Order Code RL32480
Immigration Consequences
of Criminal Activity
Updated July 2, 2008
Yule Kim
Legislative Attorney
American Law Division
Michael John Garcia
Legislative Attorney
American Law Division

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Immigration Consequences of Criminal Activity
Summary
Congress has broad plenary authority to determine classes of aliens who may be
admitted into the United States and the grounds for which they may be removed.
Pursuant to the Immigration and Nationality Act (INA), as amended, certain conduct
may either disqualify an alien from entering the United States (“inadmissibility”) or
provide grounds for his or her removal/deportation. Prominently included among
this conduct is criminal activity. “Criminal activity” comprises acts violative of
federal, state, or, in many cases, foreign criminal law. It does not cover violations of
the INA that are not crimes — most notably, being in the U.S. without legal
permission. Thus, the term “illegal alien” — an alien without legal status — is not
synonymous with “criminal alien.”
Most crimes affecting immigration status are not specifically mentioned by the
INA, but instead fall under a broad category of crimes, such as crimes involving
moral turpitude or aggravated felonies. In addition, certain criminal conduct
precludes a finding of good moral character under the INA, which is a requirement
for naturalization and certain types of immigration relief.
In certain circumstances, grounds for inadmissibility or deportation may be
waived. In some cases, aliens facing removal may be allowed to remain in the United
States — for example, when they are granted discretionary or mandatory relief from
removal for humanitarian reasons, such as through asylum, withholding of removal,
or cancellation of removal. Aliens facing removal may also be permitted to depart
the United States voluntarily, and thereby avoid the potential stigma and legal
consequences of forced removal. Criminal conduct may affect an alien’s eligibility
for either voluntary departure or discretionary relief from removal. Additionally,
criminal conduct is a key disqualifying factor under the character requirement for
naturalization.
Several legislative proposals were made during the 110th Congress that
contained provisions modifying the immigration consequences of criminal activity.
S. 1348, the Comprehensive Immigration Reform Act of 2007, contained provisions
concerning the immigration consequences of criminal activity which were virtually
identical to those contained in the version of S. 2611 that passed the Senate in the
109th Congress. S.Amdt. 1150, the Secure Borders, Economic Opportunity, and
Immigration Reform Act of 2007, which had been proposed in the nature of a
substitute to S. 1348, contained some (but not all) of the modifications to the
immigration consequences of criminal activity originally contained in S. 1348. S.
1639, introduced on June 20, 2007, contained provisions modifying the immigration
consequences of criminal activity that were largely identical to those contained in
S.Amdt. 1150, as it was amended during floor debate.
On July 1, 2008, H.R. 5690 was enacted as P.L. 110-257. Among other things,
this law provides certain relief from inadmissibility to members of the African
National Congress (ANC).

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Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Administration of Immigration Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Categories of Criminal Aliens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Crimes Involving Moral Turpitude . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Aggravated Felonies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Crimes Affecting Assessment of Good Moral Character . . . . . . . . . . . . . . . 6
Major Immigration Consequences for Criminal Aliens . . . . . . . . . . . . . . . . . . . . . 7
Designation as Inadmissible Alien . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Deportation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Denial of Discretionary Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Asylum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Withholding of Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Cancellation of Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Voluntary Departure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Temporary Protected Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Adjustment of Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Registry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Naturalization Restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Possible Legislative Issues in the 110th Congress . . . . . . . . . . . . . . . . . . . . . . . . 15

