchange, U.S. Dep't of State, Bureau of Consular Affairs, https://travel.state.gov/content/travel/en/us-visas/study.html (last visited Feb. 13, 2018). In some circumstances, however, an alien may submit a visa application in a country where he is not a resident if he is physically present there and the consular office has agreed to accept the alien's application. See 22 C.F.R. §§ 41.101(a)(1)(ii), 42.61(a).

See, e.g., 8 U.S.C. §§ 1101(a)(15), (a)(20), 1182.

Id. § 1182(a).

Id. § 1227(a). Additionally, an alien may be deportable on the ground that he was inadmissible at the time he entered the United States or adjusted status. Id. § 1227(a)(1)(A).

Id. § 1182(a)(2). Other provisions of INA § 212 also address criminal conduct, but they are not listed within § 212(a)(2). For example, INA § 212(a)(3) covers "Security and Related Grounds" of inadmissibility, such as terrorist activities, genocide, and acts of torture, which would likely involve conduct that is criminal in nature. Id. § 1182(a)(3). In addition, INA § 212(a)(6) includes provisions relating to entering the United States without authorization and alien smuggling, which may be subject to separate criminal sanction. See id. § 1182(a)(6)(A)(i), (E)(i); id. §§ 1324 (crime of unlawful entry), 1325(a) (criminal offenses related to alien smuggling and harboring).

Id. § 1182(a)(2).

Id. § 1227(a)(2). Aliens who were inadmissible at the time of their entry to the United States because of the criminal grounds mentioned above (among other grounds) are also removable. Id. § 1227(a)(1)(A). Other provisions of INA § 237 also address criminal conduct, but they are not listed within § 237(a)(2). For example, INA § 237 covers alien smuggling, marriage fraud, falsification of documents, terrorist activities, genocide, and acts of torture, which may be subject to separate criminal sanction. Id. § 1227(a)(1)(E), (a)(1)(G), (a)(3)(B), (a)(4).

See e.g., Lopez-Molina v. Ashcroft, 368 F.3d 1206, 1209 (9^th Cir. 2004) (observing that INA § 212(a)(2)(C)'s ground of inadmissibility for drug trafficking "does not require a conviction in order for the alien to be deemed removable," and only requires a "reason to believe" that the alien has been involved in drug trafficking).

See, e.g., In re Ajami, 22 I. & N. Dec. 949, 950 (BIA 1999) ("We have observed that the definition of a crime involving moral turpitude is nebulous."); De Leon v. Lynch, 808 F.3d 1224, 1228 (10^th Cir. 2015) ("The phase 'crime involving moral turpitude' is not defined in the INA; instead, its contours have been shaped through interpretation and application by the Attorney General, the Board [of Immigration Appeals], and federal courts. It is perhaps the quintessential example of an ambiguous phrase.") (internal quotation marks and citation omitted); Brian C. Harms, Redefining "Crimes of Moral Turpitude": A Proposal to Congress, 15 Geo. Immgr. L.J. 259, 259-60 (2001) ("No court has been able to define with clarity what 'crimes involving moral turpitude' means."); Christina LaBrie, Lack of Uniformity in the Deportation of Criminal Aliens, 25 N.Y.U. Rev. L. & Soc. Change 357, 362 (1999) ("Because the classification 'crimes of moral turpitude' is not clearly defined in the INA, courts have struggled to create a definition.") The term "moral turpitude" first appeared in federal immigration law in 1891. See Act of March 3, 1891, ch. 551, 26 Stat. 1084; see also Arias v. Lynch, 834 F.3d 823, 831 (7^th Cir. 2016) (Posner, J., concurring); Harms, supra at 262.

See Cabral v. INS, 15 F.3d 193, 194-95 (1^st Cir. 1994).

See id. at 195; see also Estrada-Rodriguez v. Lynch, 825 F.3d 397, 403 (8^th Cir. 2016).

Matter of Zaragoza-Vaquero, 26 I. & N. Dec. 814, 815 (BIA 2016); see also Ajami, 22 I. & N. Dec. at 950 (collecting BIA decisions containing definition of moral turpitude).

Matter of Awaijane, 14 I. & N. Dec. 117, 118-19 (BIA 1972); see also Avendano v. Holder, 770 F.3d 731, 734 (8^th Cir. 2014) (noting that the court applies the BIA's "'longstanding general definition' of a crime involving moral turpitude, which included 'acts accompanied by 'a vicious motive or a corrupt mind''").

See Zaragoza-Vaquero, 26 I. & N. Dec. at 816; In re Kochilani, 24 I. & N. Dec. 128, 130-31 (BIA 2007) ("It is true that crimes that have a specific intent to defraud as an element have always been found to involve moral turpitude, but we have also found that certain crimes are inherently fraudulent and involve moral turpitude even though they can be committed without a specific intent to defraud."); Jordan v. De George, 341 U.S. 223, 229 (1951) ("[F]raud has consistently been regarded as such a contaminating component in any crime that American courts have, without exception, included such crimes within the scope of moral turpitude."); Palma-Martinez v. Lynch, 785 F.3d 1146, 1148 n.1 (7^th Cir. 2015) ("Crimes involving fraud have always been considered crimes of moral turpitude.").

Matter of Silva-Trevino [hereinafter Silva-Trevino I], 24 I. & N. Dec. 687, 693 (A.G. 2008). See 8 C.F.R. § 1003.1(h)(1)(i) (providing that the Attorney General may direct the BIA to refer cases to him "for review of [the BIA's] decision"); Matter of E-L-H-, 23 I. & N. Dec. 814, 825 (BIA 2005) (noting that "the Attorney General retains ultimate authority over the meaning of immigration laws and regulations"); Matter of D-J-, 23 I. & N. Dec. 572, 575 (BIA 2003) (stating that, when the Attorney General reviews BIA decisions, "the delegated authorities of the IJ and BIA are superseded and [the Attorney General] [is] authorized to make the determinations based on [his] own conclusions on the facts and the law.").

Silva-Trevino I, 24 I. & N. Dec. at 706 (ruling that indecency with a child in violation of a Texas statute constituted a crime involving moral turpitude).

Matter of Silva-Trevino, 26 I. & N. Dec. 826, 834 (BIA 2016) [hereinafter Silva-Trevino III] ("To involve moral turpitude, a crime requires two essential elements: reprehensible conduct and a culpable mental state"); see Bobadilla v. Holder, 679 F.3d 1052, 1054 (8^th Cir. 2012) (observing that the BIA's "basic definition" of a crime involving moral turpitude "has generated little if any disagreement by reviewing circuit courts"). While the BIA in Silva-Trevino III adopted a definition for a "crime involving moral turpitude," the litigation in that case was centered on the extent to which an adjudicator may consider the factual evidence underlying a criminal conviction in order to assess whether an alien was convicted of a crime involving moral turpitude. See Silva-Trevino III, 26 I. & N. Dec. at 830; Matter of Silva-Trevino, 26 I. & N. Dec. 550, 550-51 (A.G. 2015) [hereinafter Silva-Trevino II]; Silva-Trevino I, 24 I. & N. Dec. at 688-90.

8 U.S.C. § 1101(a)(43).

Id.

See Felony, Black's Law Dictionary (defining "felony" as a "serious crime usu[ally] punishable by imprisonment for more than one year or by death") (10^th ed. 2014); Lopez v. Gonzales, 549 U.S. 47, 52-60 (2006) (analyzing, for the purposes of determining whether a particular crime is an aggravated felony under the INA, "the proper understanding of conduct treated as a felony by the State that convicted a defendant of committing it, but as a misdemeanor under the [Controlled Substances Act]").

8 U.S.C. § 1101(a)(43).

Id. § 1101(a)(43).

Id. § 1101(a)(43)(U).

Id. § 1227(a)(2)(A)(iii).

Id. § 1182(a)(9)(A).

See id. §§ 1158(b)(2) (barring aliens convicted of an aggravated felony from asylum), 1229b(a)(3) (barring LPRs convicted of an aggravated felony from cancellation of removal), 1229b(b)(1)(C) (barring non-LPRs from cancellation of removal if they have been convicted of certain enumerated offenses including aggravated felonies), 1229c(b)(1)(C) (barring aliens from voluntary departure if they have aggravated felony convictions), 1231(b)(3)(B) (providing that an alien who has been convicted of an aggravated felony for which the term of imprisonment is at least five years is statutorily ineligible for withholding of removal).

See id. §§ 1229b(b)(1)(B) (requiring showing of good moral character for at least ten years to qualify for cancellation of removal and adjustment of status for nonpermanent residents), 1229b(b)(2)(A)(iii) (requiring showing of good moral character for at least three years to qualify for cancellation of removal and adjustment of status for aliens who have been battered or subjected to extreme cruelty); 1229c(b)(1)(B) (requiring good moral character for at least five years to be eligible for voluntary departure).

See id. § 1427 (requiring showing of good moral character for at least five years preceding date of application for naturalization, but not precluding USCIS from considering applicant's conduct and acts at any time before that period).

Id. § 1101(f).

Id. § 1101(f) ("The fact that any person is not within any of the foregoing classes shall not preclude a finding that for other reasons such person is or was not of good moral character.").

Id. § 1103(g); 8 C.F.R. § 1240.1(a)(1)(ii).

6 U.S.C. § 271(b); 8 U.S.C. § 1103(a)(1); 8 C.F.R. §§ 2.1, 103.2.

While this report describes some of the principal avenues of relief for aliens who may be subject to removal, it does not provide an exhaustive list of all immigration-related relief.

As discussed in the summary of this report, supra at 2, the Homeland Security Act dismantled the former INS, created DHS, and transferred many of the Attorney General's immigration administration responsibilities to the DHS Secretary; DHS, through USCIS, has the authority to adjudicate and approve applications for certain forms of relief such as adjustment of status. 6 U.S.C. § 271(b); 8 U.S.C. § 1103(a)(1); 8 C.F.R. §§ 2.1, 103.2.

8 U.S.C. § 1182(h).

Id.

Id. § 1182(h)(1)(A).

Id. § 1182(h)(1)(B).