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Immigration Consequences
of Criminal Activity
Introduction
Congress has broad plenary authority to determine classes of aliens who may be
admitted into the United States and the grounds for which they may be removed.1
Pursuant to the Immigration and Nationality Act (INA),2 as amended, certain conduct
may either disqualify an alien from entering the United States or provide grounds for
his or her removal. Prominently included among this conduct is criminal activity.
In general, aliens may legally enter the United States under one of three
categories: (1) legal permanent residents (LPRs), who are also commonly referred to
as immigrants; (2) nonimmigrants, who are aliens permitted to enter the United
States temporarily for a specific purpose, such as for tourism, academic study, or
temporary work; and (3) refugees, who are aliens facing persecution abroad and are
of special humanitarian concern to the United States. There are two aspects for legal
admission under each of these categories. First, an alien must fulfill the substantive
requirements for admission under a specified category. For example, in order to
enter the United States as a nonimmigrant student, an alien must demonstrate that he
is a bona fide student at an approved school.3 Second, aliens who fulfill substantive
requirements for admission may nevertheless be denied admission if they fall within
a class of inadmissable aliens listed under INA § 212.4 Once admitted, aliens remain
subject to removal if they fall within a class of deportable aliens listed under INA §
237.5 The INA contains bars for admission and grounds for deportation based on
criminal conduct.6
This report discusses the potential immigration consequences of criminal
activity. “Criminal activity” generally refers to conduct for which an alien has been
found or plead guilty before a court of law, though in limited circumstances
consequences may attach to the commission of a crime or admission of acts
constituting the essential elements of a crime. Consequences may flow from
violations of either federal, state or, in many circumstances, foreign criminal law.
1 For further background on U.S. immigration policy, see CRS Report RS20916,
Immigration and Naturalization Fundamentals, by Ruth Ellen Wasem.
2 8 U.S.C. §§ 1101 et seq.
3 INA § 101(a)(15)(F); 8 U.S.C. § 1101(a)(15)(F).
4 8 U.S.C. § 1182.
5 8 U.S.C. § 1227.
6 See INA §§ 212(a)(2) 237(a)(2); 8 U.S.C. §§ 1182(a)(2), 1227(a)(2).

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Some federal crimes are set out in the INA itself — alien smuggling, for example.
However, not all violations of immigration law are crimes. Notably, being in the
U.S. without legal permission — i.e., being an “illegal alien” — is not a crime in and
of itself.7 Thus, for example, an alien who overstays a student visa may be an “illegal
alien,” in that the alien may be subject to removal from the U.S., but such an alien
is not a “criminal alien.”
Administration of Immigration Law
For several decades, the primary authority to interpret, implement, and enforce
the provisions of the INA was vested with the Attorney General.8 The Attorney
General delegated most authority over immigration matters to two bodies within the
Department of Justice (DOJ): the Immigration and Naturalization Service (INS),
which was delegated authority over immigration enforcement and service functions,
and the Executive Office of Immigration Review (EOIR), which was delegated
adjudicatory functions over immigration matters. Following the establishment of the
Department of Homeland Security (DHS), the INS was abolished and its functions
were transferred to DHS. Pursuant to INA § 103(a)(1), as amended, the DHS
Secretary is now “charged with the administration and enforcement of...[the INA]
and all other laws relating to the immigration and naturalization of aliens, except
insofar as this chapter or such laws relate to the powers, functions, and duties
conferred upon the ... [other executive officers and agencies including] the Attorney
General....”9
Pursuant to INA § 103, as amended, EOIR retains adjudicative authority over
immigration matters, and rulings by the Attorney General with respect to questions
of immigration law remain controlling upon immigration authorities.10 However, the
precise scope of the Attorney General’s continued authority over other immigration
matters remains unclear, because most provisions of the INA have not been
specifically amended to reflect the transfer of certain immigration functions to
DHS.11 As a result, many of the regulations implemented by DHS and EOIR are
presently duplicative or otherwise overlapping.12 The Homeland Security Act of
7 Unlawful presence is only a criminal offense when an alien is found in the United States
after having been formally removed or after departing the United States while a removal
order was outstanding. INA § 276; 8 U.S.C. § 1326.
8 Primary authority over immigration matters was transferred from the Department of Labor
to the Department of Justice in 1940. Reorg. Plan No. 5 of 1940, 5 Fed. Reg. 2223 (1940).
9 8 U.S.C. § 1103(a)(1).
10 Id. at § 1103(a)(1), (g).
11 For further background on the transfer of immigration authority to the DHS, see CRS
Report RL31997, Authority to Enforce the Immigration and Nationality Act (INA) in the
Wake of the Homeland Security Act: Legal Issues, by Stephen R. Viña.
12 According to the DOJ, which issued these regulations just prior to the transfer of certain
immigration authority to the DHS, the duplication of regulations was intended “to ensure
continuity, even though the Attorney General and Secretary may later amend their respective
regulations to further separate the procedures and clarify those sections that affect each
(continued...)

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CRS-3
2002, which established DHS and transferred to it many immigration functions
previously conducted by the INS, provided a general guideline that immigration
officials to whom immigration functions were transferred “may, for purposes of
performing the function, exercise all authorities under any other provisions of law
that were available with respect to the performance of that function to the official
responsible for the performance of the function immediately before [transfer].”13 As
a practical matter, the DHS has primary day-to-day authority over immigration
matters, while the Attorney General and EOIR maintain adjudicatory authority over
immigration matters and questions of immigration law.
Categories of Criminal Aliens
The INA lists a number of criminal grounds for designating an alien as
inadmissible or deportable. Most crimes included under these grounds are not
specifically mentioned, but instead fall under a broad category of crimes, such as
crimes involving moral turpitude or aggravated felonies. In addition, certain
criminal conduct precludes a finding of good moral character under the INA, thereby
preventing an alien from becoming either a naturalized U.S. citizen or a candidate for
certain types of relief.
The class of crimes involving moral turpitude, the class of aggravated felonies,
and the class of crimes that preclude a finding of good moral character are
overlapping, but no two classes are coextensive. The types of crimes constituting
crimes of moral turpitude are determined by case law. Crimes that are aggravated
felonies are listed in statute, with case law illuminating the bounds of certain listed
crimes. Crimes precluding a finding of good moral character are determined by a
combination of case law and statutory law. These criminal classes are further
modified for the purposes of specific INA provisions.14 The following sections will
describe these criminal categories in more detail.
12 (...continued)
agency...[but] the duplication assures that interpretation will be consistent until coordinated
decisions are made respecting these procedures.” Department of Justice, Final Rule, Aliens
and Nationality; Homeland Security; Reorganization of Regulations, 68 Fed. Reg. 9824,
9825 (February 28, 2003) (codified at 8 C.F.R pts. I, V).
13 Homeland Security Act of 2002, P.L. 107-296, § 456.
14 For example, crimes involving moral turpitude that may make an alien inadmissible
include all such crimes other than (1) a single such crime committed by a minor if the crime
was committed, and any confinement ended, at least five years before applying for
admission or (2) a single misdemeanor for which the term of imprisonment imposed, if any,
did not exceed six months. INA § 212(a)(2)(A); 8 U.S.C. § 1182(a)(2)(A). On the other
hand, crimes involving moral turpitude that may make an alien deportable include (1) one
conviction of such a crime committed within five years of entry (ten years in the case of a
small subcategory of aliens) if the crime is punishable by at least one year’s imprisonment,
and (2) the conviction of more than one such crime, whenever committed and whatever the
potential punishment, if the crimes were not committed in a single scheme of criminal
conduct. INA § 237(a)(2)(A); § 8 U.S.C. § 1227(a)(2)(A)

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Crimes Involving Moral Turpitude
Immigration law has used the term “moral turpitude” in its criminal grounds for
exclusion since 1891.15 Whether a crime involves moral turpitude has been
determined by judicial and administrative case law rather than a statutory definition.
In general, if a crime manifests an element of baseness or depravity under current
mores — if it evidences an evil or predatory intent — it involves moral turpitude.
Thus, certain crimes such as murder, rape, blackmail, and fraud have been considered
crimes involving moral turpitude, whereas crimes such as simple assault have not
been considered to involve moral turpitude.16
Aggravated Felonies
Since 1988, Congress has designated specific offenses as aggravated felonies
for immigration purposes, and it has made removal of aliens convicted of such crimes
a priority through streamlined procedures and ineligibility for various types of relief.
Aggravated felonies were initially listed under the INA pursuant to the Anti-Drug
Abuse Act of 198817 as part of a broad effort to combat narcotics trafficking. The
only crimes designated in the 1988 Act were murder, drug trafficking, and illegal
trafficking in firearms or destructive devices.18 Subsequent legislation has expanded
the definition of “aggravated felony” a number of times, to include certain categories
of crimes and many specific crimes.
Section 101(a)(43) of the INA defines “aggravated felony” through the listing
of a number of criminal categories and specified crimes. The broadest categories of
aggravated felonies under the INA are as follows:
! any crime of violence (including crimes involving a substantial risk
of the use of physical force) for which the term of imprisonment is
at least one year;
! any crime of theft (including the receipt of stolen property) or
burglary for which the term of imprisonment is at least one year; and
! illegal trafficking in drugs, firearms, or destructive devices.
Many specific crimes are also listed as aggravated felonies under the INA.
These include the following:
15 Prior to 1891, conviction of a “felonious crime” served as the basis of exclusion.
Subsequently, conviction for a “felony or other infamous crime or misdemeanor involving
moral turpitude” could constitute grounds for alien exclusion. Act of March 3, 1891, 26 Stat.
1084, ch. 551.
16 For a more thorough listing of crimes found to involve moral turpitude, see Maryellen
Fullerton & Noah Kinigstein, Strategies for Ameliorating the Immigration Consequences
of Criminal Convictions: A Guide for Defense Attorneys, 23 AM. CRIM. L. REV. 425, 431-36
(1986).
17 P.L. 100-690 (1988).
18 See id. at § 7342.