Id. § 1182(h)(1)(C); VAWA, P.L. 103-322. VAWA, as relevant here, allows an alien who is the spouse or child of a U.S. citizen or LPR, and who has been battered or subject to extreme cruelty by the U.S. citizen or LPR spouse or parent, to apply for LPR status without the involvement of the abusive relative. See 8 U.S.C. §§ 1154(a)(1)(A), 1186a(c)(4)(C), 1229b(b)(2).

8 U.S.C. § 1182(h). This bar also applies to aliens who admit committing acts that constitute murder or criminal acts involving torture (or an attempt or conspiracy to commit those offenses). Id.

Id. Initially, the BIA interpreted this bar to apply to all LPRs who have been convicted of aggravated felonies (or otherwise failed to accrue the seven years of continuous residence), regardless of the manner in which they acquired their LPR status – in other words, the bar applied to both aliens who were initially admitted into the United States as LPRs and aliens who later adjusted their status to LPRs post-entry. Matter of Rodriguez, 25 I. & N. Dec. 784, 789 (BIA 2012); Matter of Koljenovic, 25 I. & N. Dec. 219, 224-25 (BIA 2010). The majority of the federal circuit courts of appeals disagreed with this interpretation and held that the bar applies only to aliens who were initially admitted as LPRs. Medina-Rosales v. Holder, 778 F.3d 1140, 1145 (10^th Cir. 2015); Husic v. Holder, 776 F.3d 59, 66 (2d Cir. 2015); Stanovsek v. Holder, 768 F.3d 515, 517 (6^th Cir. 2014); Negrete-Ramirez v. Holder, 741 F.3d 1047, 1053-54 (9^th Cir. 2014); Papazoglou v. Holder, 725 F.3d 790, 794 (7^th Cir. 2013); Hanif v. Att'y Gen. of the United States, 694 F.3d 479, 487 (3d Cir. 2012); Bracamontes v. Holder, 675 F.3d 380, 389 (4^th Cir. 2012); Lanier v. United States Att'y Gen., 631 F.3d 1363, 1366-67 (11^th Cir. 2011); Hing Sum v. Holder, 602 F.3d 1092, 1101 (9^th Cir. 2010); Martinez v. Mukasey, 519 F.3d 532, 544 (5^th Cir. 2008). But see Roberts v. Holder, 745 F.3d 928, 932-33 (8^th Cir. 2014) (deferring to BIA's interpretation that § 212(h) bar applies to LPRs regardless of the manner in which they acquired LPR status). Ultimately, "[g]iven the overwhelming circuit court authority in disagreement" with its prior rulings, the BIA revisited the issue in Matter of J-H-J-, and held that the § 212(h) bar applies only to aliens who entered the United States as LPRs. Matter of J-H-J-, 26 I. & N. Dec. 563, 564-65 (BIA 2015).

See 8 U.S.C. § 1101(a)(15) (listing classes of nonimmigrants).

Id. § 1182(d)(3)(A). The Seventh Circuit, however, has ruled that an alien could apply for a nonimmigrant visa waiver even after she was already in removal proceedings, on the grounds that the government's "ineffective screening methods" prevented the consular officer who had issued the alien's nonimmigrant visa from discovering that the alien was inadmissible and would need a waiver to overcome her inadmissibility, and the alien, who was detained upon arriving at Chicago O'Hare International Airport, was still seeking admission into United States at the time of her removal proceedings. Atunnise v. Mukasey, 523 F.3d 830, 838-39 (7^th Cir. 2008).

8 U.S.C. § 1182(d)(3)(A). In addition, DHS, in consultation with the Attorney General and the State Department (or the State Department, in consultation with the Attorney General and DHS) may allow the admission of nonimmigrants who are inadmissible on the basis of terrorist activities in certain limited circumstances. Id. § 1182(d)(3)(B).

Id. § 1229b(a), (b).

Id. § 1229b(e)(1).

Id. § 1229b.

Id. § 1229b(a). Previously, under former INA § 212(c), the Attorney General could grant discretionary relief to an LPR subject to deportation proceedings if he had "a lawful unrelinquished domicile of seven consecutive years." 8 U.S.C. § 1182(c) (1995). Notably, § 212(c) relief was available to an LPR even if he had been convicted of an aggravated felony, as long as he did not serve a term of imprisonment of at least five years. Id. Ultimately, § 212(c) was repealed by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) in favor of the new cancellation of removal provision (which categorically bars relief to aliens convicted of any aggravated felony). See IIRIRA, P.L. 104-208, § 304, 110 Stat. 3009 (1996). However, in INS v. St. Cyr, the Supreme Court ruled that § 212(c) relief remained available to aliens whose criminal convictions resulted from plea agreements and who would have been eligible for § 212(c) relief at the time of their plea. 533 U.S. 289, 326 (2001). Therefore, although § 212(c) relief has been superseded by statute, there is a small (and decreasing) category of aliens who may still be eligible for such relief.

8 U.S.C. § 1229b(b).

Id. § 1229b(a). An LPR with an aggravated felony conviction will be barred from cancellation of removal even if he has not been charged and found removable based on the aggravated felony conviction. See Becker v. Gonzales, 473 F.3d 1000, 1002 (9^th Cir. 2007) ("A conviction for an aggravated felony precludes eligibility even absent a charge and finding of removability on that ground.").

8 U.S.C. § 1229b(b). The BIA has held that this criminal bar applies to any offense described within INA §§ 212(a)(2), 237(a)(2), or 237(a)(3), regardless of whether the alien was charged with removal as an inadmissible alien (§ 212) or a deportable alien (§ 237). Matter of Almanza-Arenas, 24 I. & N. Dec. 771, 776 (BIA 2009); see also Coyomani-Cielo v. Holder, 758 F.3d 908, 915 (7^th Cir. 2014) (upholding BIA's interpretation); Gonzalez-Gonzalez v. Ashcroft, 390 F.3d 649, 652 (9^th Cir. 2004) ("The plain language of [8 U.S.C.] § 1229b indicates that it should be read to cross-reference a list of offenses in three statutes, rather than the statutes as a whole."). Further, a non-permanent resident seeking cancellation of removal cannot receive a waiver of the criminal conviction bar under INA § 212(h). See Matter of Bustamante, 25 I. & N. Dec. 564, 567 (BIA 2011) (explaining that § 212(h) waives grounds of inadmissibility only arising from a conviction and other actions involving criminal conduct but does not waive recognition of the fact of a conviction itself); Guerrero-Roque v. Lynch, 845 F.3d 940, 943 (9^th Cir. 2017) (same); Barma v. Holder, 640 F.3d 749, 752-53 (7^th Cir. 2011) (same).

8 U.S.C. § 1229b(b). The period for good moral character is calculated backward from the date on which the application is finally resolved before the immigration judge or the BIA. See Matter of Ortega-Cabrera, 23 I. & N. Dec. 793, 798 (BIA 2005) ("[W]e conclude that, in line with long-standing practice, an application for cancellation of removal remains a continuing one for purposes of evaluating an alien's moral character, and that the 10-year period during which good moral character must be established ends with the entry of a final administrative decision."); Rodriguez-Avalos v. Holder, 788 F.3d 444, 455 (5^th Cir. 2015) (deferring to the BIA's interpretation of the good moral character requirement); Duron-Ortiz v. Holder, 698 F.3d 523, 527-28 (7^th Cir. 2012) (same).

8 U.S.C. § 1101(f). A non-LPR alien applying for cancellation of removal as a battered spouse or child has to show good moral character for at least three years immediately preceding the date of the application. Id. § 1229b(b)(2)(A)(iii). Notably, for a battered spouse or child seeking cancellation, an act or conviction that does not otherwise bar the alien from relief will not foreclose a finding of good moral character if the Attorney General determines that the act or conviction "“ was connected to the alien'’s having been battered or subjected to extreme cruelty"cruelty” and that a waiver is otherwise warranted. Id. § 1229b(b)(2)(C). 901229b(b)(2)(C).

Id. § 1229c(a)(1), (a)(2)(A), (b)(1), (b)(2). If the alien fails to depart within the sixty -day period, the alien will be ineligible ineligible for certain forms of relief for ten years. Id. §  1229c(d)(1). An exception exists for aliens seeking to exercise their statutory right to file a motion to reopen the removal proceedings. Id. §  1229a(c)(7); Dada v. Mukasey, 554 U.S. 1, 5- ̶ 6 (2008). In that case, the alien may withdraw the motion for voluntary departure within the sixty days to pursue the motion to reopen. Dada, 554 U.S. at 5-6.

̶ 6. 91 8 U.S.C. §  § 1229c(a)(1), (a)(2); see also David S. Rubenstein, Restoring the Quid Pro Quo of Voluntary Departure, 44 Harv. J. on LegisHARV. J. ON LEGIS. 1, 1-2 (2007). 92 8 U.S.C. § . 1, 1-2 (2007).

8 U.S.C. § 1229c(a)(1). An arriving alien seeking admission into the United States is not eligible for this form of voluntary departure. Id. § 1229c(a)(4).

93 Id. § 1229c(a)(1). EOIR regulations are somewhat more stringent, precluding the granting of voluntary departure to aliens described in any of the security-related grounds found in INA § 237(a)(4), not simply those concerning terrorism. 8 C.F.R. § 1240.36(b)(1)(i)(E).

94 8 U.S.C. §  § 1229c(b)(1). 951229c(b)(1).

Id. See also Griffiths v. INS, 243 F.3d 45, 56 (1^st1st Cir. 2001) (ruling that alien must show good moral character for 5- -year period "“immediately preceding"” his application for voluntary departure, noting that it is "immaterial"“immaterial” whether the alien accrued five years of good moral character while his removal proceedings were pending). 96 8 U.S.C. § pending).

8 U.S.C. § 1231(b)(3).

1231(b)(3). 97 Applications for withholding of removal are typically considered only in removal proceedings before an immigration judge. 8 C.F.R. §§ §§ 208.16(a), 1208.16(a).

Lozano-Zuniga v. Lynch, 832 F.3d 822, 826-27 (7^th Cir. 2016); see also INS v. Stevic, 467 U.S. Congressional Research Service 18 Immigration Consequences of Criminal Activity wil be threatened upon return to his country” (i.e., that “it appears more likely than not that he wil suffer persecution if removed”).98 Certain conduct renders an alien ineligible to obtain withholding of removal. Proscribed conduct includes not only the commission of certain crimes, but also activity that, while not clearly identified as a criminal offense (e.g., the commission of genocide), is typical y subject to criminal sanction. An alien is ineligible for withholding of removal, if, among other things, the alien 1. participated in Nazi persecution, genocide, or the commission of any act of torture or extrajudicial kil ing;99 2. ordered, incited, assisted, or otherwise participated in the persecution of an individual on account of a protected ground;100 3. is “a danger to the community of the United States” as a result of having been convicted of “a particularly serious crime”;101 4. committed a serious nonpolitical crime outside the United States before arriving in the United States;102 5. or is otherwise a danger to the security of the United States.103 An alien is considered to have committed a “particularly serious crime” if, among other things, the alien has been convicted of an aggravated felony (or felonies) for which the aggregate term of imprisonment is at least five years.104 However, the Attorney General is authorized to determine, on a case-by-case basis, that an alien has been convicted of a particularly serious crime regardless of the length of sentence imposed for an offense.105 98 Lozano-Zuniga v. Lynch, 832 F.3d 822, 826 ̶ 27 (7th Cir. 2016); see also INS v. Stevic, 467 U.S. 407, 413 (1984) (analyzing the former INA § 243(h) governing withholding of removal); Cambara-Cambara v. Lynch, 837 F.3d 822, 824 (8^th8th Cir. 2016); Hernandez-Lima v. Lynch, 836 F.3d 109, 113 (1^st1st Cir. 2016); Gonzalez v. U.S. Attorney Gen., 820 F.3d 399, 403 (11^th11th Cir. 2016); Htun v. Lynch, 818 F.3d 1111, 1121 (10^th10th Cir. 2016); Zheng v. Lynch, 819 F.3d 287, 294 (6^th6th Cir. 2016); Sesay v. Attorney Gen. of U.S., 787 F.3d 215, 219 (3d Cir. 2015); Hernandez -Avalos v. Lynch, 784 F.3d 944, 948 n.4 (4^th4th Cir. 2015). 99 8 U.S.C. §§ 1227(a)(4)(D), 1231(b)(3)(B). 100 Cir. 2015).

8 U.S.C. §§ 1231(b)(3)(B), 1227(a)(4)(D).

Id. § 1231(b)(3)(B)(i).

Id. § 1231(b)(3)(B)(i). 101 Id. § 1231(b)(3)(B)(ii).

102 Id. § 1231(b)(3)(B)(iii).

103 Id. § 1231(b)(3)(B)(iv). TheT he Attorney General has reasonable grounds to believe an alien is a danger to the security of the United States if the alien has participated in terrorist activities or has been associated with a terrorist organization. 8 U.S.C. §§ 1182(a)(3)(B), 1182(a)(3)(F), 1227(a)(4)(B), 1231(b)(3)(B).

104 Id. § 1231(b)(3)(B).

105 Id. TheT he BIA has held that, under this catch-all provision, the Attorney General is not limited to considering aggravated felony offenses, and may designate other offenses (including non non-aggravated felonies) as particular serious crimes through case-by-case adjudication. Matter of N-A-M-, 24 I. & N. Dec. 336, 338-41 (BIA 2007). Several federal appellate courts have adopted this interpretation. See Bastardo-Vale v. Att ’y Gen. of the United States, 934 F.3d 255, 266 ̶ 67 (3d Cir. 2019); Flores v. Holder, 779 F.3d 159, 167 (2d Cir. 2015); Delgado v. Holder, 648 F.3d 1095, 1105 (9^th(9th Cir. 2011); Gao v. Holder, 595 F.3d 549, 555 (4^th4t h Cir. 2010); N-A-M v. Holder, 587 F.3d 1052, 1056 (10^th10th Cir. 2009); Ali v. Achim, 468 F.3d 462, 470 (7^th7th Cir. 2006). Cir. 2006). But see Alaka v. Att'y Gen. of the United States, 456 F.3d 88, 105 (3d Cir. 2006) (holding that an offense must be an aggravated felony in order to qualify as a "particularly serious crime"). In determining on a case-by-case basis whether an offense is a "“particularly serious crime,"” the Attorney General considers "“the nature of the conviction, the type of sentence imposed, and the circumstances and underlying facts of the conviction."” Matter of N-A-M-, 24 I. & N. Dec. at 342.

Congressional Research Service 19 Immigration Consequences of Criminal Activity Convention Against Torture An alien who fears torture in the country of his removal may apply for protection under the Convention Against Torture (CAT).106 There are two forms of CAT protection: withholding of removal and deferral of removal.107 To qualify for CAT-based relief, an alien must show that it is more likely than not that he would be tortured by the government or a person acting with the consent or acquiescence of that government in the country of removal.108 If the Attorney General109 determines that the alien has met that burden, the alien may not be removed to the country of removal, but DHS may stil remove the alien to a different country where he would not more likely than not face torture.110 An alien who establishes eligibility for withholding of removal under CAT may not be afforded its protection if he fal s within one of the criminal-related grounds that bar applications for withholding of removal under INA § 241(b)(3).111 Nevertheless, deferral of removal under CAT is available to all aliens who would likely face torture if removed to a particular country, regardless of whether they have been convicted of a crime.112 Unlike withholding of removal under CAT, deferral of removal is a more temporary form of protection that may be terminated if (1) DHS produces evidence that the alien might not be tortured, and, following a hearing, the alien fails to meet his burden of proving that he likely faces torture; or (2) U.S. authorities obtain adequate assurances from the government of the country of removal that the alien would not be tortured.113 Asylum INA § 208 al ows aliens to apply for asylum within one year of entering the United States, regardless of the alien’s immigration status.114 Once in the United States, an alien may affirmatively apply for asylum with USCIS, or, alternatively, the alien may defensively apply for asylum as a form of relief from removal after removal proceedings have been initiated.115 An alien may be eligible for asylum if unable or unwil ing to return to his or her country because of past persecution or a wel -founded fear of future persecution on account of race, religion, 106 See Foreign Affairs Reform and Restructuring Act of 1998, P.L. 105-277, § 2242, 112 Stat. 2681, 2681-821 (1998) (implementing the United Nations Convention Against TortureT orture and Other Cruel, Inhuman or Degrading Treatment T reatment or Punishment). 107 8 C.F.R. §§ Punishment).

8 C.F.R. §§ 1208.16(c), 1208.17(a).

Id. §§ 1208.16(c), 1208.17(a). 108 Id. §§ 1208.16(c)(2), 1208.18(a)(1).

CAT 109 CAT protection claims are typically considered only in removal proceedings before an immigration judge. Id. §§ 208.16(a), 1208.16(a).

110 Id. §§ 1208.16(c)(4), (f). See Huang v. Ashcroft, 390 F.3d 1118, 1121 n. 2 (9^th9th Cir. 2004) ("“[N]either withholding nor deferral of removal prevents the government from removing an alien to a third country other than thet he country to which removal was withheld or deferred").

”). 111 8 U.S.C. § § 1231(b)(3)(B); 8 C.F.R. §§ 1208.16(c)(4), (d)(2).

112 8 C.F.R. §§ §§ 1208.16(c)(4), 1208.17(a).

113 Id. §§ 1208.17(d), (f).

1208.17(d), (f). 114 8 U.S.C. § § 1158(a)(1), (a)(2)(B). An asylum applicant may file his application more than one year after arriving in the United States if he establishes (1) changed circumstances materially affecting his eligibility for asylum, or (2) extraordinary circumstances relating to the delay in timely filing the application. Id. § 1158(a)(2)(D); 8 C.F.R. § § 208.4(a)(4), (5). 115 See 8 C.F.R. § 208.4(a)(4), (5).

See 8 C.F.R. § 208.2; Regina Germain, Seeking Refuge: The U.S. Asylum Process, 35-OCT Colo. Law COLO. LAW. 71, 74- ̶ 75 (2006). Applying for asylum is different from applying for refugee status, which occurs before the alien arrives in the United States. For more information on the U.S. refugee program and policies, see CRS CRS Report RL31269, Refugee Admissions and ResettlementAdm issions and Resettlem ent Policy, by Andorra Bruno.

8 U.S.C. §§ Congressional Research Service 20 Immigration Consequences of Criminal Activity nationality, political opinion, or membership in a particular social group.116 In other words, the Attorney General or DHS has the discretion to grant asylum to those aliens who can establish that they suffered past persecution in their home country or have a wel -founded fear of future persecution in that country on account of belonging to a protected group.117 The wel -founded fear standard for asylum is less demanding than the clear probability standard for withholding of removal.118 Certain criminal activity may preclude an alien from receiving a grant of asylum. As in withholding of removal, asylum may not be granted to an alien who 1. is a danger to the United States community because of a conviction for a particularly serious crime;119 2. has committed a serious nonpolitical crime outside the United States before arriving in the country;120 3. has participated in the persecution of a person in a protected group;121 4. has engaged in or is associated with terrorist activities;122 5. is otherwise a danger to the security of the United States.123 Unlike withholding of removal, a conviction for any aggravated felony is considered a particularly serious crime in asylum determinations, regardless of the term of criminal incarceration.124 Refugee Status Under INA § 207, an alien may apply for refugee status from outside the United States.125 As with asylum, a person seeking refugee status must show that he suffered past persecution or has a wel - founded fear of future persecution on account of his race, religion, nationality, membership in a particular social group, or political opinion.126 DHS has the discretion to admit a refugee who (1) has not been firmly resettled in another country, (2) is determined to be “of special 116 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1). 1171101(a)(42)(A), 1158(b)(1).

Id. § 1158(b)(1)(A); Legal v. Lynch, 838 F.3d 51, 54 (1^st1st Cir. 2016). 118 See T ang Cir. 2016).

See Tang v. Lynch, 840 F.3d 176, 183 (4^th4th Cir. 2016); Gaye v. Lynch, 788 F.3d 519, 533 (6^th6th Cir. 2015); Rodas- -Orellana v. Holder, 780 F.3d 982, 986-87 (10^th ̶ 87 (10th Cir. 2015); Vanegas-Ramirez v. Holder, 768 F.3d 226, 237 (2d Cir. 2014). 119 8 U.S.C. § 2014).

8 U.S.C. § 1158(b)(2)(A)(ii).

1158(b)(2)(A)(ii). 120 Id. § 1158(b)(2)(A)(iii).