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! murder;
! rape;
! sexual abuse of a minor;
! illicit trafficking in a controlled substance, including a federal drug
trafficking offense;
! illicit trafficking in a firearm, explosive, or destructive device;
! federal money laundering or engaging in monetary transactions in
property derived from specific unlawful activity, if the amount of the
funds exceeded $10,000;
! any of various federal firearms or explosives offenses;
! any of various federal offenses relating to a demand for, or receipt
of, ransom;
! any of various federal offenses relating to child pornography;
! a federal racketeering offense;
! a federal gambling offense (including the transmission of wagering
information in commerce if the offense is a second or subsequent
offense) which is punishable by imprisonment of at least a year;
! a federal offense relating to the prostitution business;
! a federal offense relating to peonage, slavery, involuntary servitude,
or trafficking in persons;
! any of various offenses relating to espionage, protecting undercover
agents, classified information, sabotage, or treason;
! fraud, deceit, or federal tax evasion, if the offense involves more
than $10,000;
! alien smuggling, other than a first offense involving the alien’s
spouse, child, or parent;
! illegal entry or reentry of an alien previously deported on account of
committing an aggravated felony;
! an offense relating to falsely making, forging, counterfeiting,
mutilating, or altering a passport or immigration document if (1) the
term of imprisonment is at least a year and (2) the offense is not a
first offense relating to the alien’s spouse, parent, or child;
! failure to appear for service of a sentence, if the underlying offense
is punishable by imprisonment of at least five years;
! an offense relating to commercial bribery, counterfeiting, forgery, or
trafficking in vehicles with altered identification numbers, for which
the term of imprisonment is at least one year;
! an offense relating to obstruction of justice, perjury or subornation
of perjury, or bribery of a witness, for which the term of
imprisonment is at least one year;
! an offense relating to a failure to appear before a court pursuant to
a court order to answer to or dispose of a charge of a felony for
which a sentence of two years’ imprisonment or more may be
imposed; and
! an attempt or conspiracy to commit one of the foregoing offenses.

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Unless otherwise specified, an aggravated felony includes both state and federal
convictions, as well as foreign convictions for which the term of imprisonment was
completed less than 15 years earlier.19
Crimes Affecting Assessment of Good Moral Character
The possession of good moral character appears always to have been a statutory
requirement for naturalization,20 and good moral character now also bears on the
eligibility for various forms of immigration relief.21 Prior to 1952, the effect of
criminal conduct upon assessments of good moral character was determined solely
by case law and administrative practice. Following the enactment of the INA, certain
criminal activities were statutorily designated as barring a finding of good moral
character. The activities listed by the INA as prohibiting a finding of good moral
character are not exclusive, and engaging in illegal activity that is not specifically
designated by the INA may therefore still be considered when assessing character.22
Although not every activity listed by the INA as barring a finding of good moral
character directly relates to illegal behavior,23 most do. Pursuant to INA § 101(f), an
alien is barred from being found to have good moral character if, during the period
for which character is required to be established,24 the alien
! commits certain acts related to prostitution or another
commercialized vice;
! knowingly encourages, induces, assists, abets, or aids any other alien
to enter or to try to enter the United States in violation of law, except
in limited circumstances;
! commits a crime of moral turpitude, unless the alien committed only
one crime and either (1) the crime was committed while the alien
19 INA § 101(a)(43); 8 U.S.C. § 1101(a)(43).
20 Possession of “good moral character” was a requirement for naturalization under the
original U.S. naturalization law. Act of March 26, 1790, 1 Stat 103-104.
21 For a more detailed discussion of good moral character, see 7 CHARLES GORDON,
STANLEY MAILMAN & STEPHEN YALE-LOEHR, 7 IMMIGRATION LAW & PROCEDURE §
95.04[1] (2002) [hereinafter “GORDON & MAILMAN”].
22 See 8 C.F.R. § 316.10(a)(2) (stating that naturalization officials “evaluate claims of good
moral character on a case-by-case basis taking into account the elements enumerated [under
the INA and corresponding regulations] ... and the standards of the average citizen in the
community of residence”).
23 For example, an alien determined to be a habitual drunkard is statutorily barred from
being considered to possess good moral character. INA § 101(f)(1); 8 U.S.C. § 1101(f)(1).
24 The INA imposes different requirements on an alien to demonstrate good moral character
depending upon what benefit he or she is seeking. For example, most LPRs petitioning for
naturalization must have resided in the United States for at least five years and have shown
good moral character during this period. INA § 316(a); 8 U.S.C. § 1427(a). For a non-LPR
alien to be eligible for cancellation of removal from the United States, he or she must have
had a continuous presence in the United States for at least 10 years and good moral character
during that period. INA § 240A(b)(1); 8 U.S.C. § 1229b(b)(1).