121 Id. § 1158(b)(2)(A)(i).

122 Id. § 1158(b)(2)(A)(v).

123 Id. § 1158(b)(2)(A)(iv).

124 Id. § 1158(b)(2)(B)(i). In addition, for purposes of asylum, additional crimes may be defined as " as “particularly serious crimes" or "crimes” or “serious nonpolitical crimes"” by regulation. 8 U.S.C. § 1158(b)(2)(B)(ii). Further, courts have held that the Attorney General may designate a specific offense as a "“ particularly serious crime"” through case-by-case adjudication. See Bastardo-Vale v. Att ’y Gen. of the United States, 934 F.3d 255, 264 ̶ 65 (3d Cir. 2019); Delgado v. Holder, 648 F.3d 1095, 11057 (9^th1105 (9th Cir. 2011); Gao v. Holder, 595 F.3d 549, 556-57 (4^th ̶ 57 (4th Cir. 2010); Nethagani v. Mukasey, 532 F.3d 150, 156 (2d Cir. 2008); Ali v. Achim, 468 F.3d 462, 469 (7^th7th Cir. 2006). For information more generally about asylum, see CRS Report R45539, Immigration: U.S. Asylum Policy, by Andorra Bruno. 125 8 U.S.C. § Cir. 2006).

8 U.S.C. § 1157(c)(1).

Id. § 1101(a)(42).

Id. § 1157(c)(1).

Id. § 1157(c)(3). In addition, waivers may not be granted to refugee applicants who are inadmissible on the basis of security and related grounds 1157(c)(1). 126 Id. § 1101(a)(42). Congressional Research Service 21 Immigration Consequences of Criminal Activity humanitarian concern to the United States,” and (3) is general y admissible as an immigrant.127 Certain inadmissibility grounds, however, do not apply to an alien seeking admission as a refugee, and DHS may waive most otherwise applicable grounds of inadmissibility under INA § 212, including those related to criminal offenses (except for drug trafficking offenses) if the agency determines that a waiver is warranted “for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.”128 An alien who has been admitted as a refugee may adjust to LPR status after being physical y present in the United States for at least one year.129 In adjudicating the adjustment application of a refugee, the relevant immigration authorities must determine whether, among other things, the alien is admissible for permanent residence.130 At this stage, DHS has the authority to waive most criminal grounds of inadmissibility—other than drug trafficking—under the same standard that applies to the inadmissibility waivers for refugees seeking admission (humanitarian purposes, family unity, or public interest).131 Adjustment of Status Both the DHS Secretary and the Attorney General have the discretion to adjust the status of certain nonimmigrants and other categories of aliens if certain criteria are met.132 The primary statute governing adjustment of status is INA § 245. But nearly al inadmissibility grounds—including al of the criminal grounds listed in INA § 212(a)(2)—preclude an alien from adjusting status under that section.133 However, as discussed previously, INA § 212(h) grants the Attorney General and the DHS Secretary discretion to waive the application of specified criminal inadmissibility grounds in certain circumstances.134 Therefore, the presence of a criminal ground of inadmissibility does not always foreclose an alien from adjusting status. 127 Id. § 1157(c)(1). 128 Id. § 1157(c)(3). In addition, waivers may not be granted to refugee applicants who are inadmissible on the basis of security and related grounds (e.g., seeking to enter the United States to engage in espionage or any other unlawful activity); terrorist activities; foreign policy concerns; or participation in Nazi persecution, genocide, or acts of torture or extrajudicial killings. Id. (referencing 8 U.S.C. § 1182(a)(2)(C), (a)(3)(A), (a)(3)(B), (a)(3)(C), (a)(3)(E)).

129 Id. § 1159(a). Likewise, an alien who has been granted asylum in the United States may seek adjustment to LPR status one year after being granted asylum. Id. § 1159(b). 130 Id. §Id. § 1159(b).

Id. §§ 1159(a)(2), 1159(b)(5).

1159(a)(2), 1159(b)(5). 131 Id. § 1159(c). As with refugee admissions under INA § 1157(c)(3 ), a waiver is also unavailable to aliens who are inadmissible are inadmissible on security and related grounds, terrorist grounds, foreign policy grounds, or on the basis of Nazi persecution, genocide, or the commission of any act of torture or extrajudicial killing. Id. (referencing 8 U.S.C. §§ § 1182(a)(2)(C), (a)(3)(A), (a)(3)(B), (a)(3)(C), (a)(3)(E)).

132 INA §§ 245(a), 245(i); 8 U.S.C. §§ § 1255(a), 1255(i).

(i). 133 8 U.S.C. §§ § 1255(a), 1255(i); see also id. § 1182(a) (grounds of inadmissibility).

134 Id. § 1182(h); see also, Palma-Martinez v. Lynch, 785 F.3d 1147, 1149 (7^th7th Cir. 2015) ("“Under INA § 212(h) the Attorney General may waive the ground of inadmissibility applicable to Palma–Martinez (the crimecrime of moral turpitude) if the denial of admission would result in extreme hardship to a lawfully resident family member and he is applying or reapplying for a visa, admission, or an adjustment of status.”or an adjustment of status."); Roberts v. Holder, 745 F.3d 928, 931 (8^th8th Cir. 2014) ("(“As the BIA noted, Roberts must receive a § 1182(h) waiver waiver of his aggravated felony conviction before he may adjust his status."adjust his status.”). But as previously discussed, no waiver is available for an alien convicted of murder or criminal acts involving torture, or an attempt or conspiracy to commit such crimes; nor is a waiver available for an alien who has previously been admitted as an LPR if, since the date of admission, the alien was convicted of an aggravated felony or the alien has not lawfully resided resided continuously in the United States for at least seven years immediately preceding the commencement of removal proceedings against the alien. 8 U.S.C. § § 1182(h). Congressional Research Service 22 Immigration Consequences of Criminal Activity Temporary Protected Status Under INA § 244, the Attorney General or DHS may grant Temporary Protected Status (TPS) relief to certain aliens from designated countries that are (1) afflicted with ongoing armed conflict posing a serious threat to the nationals of those countries; (2) disrupted by natural disasters or an epidemic; or (3) otherwise experiencing “extraordinary and temporary conditions in the foreign state that prevent aliens who are nationals of the state from returning to the state in safety.”135 However, certain criminal activity can make an alien ineligible to receive TPS relief. Although the relevant immigration authorities have the discretion to waive most inadmissibility grounds in granting TPS relief,136 they may not waive inadmissibility for aliens who have 1. committed a crime involving moral turpitude other than a purely political offense (including an attempt or conspiracy to commit such a crime);137 2. violated any federal, state, or foreign drug law (including an attempt or conspiracy to commit such a violation); 3. engaged in drug trafficking (other than a single offense of simple possession of 30 grams or less of marijuana); or 4. been convicted of two or more offenses (other than purely political offenses) for which the aggregate sentences were five or more years of imprisonment.138 In addition to those nonwaivable criminal inadmissibility grounds, the relevant immigration authorities may not grant TPS relief to an alien who (1) has been convicted of any felony or two or more misdemeanors committed in the United States; or (2) fal s within the categories of aliens who are statutorily ineligible for asylum, as described above.139 Naturalization: Impact of Criminal Activity In general, LPRs may naturalize as U.S. citizens after residing continuously in the United States for five years and satisfying other qualifications.140 But to be eligible, an LPR (among other things) must have been a person of good moral character for at least five years preceding his or her application for naturalization.141 As discussed above, the INA provides a nonexhaustive list of 135 8 U.S.C. § 1182(h).

8 U.S.C. § 1254a(a), (b). For more information on TPS, including the designated countries from which aliens may receive TPST PS, see CRS Report RS20844, TemporaryTem porary Protected Status: Overview and Current Issues and Deferred Enforced Departure, by Jill H. Wilson. 136 8 U.S.C. § Wilson.

8 U.S.C. § 1254a(c)(2)(A)(ii). A waiver may be granted "“for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest."” Id. 137 Id.

Exceptions exist for an alien who committed only one crime if (1) the crime was committed before the alien turned eighteen and the crime was committed (and the alien released from confinement) more than five years before applying for admission; or (2) the maximum penalty possible for the crime committed did not exceed more than one year of imprisonment and, if convicted, the alien was not sentenced to a term of imprisonment of more than six months. Id. § § 1182(a)(2)(A)(ii). 1381182(a)(2)(A)(ii).

Id. § 1254a(c)(2)(A)(iii). Further, a TPSFurt her, a T PS relief applicant cannot receive a waiver of inadmissibility based based on security and related grounds, terrorist activities, and adverse foreign policy reasons; or for participation in Nazi persecution, genocide, and acts of torture or extrajudicial killings. Id. § 1254a(c)(2)(A)(iii)(III).

139 Id. § 1254a(c)(2)(B). 140 Id. § 1427(a). 141 Id. Under DHS Id. § 1254a(c)(2)(B).

Id. § 1427(a).

Id. Under DHS regulations, the agency may consider conduct and acts that occurred before the five -year period if the applicant'’s conduct during the statutory period "“does not reflect that there has been reform of character from an earlier period or if the earlier conduct and acts appear relevant to a determination of the applicant'’s present moral character." 8 C.F.R. § 316.10(a)(2). Further, the statutory period for good moral Congressional Research Service 23 link to page 15 Immigration Consequences of Criminal Activity criminal activity that—if committed during the relevant period—would preclude a finding of good moral character and thus bar an LPR from naturalizing.142 However, some types of criminal activity permanently bar an alien from showing good moral character if they were committed at any time, including a conviction for an aggravated felony.143 The Intersection of Criminal Law and Immigration: Select Legal Issues Immigration proceedings, including those involving the removal of aliens for violating the conditions of their entry or presence in the United States, are civil in nature.144 However, as discussed above, in many cases, the outcome of a criminal case may have immigration consequences, particularly if an alien is convicted of an offense that is specified as a ground for removal. This section examines select legal issues related to criminal proceedings as they relate to immigration law, including the constitutional obligations of criminal attorneys representing alien defendants, what constitutes a “conviction” under the INA, and how adjudicatory bodies determine when a criminal conviction wil trigger immigration consequences. The Duty to Inform about Immigration Consequences from a Criminal Conviction Criminal proceedings involving aliens may carry additional consequences for an alien defendant beyond criminal sanction, including potential y rendering the alien subject to removal from the country. Immigration proceedings are civil, not criminal, and so aliens facing removal charges character.” 8 C.F.R. § 316.10(a)(2). Further, the statutory period for good m oral character includes the period between the examination of the applicant and the administration of the oath of allegiance. Id. § 316.10(a)(1).