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CRS-7
was a minor and the crime (as well as the alien’s release from any
imprisonment for the crime) occurred at least five years prior to the
pertinent application or (2) the maximum possible penalty for the
crime did not exceed one year’s imprisonment and the sentence
imposed did not exceed six months;
! violates a federal, state, or foreign law or regulation relating to a
controlled substance, other than a single offense of possessing 30
grams or less of marijuana;
! commits two or more offenses for which the aggregate sentence
imposed was at least five years;
! gives false information in attempting to receive a benefit under the
INA;
! has an income principally derived from illegal gambling activities;
! commits at least two gambling offenses for which the alien is
convicted;
! is in criminal confinement for at least 180 days; or
! has at any time been convicted of an aggravated felony.25
As previously mentioned, the INA’s listing of conduct barring a finding of good
moral character is not exclusive, and other activities — criminal or otherwise — may
also bar an alien from citizenship or immigration benefits on character grounds.
Among potential disqualifying conduct are an alien’s deliberate non-support of his
or her family, adultery that tended to destroy an existing marriage, and other
notorious unlawful conduct.26 Additionally, crimes committed before the “good
moral character” period may be considered.27
Major Immigration Consequences
for Criminal Aliens
Certain criminal conduct may have a substantial impact upon an alien’s ability
to enter or remain in the United States, and it may also affect the availability of
discretionary forms of immigration relief and the ability of an alien to become a U.S.
citizen. The following sections describe the major immigration consequences for
aliens who engage in certain criminal conduct.
25 However, a conviction for an aggravated felony before November 29, 1990 (other than for
murder) does not automatically preclude a finding of good moral character under INA §
101(f). 8 C.F.R. § 316.60(b)(1).
26 Id. at § 316.60(b)(3). See generally GORDON & MAILMAN, supra note 21, § 95.04[1][b].
27 8 C.F.R. § 316.60(a)(2).

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Designation as Inadmissible Alien
The INA categorizes certain classes of aliens as inadmissible, making them
“ineligible to receive visas and ineligible to be admitted to the United States.”28
Aliens who commit certain crimes are designated as inadmissible. Aliens designated
as inadmissible include any alien who, inter alia
! has been convicted of, admits having committed, or admits to acts
comprising essential elements of a crime involving moral turpitude
(other than a purely political offense), unless (1) the alien committed
only one crime and (2)(a) the crime was committed when the alien
was under the age of 18 and the crime was committed (and any
related incarceration ended) more than five years prior to the
application for admission or for a visa or (b) the maximum penalty
for the crime at issue did not exceed one year’s imprisonment and,
if convicted, the alien was not sentenced to more than six months;
! has been convicted of, admits having committed, or admits to acts
comprising essential elements of a federal, state, or foreign law
violation relating to a controlled substance;
! based on the knowledge or reasonable belief of a consular officer or
immigration officer, (1) is or has been an illicit trafficker in a
controlled substance, or knowingly is or has been an aider or abettor
of a controlled substance, or (2) is the spouse, son, or daughter of an
alien inadmissible for the foregoing reasons, and has, within the
previous five years, obtained any financial or other benefit from the
illicit activity of that alien, and knew or reasonably should have
known that the financial or other benefit was the product of such
illicit activity;
! has been convicted of two or more offenses for which the aggregate
sentence imposed was at least five years;
! is coming to the United States to engage in (or within 10 years of
applying for admission has engaged in) prostitution (including
procurement and receipt of proceeds) or is coming to the United
States to engage in another form of unlawful commercialized vice;
! committed a serious crime for which diplomatic immunity or other
form of immunity was claimed;
! (1) is listed as a trafficker in persons in a report under the
Trafficking Victims Protection Act or is known or reasonably
believed to have aided or otherwise furthered severe forms of human
trafficking or (2) is known or reasonably believed to be the adult
child or spouse of such an alien and knowingly benefitted from the
proceeds of illicit activity while an adult;
! based on the knowledge or reasonable belief of a consular officer or
immigration officer, is engaging, or seeks to enter the United States
to engage, in a federal offense of money laundering, or is or has been
a knowing aider, abettor, assister, conspirator, or colluder with
others in such an offense; or
28 INA § 212(a); 8 U.S.C. § 1182(a).

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! based on the knowledge or reasonable belief of a consular officer or
immigration officer, seeks to enter the United States to engage in
espionage, sabotage, export control violations, unlawful opposition
to the government, or other unlawful activity.29
Although not expressly listed as such, a conviction for an aggravated felony may
also make an alien inadmissible.30 Other types of unlawful conduct (which may also
be covered under criminal grounds) precluding admission include terrorist activities,
alien smuggling (with limited exception), immigration document fraud, illegal entry
into the United States, unlawful voting, international abduction of a child who is a
U.S. citizen, participation in genocide, and severe violations of religious freedom
while serving as a foreign government official.
Waivers. Various criminal grounds for inadmissibility are, by their own terms,
subject to exception. For example, the crime of moral turpitude category does not
cover certain juvenile or minor offenses.31 Further, even if a crime is covered, most
criminal grounds for inadmissibility may nevertheless be waived in a number of
circumstances. Authority to waive certain criminal grounds of inadmissibility is
contained in INA § 212(h).32 Criminal grounds for inadmissibility that may be
waived are
! crimes involving moral turpitude;
! a single offense of simple possession of 30 grams or less of
marijuana;
! multiple convictions for which at least five year’s imprisonment was
imposed;
! prostitution or other unlawful commercialized vices; and
! serious criminal activity for which the alien has asserted immunity.
INA § 212(h)(1) establishes that relevant immigration officials have discretion
to waive a designation of inadmissibility on account of the foregoing conduct if four
requirements are met. These requirements are that
! the alien is seeking admission as an LPR;
! the conduct making the alien inadmissible either involved
prostitution or another unlawful commercial vice or, in the case of
other criminal conduct, occurred more than 15 years before the date
of the alien’s application for a visa, entry or adjustment of status;
! the alien’s admission into the United States would not be contrary to
the national welfare, safety, or security of the United States; and
29 INA § 212(a); 8 U.S.C. § 1182(a).
30 As previously mentioned, a conviction for an aggravated felony bars an alien from being
found to have good moral character. Good moral character is a requisite for naturalization.
Aliens who are permanently ineligible for citizenship are inadmissible. INA § 212(a)(8); 8
U.S.C. § 1182(a)(8).
31 INA § 212(a)(2)(A)(ii); 8 U.S.C. § 1182(a)(2)(A)(ii).
32 8 U.S.C. § 1182(h).