142 See supra section, “ "Crimes Affecting “Good Moral Character."”.’” In addition, the DHS regulations include a a separate list of enumerated criminal activity that would preclude a showing of good moral character for naturalization applicants, some of which overlap the conduct referenced in INA § 1101(f). See 8 C.F.R. § 316.10(b).

143 See 8 U.S.C. § 1101(f)(8) (aggravated felony), (f)(9) (Nazi persecution, genocide, acts of torture or extrajudicial killings, or severe violations of religious freedom); 8 C.F.R. § 316.10(b) (1)(i) (murder). For naturalization applicants, an aggravated felony will bar a good moral character finding if the conviction occurred on or after November 29, 1990. 8 C.F.R. § 316.10(b)(1)(ii). Reviewing courts have held that an aggravated felony convictionconvict ion will preclude a showing of good moral character even if the crime was not considered an aggravated felony at the time of the conviction, or the alien had previously been granted discretionary relief from deportation. See Alocozy v. U.S. Citizenship and Immigration Servs., 704 F.3d 795, 797-98 (9^th ̶ 98 (9th Cir. 2012) ("“ There is nothing in this record even remotely suggesting that when a removable alien is granted discretionary relief in the form of a waiver of deportation, the Government waives waives any objection based on the ground for which he was removable to his naturalization as a citizen"”); Chan v. Gantner, 464 F.3d 289, 294 (2d Cir. 2006) ("“We agree with the District Court that no authority supports the proposition that the government is foreclosed by a waiver of deportation from considering a conviction when determining the unrelated question of fitness for naturalization."”); Dar v. Olivares, 956 F. Supp. 2d 1287, 1293- ̶ 99 (N.D. Okla. 2013) (retroactively applying good moral character bar to alien'’s 1994 attemptedatt empted rape conviction even though rape was not added added to the list of aggravated felonies until 1996, and rejecting claim that previous grant of relief under former INA § 212(c) barred USCIS from applying the good moral character bar). However, for naturalization applicants with aggravated felony and murder convictions, the good moral character bar does not apply if the alien "“has received a full and unconditional pardon prior to the beginning of the statutory period,"” and the alien "“demonstrates that reformation and rehabilitation occurred prior to the beginning of the statutory period."” 8 C.F.R. § 316.10(c)(2)(i).

See Zambrano-Reyes v. Holder, 725 F.3d 744, 750 (7^th 144 INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 ̶ 39 (1984) (“A deportation proceeding is a purely civil action to determine eligibility to remain in this country, not to punish an unlawful entry.... T he purpose of deportation is not to punish past transgressions but rather to put an end to a continuing violation of the immigration laws.”). Congressional Research Service 24 Immigration Consequences of Criminal Activity have no Sixth Amendment right to counsel.145 But aliens facing criminal charges in federal and state court do have a constitutional right to effective assistance of counsel.146 This right applies throughout al “critical” stages of criminal proceedings, including pretrial stages when the defendant must make crucial decisions, like whether to plead guilty.147 In Padilla v. Kentucky, the Supreme Court held that the Sixth Amendment guarantee to effective counsel requires a lawyer representing an alien in criminal proceedings to advise the alien client if the offense to which the alien is pleading guilty could result in removal from the United States.148 The Court noted that under current immigration law, removal is “nearly an automatic result for a broad class of noncitizen offenders.”149 Thus, the Court reasoned, “[t]he importance of accurate legal advice for noncitizens accused of crimes has never been more important.”150 Recognizing that “[i]mmigration law can be complex, and ... some members of the bar who represent clients facing criminal charges ... may not be wel versed in it,” the Court added that “[w]hen the law is not succinct and straightforward . . a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.”151 But when the INA is clear about the deportation consequences of a particular crime, the Court admonished, “the duty to give correct advice is equal y clear.”152 What Constitutes a Conviction? Numerous criminal grounds for inadmissibility and deportability require the rendering of a conviction for a particular crime to be applicable. INA § 101(a)(48)(A) provides two definitions 145 See Zambrano-Reyes v. Holder, 725 F.3d 744, 750 (7th Cir. 2013); Contreras v. Attorney Gen. of U.S., 665 F.3d 578, 584 (3d Cir. 2012); Lara-TorresT orres v. Ashcroft, 383 F.3d 968, 973 (9^th9th Cir. 2004). TheT he federal circuit courts are divided divided over whether the due process guarantees in the Fifth Amendment provide aliens with a right to effective assistance of counsel during their removal proceedings. See Contreras, 665 F.3d at 584 & n.3 (collecting cases). And though some courts have held that aliens have a Fifth Amendment right to effective representation during their removal proceedings, there is no right to government appointed counsel in those proceedings. See United States v. Loaisiga, 104 F.3d 484, 485 (1^st1st Cir. 1997) ("There“T here is no constitutional right to appointed counsel in a deportation proceeding. But Congress Congress has provided that a respondent may obtain his own counsel."”); 8 U.S.C. § 1362 (providing that aliens in removal proceedings "“shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose").

U.S. Const”). 146 U.S. CONST., amend. VI (" (“In all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense."”); Gideon v. Wainwright, 372 U.S. 335, 342 (1963) ("“[A] provision of the Bill of Rights which is fundamental and essential to a fair trial,"” like the Sixth Amendment, "“is made obligatory upon the States by the Fourteenth Amendment"”) (internal quotation marks omitted).

147 See Lafler v. Cooper, 566 U.S. 156, 165 (2012); see also Padilla v. Kentucky, 559 U.S. 356, 364 (2010) ("“Before deciding deciding whether to plead guilty, a defendant is entitled to the effective assistance of competent counsel."”) (internal quotation marks and citations omitted); Loden v. McCarty, 778 F.3d 484, 494 (5^th5th Cir. 2015) ("“ The decision to plead guilty is a critical stage of criminal proceedings.").

Padilla, 559 U.S. at 360.

Id. at 366.

Id. at 364.

Id. at 369.

Id. The Supreme Court later ruled ”). 148 Padilla, 559 U.S. at 360. 149 Id. at 366. 150 Id. at 364. 151 Id. at 369; see also Dilang Dat v. United States, 983 F.3d 1045, 1048 ̶ 49 (8th Cir. 2020) (holding that attorney’s conduct in telling defendant that he “could” face immigration consequences that “could” result in deportation, rather than that deportation was virtually certain if he pled guilty to robbery, did not co nstitute ineffective assistance under Padilla). 152 Padilla, 559 U.S. at 369. T he Supreme Court later ruled in Chaidez v. United States that the rule announced in Padilla would not be applied retroactively, meaning that the holding would not apply to aliens whose criminal convictions became final before the Padilla opinion was published. 568 U.S. 342 (2013); see also Williams v. United States, 858 F.3d 708, 717 (1st Cir. 2017) (holding that criminal defendant could not rely on Padilla to claim that his attorney was constitutionally ineffective by failing to advise him of the immigration consequences of pleading guilty to an offense in 2005, before the Padilla decision was issued). Congressional Research Service 25 Immigration Consequences of Criminal Activity for what constitutes a conviction for INA purposes. First, INA § 101(a)(48)(A) defines a conviction as a formal judgment of guilt entered by a court.153 General y, in federal cases, the final judgment ordered by the district judge contains the formal judgment of guilt.154 A state court’s written judgment and sentence would qualify as wel .155 If a conviction is vacated or set aside because of substantive or procedural defects in the criminal proceedings, the conviction no longer qualifies as a “conviction” under INA § 101342 (2013).

INA § 101(a)(48)(A); 8 U.S.C. § 1101(a)(48)(A).

See e.g., Fed. R. Crim. P. 32(k)(1); Berman v. United States, 302 U.S. 211, 212 (1937) ("(a)(48)(A).156 However, a conviction that is vacated or set aside for rehabilitative purposes157 (e.g., under state laws that permit a judge to expunge convictions for simple drug possession) or solely for the purpose of avoiding immigration consequences, stil qualifies as a conviction under the INA.158 The same is true for expunged convictions: INA § 101(a)(48)(A) has been interpreted to exclude expunged convictions, unless the expungement was al owed solely for rehabilitative purposes.159 A second definition of conviction exists for situations in which adjudication of guilt has been withheld: There is also a “conviction” if (1) a judge or jury has found the alien guilty, or the alien pleaded guilty or nolo contendere,160 or the alien has admitted sufficient facts to be found guilty, 153 INA § 101(a)(48)(A); 8 U.S.C. § 1101(a)(48)(A). 154 See e.g., FED. R. CRIM. P. 32(k)(1); Berman v. United States, 302 U.S. 211, 212 (1937) (“Final judgment in a criminal case means sentence. TheT he sentence is the judgment."”); Planes v. Holder, 652 F.3d 991, 995 (9^th9th Cir. 2011) ("(“Under the first definition, a 'conviction'‘conviction’ for purposes of §  1101(a)(48)(A), exists once the district court enters judgment, notwithstanding the availability of an appeal as of right.").

”). 155 See United States v. Saenz-Gomez, 472 F.3d 791, 794 (10^th10th Cir. 2007). TheT he INA'’s definition of "conviction" “conviction” controls regardless of how a state designates a conviction. See, e.g., Gonzalez v. O'’Connell, 355 F.3d 1010, 1018 (7^th 7th Cir. 2004). 156Cir. 2004).

See, e.g., Estrada v. Holder, 611 F.3d 318, 321 (7^th7th Cir. 2010); Alim v. Gonzales, 446 F.3d 1239, 1248 (11^th11th Cir. 2006). 1572006).

For example, some state laws allow a judge to expunge certain convictions for rehabilitative purposes. See e.g., Ariz. Rev. Stat. AnnARIZ. REV. STAT. ANN. § 13-907 (authorizing a judge to set aside a criminal defendant'’s conviction following the completion of probation or sentence, except for convictions for certain serious criminal offenses); Or. Rev. Stat. Ann. OR. REV. STAT. ANN. § 137.225 (permitting a person to request an order setting aside a conviction for certain crimes, such as unlawful possession of a controlled substance, if three years have elapsed since the date of the conviction, and the person has fully complied with the terms of his sentence). Such laws are similar to the provisions of the Federal First Offender Act (FFOA), which permit a federal judge to order first -time simple drug possession offenders to probation without entering a judgment of conviction. 18 U.S.C. § 3607(a). If the defendant successfully completes the period of probation, the judge must dismiss the proceedings against the defendant. Id. Additionally, if the defendant committed the relevant offense before turning twenty-one, the court —at the defendant'’s request —shall expunge the criminal record. Id. § 3607(c). A disposition of a criminal offense under the FFOA "“ shall not be considered a conviction a co nviction for the purpose of a disqualification or a disability imposed by law upon conviction of a crime, or for any other purpose."” Id. § 3607(b). 1583607(b).

See, e.g., Rodriguez v. Att'’y Gen. United States, 844 F.3d 392, 396 (3d Cir. 2016) (distinguishing between convictions vacated on the basis of substantive or procedural defects and convictions vacated for reasons "“such as for rehabilitation or to allow a petitioner to avoid the immigration effects of the conviction"”); Nunez-Reyes v. Holder, 646 F.3d 684, 689-90 (9^th9th Cir. 2011) (holding that "“ the constitutional guarantee of equal protection does not require treating, for immigration purposes, an expunged state conviction of a drug crime the same as a federal drug conviction that has been expunged under the FFOA,"” and assuming, without deciding, that a conviction under the INA includes expunged expunged state convictions) (overruling Lujan-Armendariz v. INS, 222 F.3d 728 (9^th9th Cir. 2000)); Wellington v. Holder, 623 F.3d 115, 120 (2d Cir. 2010) (adopting BIA'’s interpretation that relief from a state conviction for rehabilitative purposes still qualifies as a "conviction" as a “ conviction” under the INA); Pickering v. Gonzales, 465 F.3d 263, 266 (6^th 6th Cir. 2006) (collecting cases); In re Pickering, 231 I. & N. Dec. 621, 624- ̶ 25 (BIA 2003), rev'’d on other grounds, 465 F.3d 263 (6^th6th Cir. 2006) ("“ [W]e find that there is a significant distinction between convictions vacated on the basis of a procedural or substantive defect in the underlying proceedings and those vacated because of post -conviction events, such as rehabilitation or immigration hardships.").

”). 159 See, e.g., Gradiz v. Gonzales, 490 F.3d 1206, 1208 (10^th10th Cir. 2007); Alim, 446 F.3d at 1249.

160 A nolo contendere plea is one in which the defendant does not admit guilt but submits to punishment, nonetheless. See Nolo Contendere, Black's Law DictionaryBLACK’S LAW DICTIONARY; Plea, Black's Law Dictionary, BLACK’S LAW DICTIONARY; Julian A. Cook, III, Crumbs from the Master's Table: The Supreme Court, Pro Se Defendants & the Federal Guilty Plea Process, 81 Notre Dame L. Rev. 1895, 1938 (2006); Mark Gurevich, Justice Dep't's Policy of Opposing Nolo Contendere Pleas: A Justification, 6 Cal. Crim. L. Rev. 2, 5 (2004).

8 U.S.C. § 1101(a)(48)(A). This includes suspended sentences. Id. § Crum bs from Congressional Research Service 26 Immigration Consequences of Criminal Activity and (2) the judge has ordered some sort of punishment, penalty, or restraint on the alien’s liberty.161 Qualifying nonconfinement judicial orders can include probation162 and restitution.163 Thus, even for crimes requiring a conviction for immigration consequences to attach, there need not necessarily be a formal judgment of guilt or a sentence of imprisonment imposed.164 Approaches to Determine Whether a Criminal Conviction Triggers Immigration Consequences Although the INA sometimes expressly identifies conduct referenced in a criminal statute that would render an alien removable or ineligible for certain relief, in many instances the INA simply refers to a general category of criminal behavior that carries immigration consequences.165 Accordingly, reviewing courts and immigration authorities must sometimes determine whether the range of conduct covered by an alien’s criminal conviction fal s within the scope of criminal conduct proscribed by the INA. The Supreme Court has instructed that, to make such a determination, reviewing courts should apply a “categorical approach,” in which they compare the elements of the offense of conviction to the generic federal definition of the predicate crime.166 Under this approach, reviewing courts may look only to the statutory elements of the crime of conviction, rather than the particular facts of the case, in analyzing whether the crime “categorical y fits” within the corresponding federal generic offense.167 In doing so, the courts must presume that the conviction was based on the least culpable conduct under the criminal statute.168 If the crime of conviction “sweeps more broadly” than the generic offense identified by the INA as grounds for an alien’s removal, the criminal conviction cannot serve as a basis for removal.169 the Master’s Table: The Supreme Court, Pro Se Defendants & the Federal Guilty Plea Process, 81 NOTRE DAME L. REV. 1895, 1938 (2006); Mark Gurevich, Justice Dep’t’s Policy of Opposing Nolo Contendere Pleas: A Justification, 6 CAL. CRIM. L. REV. 2, 5 (2004). 161 8 U.S.C. § 1101(a)(48)(A). T his includes suspended sentences. Id. § 1101(a)(48)(B); Dung Phan v. Holder, 667 F.3d 448, 452 (4^th4th Cir. 2012) ("“ That Phan'’s prison sentence was suspended in favor of probation is irrelevant because the conditions of probation, backed by the specter of a suspended prison sentence, are mostmo st certainly a form of punishment or penalty and a restraint on one'’s liberty.").

”). 162 See Reyes v. Lynch, 834 F.3d 1104, 1108 (9^th9th Cir. 2016) (concluding that order of probation included a limitation on freedom to associate with certain categories of persons and thus restrains liberty); Jeff Joseph, Immigration Im m igration Consequences of CriminalCrim inal Pleas & Convictions, 35-OCT Colo. Law COLO. LAW. 55, 56 (2006). 163 See De Vega . 55, 56 (2006).

See De Vega v. Gonzalez, 503 F.3d 45, 49 (1^st 1st Cir. 2007). 164Cir. 2007).

See Acosta v. Ashcroft, 341 F.3d 218, 222 (3d Cir. 2003) (recognizing that, in the absence of a formal judgment of guilt, an alien will be considered to have been convicted of an offense for purposes of the INA as long as the disposition of the criminal proceeding meets the two-part test set forth in INA § 1101(a)(48)(A)).

165 Compare, e.g., 8 U.S.C. § 1101(a)(43)(D) (defining an "“aggravated felony"” to include "“an offense described in section 1956 of TitleT itle 18 (relating to laundering of monetary instruments) or section 1957 of that title (relating to engaging engaging in monetary transactions in property derived from specific unlawful activity) if the amount of the funds exceeded exceeded $10,000),"” with 8 U.S.C. § 1101(a)(43)(M)(i) (defining an "“aggravated felony"” as an offense that "involves fraud th at “involves fraud or deceit in which the loss to the victim or victims exceeds $10,000").

”). 166 Moncrieffe v. Holder, 569 U.S. 184, 190 (2013); TaylorT aylor v. United States, 495 U.S. 575, 599- ̶ 600 (1990). 167600 (1990).

Moncrieffe, 569 U.S. at 190 (citing Gonzales v. Duenas-Alvarez, 549 U.S. 183, 186 (2007)).

168 Id. at 190- ̶ 91 (citing Johnson v. United States, 559 U.S. 133, 137 (2010)). 169133, 137 (2010)).

Descamps v. United States, 570 U.S. 254, 261 (2013); see also Mathis v. United States, 136 S. Ct. 2243, 2248 (2016) (noting that if the criminal statute "“ covers any more conduct than the generic offense,"” it does not meet the generic definition, "“even if the defendant'’s actual conduct (i.e., the facts of the crime) fits within the generic offense's boundaries").

Descamps, 570 U.S. at 260-64 (citing Taylor, 495 U.S. at 602).

Id.; Shepard v. United States, 544 U.S.13, 26 (2005).

Descamps, 570 U.S. at 258.

Id. at 278 (emphasis added). In addition, the Supreme Court has held ’s boundaries”). Congressional Research Service 27 Immigration Consequences of Criminal Activity In some cases, however, the courts may look beyond the statutory definition of a criminal offense when the statute lists multiple, alternative elements of a crime, and only some of those alternatives correspond to the generic offense identified by the INA as carrying immigration consequences.170 Under this “modified categorical approach,” courts may examine the underlying conviction documents, such as the charging papers or plea agreement, to determine which statutory elements a defendant was convicted of, and compare those elements to the federal generic offense.171 The Supreme Court has held, though, that a court may not apply this approach merely when a statute contains a “single, indivisible set of elements” that cover “a broader swath of conduct than the relevant generic offense.”172 Instead, “[a] court may use the modified approach only to determine which alternative element in a divisible statute formed the basis of the defendant’s conviction.”173 The strict limitations of the categorical and modified categorical approaches do not apply, however, when a comparison between the criminal statute and a generic offense requires an examination of the “particular circumstances in which an offender committed the crime on a particular occasion.”174 Applying this “circumstance-specific” exception, a number of reviewing courts have held that an adjudicator may consider evidence outside the conviction record to determine whether a criminal conviction involved factors specified in a generic offense that are not tied to the elements of a criminal statute. For example, the courts have considered evidence as to whether a fraud offense met a $10,000 loss threshold (a monetary threshold that must be exceeded for the offense to constitute an aggravated felony under the INA), or whether a drug conviction involved the personal use of 30 grams or less of marijuana (in which case the drug conviction would not be a deportable offense).175 In practice, the BIA employs the categorical and modified categorical approaches to determine whether a criminal conviction meets the definition of a predicate offense for immigration purposes.176 Following the Supreme Court’s guidance, the BIA general y limits its analysis of criminal convictions to the statutory elements of the crime, rather than the specific facts underlying the conviction. The BIA wil turn to the record of conviction only in cases in which the statute has a divisible structure that lists alternative elements of an offense, only some of 170 Descamps, 570 U.S. at 260 ̶ 64 (citing Taylor, 495 U.S. at 602). 171 Id.; Shepard v. United States, 544 U.S.13, 26 (2005). 172 Descamps, 570 U.S. at 258. 173 Id. at 278 (emphasis added). In addition, the Supreme Court has held that a court may not use the modified categorical approach where a statute lists different ways of committing a single element of a crime (as opposed to listing multiple alternative elements of a crime), and, in doing so, the statute covers more conduct than the relevant generic offense. Mathis, 136 S. Ct. at 2253- ̶ 54 (reasoning that the modified categorical approach may only be used to identify the elements of a crime, but not the means by which a person committed the crime).