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CRS-10
! the alien has been rehabilitated.33
An additional waiver is available for immediate family members under INA §
212(h)(1)(B) if
! the alien is seeking admission as an LPR;
! the alien is the spouse, parent, son, or daughter of a U.S. citizen or
LPR; and
! denial of admission would cause extreme hardship to the United
States citizen or lawfully resident spouse, parent, son, or daughter.34
A further circumstance where a waiver is available for inadmissible criminal
conduct involves alien spouses or children of U.S. citizens or LPRs, when those
aliens have been battered or subjected to extreme cruelty by the citizen or LPR.35
Certain aliens are barred from consideration for § 212(h) waivers. No waiver
is permitted for aliens who have been convicted of murder or criminal acts involving
torture, as well as attempts or conspiracies to commit murder or a criminal act
involving torture.36 Further, a waiver under § 212(h) is not available in the case of
an alien who has previously been admitted to the United States as an LPR if either
(1) since the date of such admission the alien has been convicted of an aggravated
felony or (2) the alien has not lawfully resided continuously in the United States for
at least seven years immediately preceding the date of initiation of proceedings to
remove the alien from the United States.37
In addition to § 212(h) waivers, criminal grounds may be waived for aliens
seeking temporary admission as nonimmigrants, such as those seeking to enter the
United States as tourists.38 Also, certain permanent residents may seek waivers
through cancellation of removal, which will be discussed later.39
Deportation
The criminal grounds for deportation cover both broad categories and specific
crimes. Among those deportable on criminal grounds is any alien who
! is convicted of a single crime involving moral turpitude that was
committed within five years of admission and that is punishable by
imprisonment of at least one year;
33 INA § 212(h)(1)(A); 8 U.S.C. § 1182(h)(1)(A).
34 8 U.S.C. § 1182(h)(1)(B).
35 INA § 212(h)(1)(C); 8 U.S.C. § 1182(h)(1)(C).
36 8 U.S.C. § 1182(h).
37 Id.
38 INA § 212(d)(3); 8 U.S.C. § 1182(d)(3).
39 See infra at 12-13.

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! is convicted of two or more crimes involving moral turpitude not
arising from a single scheme of misconduct;
! is convicted of an aggravated felony at any time after admission into
the United States;
! is convicted after admission of any violation of a federal, state, or
foreign law or regulation relating to a controlled substance (other
than a single offense for possessing 30 grams or less of marijuana
for personal use);
! is, or at any time after admission has been, a drug abuser or drug
addict;
! is convicted at any time after admission of an offense related to a
firearm or destructive device (including unlawful commerce relating
to, possession, or use of a firearm or destructive device);
! is convicted at any time of an offense related to espionage, sabotage,
or treason or sedition, if the offense is punishable by imprisonment
of five years or more;
! is convicted of an offense under the Military Selective Service Act
or the Trading with the Enemy Act;
! is convicted of an offense under 18 U.S.C. § 758 (high-speed flight
from an immigration checkpoint);
! is convicted of an offense related to launching an expedition against
a country with which the United States is at peace;
! is convicted of threatening by mail the President, Vice President, or
other officer in the line of presidential succession;
! is convicted at any time after entry of a crime of domestic violence,
stalking, child abuse, child neglect, or child abandonment; or
! violates a protection order related to violence or harassment.40
Waivers. Crimes involving moral turpitude, aggravated felonies, and high-
speed flight from an immigration checkpoint may all be automatically waived as
grounds for deportability upon the alien receiving a full and unconditional pardon by
the President or governor.41 Cancellation of removal as a form of discretionary relief,
which is discussed below, and § 212(h) waivers of inadmissibility, which are
discussed above, may also be relevant in deportation cases.
Denial of Discretionary Relief
In addition to providing for discretionary waivers, the INA provides designated
immigration authorities with the power to grant an alien asylum, cancel removal
proceedings against him, permit his voluntary departure from the United States, or
adjust the alien’s status under registry provisions. However, authority to grant these
remedies is circumscribed with respect to certain types of criminal aliens.
Asylum. Although asylum is a discretionary remedy for aliens who face
persecution, it is unavailable to an alien who (1) “[h]aving been convicted...of a
40 INA § 237(a)(2); 8 U.S.C. § 1227(a)(2).
41 INA § 237(a)(2)(A)(v); 8 U.S.C. § 1227(a)(2)(A)(v).