174 Nijhawan v. Holder, 557 U.S. 29, 38 (2009). 17529, 38 (2009).

See e.g., id. (whether conviction is for an offense that "“involves fraud or deceit in which the loss to the victim or victims exceeds $10,000"”); Rojas v. Att'’y Gen. of the U.S., 728 F.3d 203, 215- ̶ 16 (3d Cir. 2013) (whether an offense is one "“relating to a controlled substance"”); Mellouli v. Holder, 719 F.3d 995, 1001 (8^th8th Cir. 2013) (whether conviction is a “ a "single offense involving possession for one'’s own use of 30 gramsgram s or less of marijuana"”); Varughese v. Holder, 629 F.3d 272, 274- ̶ 75 (2d Cir. 2010) (whether conviction is a money -laundering offense where the "“ amount of the funds exceeded exceeded $10,000"”); Bianco v. Holder, 624 F.3d 265, 270-73 (5^th ̶ 73 (5th Cir. 2010) (whether the victim of a crime of violence had a qualifying "domestic" “domestic” relationship to the offender for purposes of the "“crime of domestic violence" charge).

See e.g.,” charge). 176 See e.g., Matter of Nemis, 28 I. & N. Dec. 250, 251 ̶ 52 (BIA 2021); Matter of Alvarado, 26 I. & N. Dec. 895, 897 (BIA 2016); Matter of Carachuri-Rosendo, 24 I. & N. Dec. 382, 389 (BIA 2007); Matter of Puente-Salazar, 22 I. & N. Dec. 1006, 1011 (BIA 1999); Matter of Pichardo, 21 I. &  & N. Dec. 330, 335 (BIA 1996); Matter of Madrigal, 21 I. & N. Dec. 323, 325 (1996); Matter of Short, 20 I. & N. Dec. 136, 137- ̶ 38 (BIA 1989). Congressional Research Service 28 Immigration Consequences of Criminal Activity which categorical y match the generic offense identified by the INA as carrying immigration consequences.177 Previously, however, in analyzing whether a criminal conviction is a crime involving moral turpitude, the BIA adopted a less restrictive form of the categorical approach that merely examines “whether there is a ‘realistic probability,’ as opposed to a ‘theoretical possibility,’ that the statute under which the alien was convicted would be applied to reach conduct that does not involve moral turpitude.”178 Under that analysis, if the criminal statute realistical y could reach conduct not involving moral turpitude, an adjudicator could look to the record of conviction as wel as “any additional evidence the adjudicator determines is necessary or appropriate to resolve accurately the moral turpitude question.”179 Ultimately, after several reviewing courts rejected this formulation,180 the BIA ruled that the categorical and modified categorical approaches—as outlined by the Supreme Court—are the proper methods for determining whether an alien was convicted of a crime involving moral turpitude.181 The BIA, however, stated that it would continue using the realistic probability test when applying the categorical approach analysis; but, noting the circuit disagreement as to its appropriateness, announced that it would apply the controlling law of circuits that have expressly disavowed that approach.182 The BIA also held that application of the modified categorical approach was limited to circumstances in which the statute is divisible and lists offense elements in the alternative.183 And using this approach, the BIA clarified, adjudicators may look to only the record of conviction to determine which element formed the basis for the alien’s conviction.184 Apart from considering the standard to determine whether a criminal conviction corresponds with the federal generic definition of a predicate crime, courts have considered the proper al ocation of the burden of proof in cases where the record is inconclusive or ambiguous as to whether a criminal offense triggers adverse immigration consequences. Courts, in particular, have disagreed 177 See Matter of Nemis, 28 I. & N. Dec. at 254, 257 ̶ 58;38 (BIA 1989).

See Matter of J-G-D-F-, 27 I. & N. Dec. 82, 83- ̶ 86 (BIA 2017); Silva-TrevinoT revino III, 26 I. & N. Dec. 826, 831- ̶ 33 (BIA2016); Matter of Chairez-Castrejon, 26 I. & N. Dec. 819, 820 (BIA 2016). TheT he BIA has also recognized the "“circumstance-specific"” exception to the categorical approach in cases where comparing the criminal statute to a generic offense in the INA necessarily involves considering factorsfa ctors beyond the elements of the offense. See Matter of Garza-Olivares, 26 I. & N. Dec. 736, 739- ̶ 40 (BIA 2016); Matter of Dominguez-Rodriguez, 26 I. & N. Dec. 408, 412- ̶ 13 (BIA 2014); Matter of Davey, 26 I. & N. Dec. 37, 39 (BIA 2012); Matter of Babaisakov, 24 I. & N. Dec. 306, 322 (2007); Matter of Gertsenshteyn, 24 I. & N. Dec. 111, 115- ̶ 16 (BIA 2007). 17816 (BIA 2007).

Matter of Louissaint, 24 I. & N. Dec. 754, 757 (BIA 2009) (quoting Silva-Trevino I, 24 I. & N. Dec. at 698) (internal quotations omitted). In Silva-Trevino I, Attorney General Michael Mukasey, who had directed the BIA to refer its decision to him for review pursuant to 8 C.F.R. § 1003.1(h)(1)(i) , established this approach for analyzing whether a criminal conviction is a crime involving moral turpitude. Silva-Trevino I, 24 I. & N. Dec. at 698.

179 Matter of Louissaint, 24 I. & N. Dec. at 757 (citing Silva-Trevino I, 24 I. & N. Dec. 687, 698- ̶ 704 (A.G. 2008)). 180 See Silva-T revino704 (A.G. 2008)).

See Silva-Trevino v. Holder, 742 F.3d 197 (5^th5th Cir. 2014); Olivas-Motta v. Holder, 746 F.3d 907 (9^th9th Cir. 2013); Prudencio v. Holder, 669 F.3d 472 (4^th4th Cir. 2012); Fajardo v. U.S. Att'’y Gen., 659 F.3d 1303 (11^th11th Cir. 2011); Jean- -Louis v. Att'’y Gen. of the U.S., 582 F.3d 462 (3d Cir. 2009). TwoT wo circuits, however, deferred to the Attorney General's ’s instructions in Silva-Trevino I. See Bobadilla v. Holder, 679 F.3d 1052 (8^th8th Cir. 2012); Mata-Guerrero v. Holder, 627 F.3d 256 (7^th7th Cir. 2010). Given "“ the variance between Attorney General Mukasey'’s binding opinion and the contrary controlling precedent in some circuits,"” as well as " as “ intervening Supreme Court decisions that cast doubt on the continued validity of the opinion,"” Attorney General Eric Holder in 2015 vacated Silva-Trevino I and directed the BIA to develop a new uniform standard to determinedetermin e whether an alien has been convicted of a crime involving moral turpitude. Silva-Trevino II, 26 I. & N. Dec. 550, 552-530553 ̶ 54 (A.G. 2015). 181 (A.G. 2015).

Silva-Trevino III, 26 I. & N. Dec. 826, 830 (BIA 2016).

Id. at 832-33.

Id. at 833

Id.

8 U.S.C. § 1101(a)(43)(G).

For example, the crime of larceny was traditionally limited to the permanent taking of property that was in another person's possession (or deemed to be in his possession). Bell v. United States, 462 U.S. 356, 358- 182 Id. at 832 ̶ 33. 183 Id. at 833 184 Id. Congressional Research Service 29 Immigration Consequences of Criminal Activity over whether an alien has the burden to prove that a criminal conviction does not bar him or her from relief from removal where the evidence is unclear as to whether the alien committed a disqualifying crime (e.g., because the statute lists multiple alternative elements of an offense, and only some of them correspond to the federal generic offense, and the record is inconclusive as to which specific crime the alien committed).185 Resolving this judicial disagreement, the Supreme Court held that, if there is ambiguity as to whether a criminal conviction bars an alien from relief from removal, the alien has the burden of presenting evidence that he or she did not commit a disqualifying criminal offense.186 The Court explained that, although the government has the burden of proving that a criminal conviction renders an alien who has been admitted to the United States subject to removal,187 the INA requires aliens applying for relief from removal to prove “al aspects of their eligibility,” including that they are not subject to any applicable criminal bars.188 The Court determined that, in requiring an alien to prove eligibility for relief from removal, “Congress was entitled to conclude that uncertainty about an alien’s prior conviction should not redound to his benefit.”189 Interpreting the INA Predicate Offense In many instances Congress did not incorporate a statutory definition when defining a predicate offense that carries immigration consequences, leaving it up to the courts to carve out a generic definition. For example, the INA includes as an aggravated felony “a theft offense (including receipt of stolen property)” for which the term of imprisonment is at least one year, but does not define that phrase.190 To fil that gap, the appel ate courts have general y eschewed the more restrictive, common law definitions of “theft” or “larceny”191 for a broader and more modern construction: The “taking of property or an exercise of control over property without consent with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent.”192 185 Compare Pereida v. Barr, 916 F.3d 1128, 1133 (8th Cir. 2019), Lucio -Rayos v. Sessions, 875 F.3d 573, 583 ̶ 84 (10th Cir. 2017), Syblis v. Att’y Gen. of the United States, 763 F.3d 348, 357 (3d Cir. 2014), and Salem v. Holder, 647 F.3d 111, 116 ̶ 17 (4th Cir. 2011) (holding that alien applying for cancellation of removal had the burden to prove that criminal conviction did not bar eligibility for relief despite the fact that documents in the record failed to establish which specific crime alien had committed and th us failed to show whether conviction was a disqualifying crime), with Marinelarena v. Barr, 930 F.3d 1039, 1053 (9th Cir. 2019), vacated sub nom. Wilkinson v. Marinelarena, No. 19-632, 2021 WL 850613 (Mem.) (Mar. 8, 2021); Martinez v. Mukasey, 551 F.3d 113 , 121 (2d Cir. 2008) (holding that alien’s eligibility for cancellation of removal is not barred where the record is ambiguous as to whether a criminal conviction constitutes a predicate disqualifying federal offense). 186 Pereida v. Wilkinson, 141 S. Ct. 754, 760 ̶ 61 (2021). 187 See 8 U.S.C. § 1229a(c)(3)(A) (“In the proceeding [DHS] has the burden of establishing by clear and convincing evidence that, in the case of an alien who has been admitted to the United States, the alien is deportable.”). 188 Pereida, 141 S. Ct. at 758, 761; see also 8 U.S.C. § 1229a(c)(4)(A) (providing that an alien applying for relief from removal has the burden of proof to establish “the applicable eligibility requirements” and to show that the alien “merits a favorable exercise of discretion.”). 189 Pereida, 141 S. Ct. at 767. 190 8 U.S.C. § 1101(a)(43)(G). 191 For example, the crime of larceny was traditionally limited to the permanent taking of property that was in another person’s possession (or deemed to be in his possession). Bell v. United States, 462 U.S. 356, 358 ̶ 59 (1983); Almeida v. Holder, 588 F.3d 778, 783- ̶ 84 (2d Cir. 2009). 19284 (2d Cir. 2009).

See United States v. Medina-TorresT orres, 703 F.3d 770, 774 (5^th5th Cir. 2012); United States v. Venzor-Granillo, 668 F.3d 1224, 1232 (10^th10th Cir. 2012); Ramirez-Villalpando v. Holder, 645 F.3d 1035, 1039 (9^th9th Cir. 2011); Jaggernauth v. U.S. Att'Att’y Gen., 432 F.3d 1346, 1353 (11^th11th Cir. 2005); Soliman v. Gonzales, 419 F.3d 276, 283 (4^th4th Cir. 2005); Abimbola Congressional Research Service 30 Immigration Consequences of Criminal Activity In defining the scope of other undefined predicate offenses, the courts have been less consistent. For example, the INA also includes as an aggravated felony “murder, rape, or sexual abuse of a minor.”193 Until the Supreme Court’s decision in Esquivel-Quintana v. Sessions, there was some disagreement among reviewing courts and the BIA over the scope of offenses constituting “sexual abuse of a minor” under the INA, with the BIA broadly interpreting the phrase to cover any sexual y explicit conduct with a person under 18.194 In Esquivel-Quintana, however, the Supreme Court construed the phrase as having a more limited scope and held that, for statutory rape offenses based solely on the age of the participants, the term “sexual abuse of a minor” requires the age of the victim to be less than 16.195 Even in cases that involve interpreting an INA provision in which Congress has expressly incorporated a federal statutory provision to define a predicate offense, the courts sometimes have struggled to interpret that definition consistently. As mentioned above, INA § 101(a)(43) includes as an aggravated felony a “crime of violence” as that term is defined in 18 U.S.C. § 16, and for which the term of imprisonment is at least one year.196 18 U.S.C. § 16 defines a crime of violence as either (1) “an offense that has an element the use, attempted use, or threatened use of physical force against the person or property of another”; or (2) “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”197 Initial y, a question raised was whether a “crime of violence,” as defined in 18 U.S.C. § 16, requires a particular mens rea, or mental state. Lower courts had reached varying conclusions over the state of mind that a person must possess in order to commit a crime of violence. Some courts, for example, had ruled that grossly negligent behavior was sufficient to meet the definition, whereas other courts required a showing of recklessness or specific intent.198 Eventual y, in its 2004 ruling in Leocal v. Ashcroft, the Supreme Court held that a crime of Cir. 2005); Abimbola v. Ashcroft, 378 F.3d 173, 176 (2d Cir. 2004); Hernandez-Mancilla v. INS, 246 F.3d 1002, 1009 (7^th7th Cir. 2001). 193 8 U.S.C. § Cir. 2001).

8 U.S.C. § 1101(a)(43)(A).

1101(a)(43)(A). 194 Matter of Esquivel-Quintana, 26 I. & N. Dec. 469, 477 (BIA 2015); Matter of V-F-D-, 23 I. & N. Dec. 859, 862 (BIA 2006); Matter of Rodriguez-Rodriguez, 22 I. & N. Dec. 991, 995- ̶ 96 (BIA 1999). TheT he Second, ThirdT hird, Sixth, and Seventh Circuits have upheld the BIA'’s broad interpretation of "“sexual abuse of a minor."” See Esquivel-Quintana v. Lynch, 810 F.3d 1019, 1025-27 (6^th ̶ 27 (6th Cir. 2016); Velasco-Giron v. Holder, 773 F.3d 774, 776-77 (7^th ̶ 77 (7th Cir. 2014); Restrepo v. Att'’y Gen. of the United States, 617 F.3d 787, 796 (3d Cir. 2010); Mugalli v. Ashcroft, 258 F.3d 52, 60 (2d Cir. 2001). TheT he Ninth Circuit has held, however, that for statutory rape crimes, "“sexual abuse of a minor"” requires a a person to knowingly engage in a sexual act (defined to involve direct physical contact) with a child under sixteen, and who is at least four years younger than the perpetrator. United States v. Medina-Villa, 567 F.3d 507, 514 (9^th9th Cir. 2009). 1952009).

Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 1572- ̶ 73 (2017). The Supreme Court based its decision on the legal dictionary definition of the term "“ age of consent,"” the structure of the INA, and the language of similar federal and state criminal statutes that set the age of consent at sixteen. Id. at 1569- ̶ 72. The Court left unresolved whether sexual abuse of a minor requires a particular age differential between the victim and the perpetrator, or whether the offense includes sexual sexual intercourse involving victims over the age of 16 that is abusive because because of the nature of the relationship between the participants. Id. at 1572.

196 8 U.S.C. § § 1101(a)(43)(F). 197 18 U.S.C. § 16. 1981101(a)(43)(F).

18 U.S.C. § 16.

Compare Jobson v. Ashcroft, 326 F.3d 367, 373- ̶ 74 (2d Cir. 2003) (requiring intentional use of force), and Bazan-Reyes v. INS, 256 F.3d 600, 611 (7^th7th Cir. 2001) (same), with TapiaT apia Garcia v. INS, 237 F.3d 1216, 1222-23 (10^th ̶ 23 (10th Cir. 2001) (gross negligence), and United States v. Ceron-Sanchez, 222 F.3d 1169, 1172-73 (9^th ̶ 73 (9th Cir. 2000) (recklessness causing causing physical injury), and United States. v. Chapa-Garza, 243 F.3d 921, 926-27 (5^th ̶ 27 (5th Cir. 2001) (requiring intentional use of force).

Leocal v. Ashcroft, 543 U.S. 1, 9 (2004). The Court did not address whether the reckless use of force qualified as a Congressional Research Service 31 Immigration Consequences of Criminal Activity violence requires an “active employment” of force with “a higher degree of intent than negligent or merely accidental conduct.”199 In 2018, the Supreme Court in Sessions v. Dimaya ruled that the second clause of the crime of violence definition—“any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person of property of another may be used in the course of committing the offense”200—is unconstitutional y vague.201 The Court reasoned that the language of this clause involves an “excessively speculative” analysis to determine a crime’s inherent risk or to assess the level of risk required to meet the “substantial risk” threshold.202 Therefore, even where Congress expressly provided a definition for a predicate criminal offense, the Supreme Court and lower courts have, at times, considered how immigration authorities should interpret that definition. Issues for Congress Congress has repeatedly amended the INA to expand, curtail, or otherwise modify the immigration consequences of criminal conduct, and legislative proposals to alter the current framework are regularly introduced. For instance, Congress may legislate to expand or constrict 199 Leocal v. Ashcroft, 543 U.S. 1, 9 (2004). T he Court did not address whether the reckless use of force qualified as a crime of violence. Id. at 13. 200 18 U.S.C. crime of violence. Id. at 13.

18 U.S.C. § 16(b).

§ 16(b). 201 Sessions v. Dimaya, No. 15-1498, 137 S. Ct. 31 (2016); Dimaya v. Lynch, 803 F.3d 1110 (9^th Cir. 2015 v. Dimaya, 138 S. Ct. 1204, 1216 (2018). In Dimaya, the Supreme Court is reviewing reviewed the Ninth Circuit's ’s conclusion that the clause is unconstitutionally vague in violation of the Fifth Amendment'’s Due Process Clause. In so holding, the Ninth Circuit had relied on the Supreme Court'’s ruling in Johnson v. United States that the Armed Career Criminal Act'’s (ACCA) " “residual clause" ” defining a "“violent felony"” is unconstitutionally vague. Dimaya, Dimaya v. Lynch, 803 F.3d at 1111 (1110, 1111 (9th Cir. 2015) (citing Johnson v. United States, 135 S. Ct. 2551576 U.S. 591 (2015)). Under the ACCA, a defendant convicted of firearm offenses in violation of 18 U.S.C. § 922(g) will face harsher punishment if that defendant has three or more previous convictions for a violent felony, which is defined to include any felony that "“involves conduct that presents a serious potential risk of physical injury to another."” 18 U.S.C. §§ 924(e)(1), (2)(B)(ii). In Dim ayaIn Dimaya, the Ninth Circuit ruled that the INA'’s definition of crime of violence—bearing language similar to the ACCA's residual clause—likewise is ACCA’s residual clause—likewise is unconstitutionally vague. Dimaya, 803 F.3d at 1111, 1115. The T hird, Sixth, Seventh, and TenthT enth Circuits, applying Johnson, had reached the same conclusion. TheGolicov v. Lynch, 837 F.3d 1065, 1072, 1075 (10th Cir. 2016); Shuti v. Lynch, 828 F.3d 440, 441, 451 (6th Cir. 201 6); Baptiste v. Att’y Gen., 841 F.3d 601, 621 (3d Cir. 2016); United States v. Vivas-Ceja, 808 F.3d 719, 720, 723 (7th Cir. 2015). T he Fifth Circuit, however, reached the opposite conclusion in United States v. Gonzalez-Longoria, 831 F.3d 670, 676-77 (5^th ̶ 77 (5t h Cir. 2016). For more information on the ACCA and Johnson, see CRS Report R41449, Armed Career CriminalArm ed Career Crim inal Act (18 U.S.C. 924(e)): An Overview, by Charles Doyle.