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particularly serious crime” (including an aggravated felony42 or an offense designated
by the Attorney General as “particularly serious”), constitutes a danger to the
community;” or (2) is reasonably believed to have committed a serious nonpolitical
offense outside the United States (including such offenses as may be designated by
the Attorney General).43 Further, an alien who is involved in terrorist activities, is a
danger to national security, or has engaged in persecution of any person on account
of race, religion, nationality, political opinion or membership in a particular social
group is also ineligible for asylum.44
Withholding of Removal. Apart from asylum is the separate remedy of
withholding of removal. Like asylum, withholding of removal is premised upon a
showing of prospective persecution of an alien if removed to a particular country.45
Withholding of removal differs from asylum in (1) requiring a higher standard of
proof; (2) limiting relief to the claimant (as opposed to also including the claimant’s
spouse and minor children); (3) failing to allow for adjustment to LPR status; and (4)
being a mandatory rather than discretionary form of relief for qualifying aliens.
Although the remedy of withholding is stated in mandatory terms, otherwise eligible
aliens are, with limited exception, disqualified under criminal grounds similar to
those that apply to asylum.46 The primary difference, however, is that not all
aggravated felonies automatically bar withholding of removal. Instead, relief is
barred only if the alien has been convicted of one or more aggravated felonies for
which the aggregate sentence imposed was five years or more.47
Cancellation of Removal. In 1996, the INA was amended to combine two
types of discretionary relief for long-term alien residents — “§ 212(c)” relief for
LPRs who had resided in the U.S. for an extended period and suspension of
deportation for other long-term aliens — into a new remedy called cancellation of
removal. Cancellation of removal, in turn, maintains some of the distinctions that
appeared under the forms of relief that preceded it.
Under provisions corresponding with earlier INA provisions concerning
suspension of deportation, the Attorney General may cancel the removal of certain
otherwise inadmissible or deportable non-LPRs if they have been in the United States
continuously for at least 10 years and their removal would result in exceptional and
42 For purposes of § 208, an alien who has been convicted of an aggravated felony is
considered to have been convicted of a particularly serious crime. INA § 208(b)(2)(B)(i);
8 U.S.C. § 1158(b)(2)(B)(i).
43 INA § 208(b)(2); 8 U.S.C. § 1158(b)(2).
44 INA § 208(b)(2); 8 U.S.C. § 1158(b)(2).
45 See INA § 241(b)(3); 8 U.S.C. § 1231(b)(3). See also 8 C.F.R. § 208.16.
46 INA § 241(b)(3)(B); 8 U.S.C. § 1231(b)(3)(B). However, under regulations implementing
the United Nations Convention Against Torture, no alien is permitted be removed to a
country when it is more likely than not that he would face torture there, regardless of
whether he or she would be otherwise ineligible for withholding of removal. 8 C.F.R. §§
208.16-18, 1208.16-18.
47 INA § 241(b)(3); 8 U.S.C. § 1231(b)(3).

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extremely unusual hardship for immediate family members.48 However, certain
criminal activity makes an alien ineligible for cancellation of removal despite
whatever roots the alien has established in the United States. Disqualifying criminal
activity includes convictions of crimes that preclude a finding of good moral
character and crimes that fall within the criminal grounds for inadmissibility or
deportation.49 Civil immigration document fraud also precludes relief.50
Additionally, “continuous residence” for purposes of qualifying for relief stops on the
commission of an offense that would render the alien inadmissible.51
Under provisions that correspond to relief previously available under INA §
212(c), the Attorney General may cancel the removal of an alien who has been an
LPR for at least five years, if the alien has resided in the United States continuously
for at least seven years and has not been convicted of an aggravated felony.52 Further,
“continuous residence” for purposes of qualifying for relief stops upon the
commission of an offense that would render the alien inadmissible.53
Voluntary Departure. Through a grant of voluntary departure, an otherwise
deportable alien may depart the United States without the stigma and legal
consequences that would attach to a compulsory removal order. There are two
standards for voluntary departure, depending on whether permission to leave
voluntarily is sought before or after removal proceedings against the alien are
completed. If voluntary departure is sought before proceedings are initiated (e.g.,
upon the alien being arrested by an immigration enforcement officer) or completed,
the only criminal disqualification is for conviction of an aggravated felony (terrorist
activities are also disqualifying).54 If voluntary departure is sought after removal
proceedings are completed, the alien must not have been convicted of an aggravated
felony and must also have been a person of good moral character for at least five
years preceding.55
Temporary Protected Status. In order to qualify for asylum or withholding
of removal, an alien must show that he or she would personally face persecution.
Aliens whose lives have been disrupted by generalized violence or natural disaster
may not qualify on that basis alone. However, the INA permits temporary haven for
nationals of countries that have been designated as experiencing widespread
upheaval.56 At the same time, relief is granted on an individual basis, and an
48 INA § 240A(b)(1); 8 U.S.C. § 1229b(b)(1).
49 INA §§ 240A(b)(1)(B)-(C); 8 U.S.C. §§ 1229b(b)(1)(B)-(C).
50 INA § 240A(b)(1)(C); 8 U.S.C. § 1229b(b)(1)(C).
51 INA § 240A(d); 8 U.S.C. § 1229b(d).
52 INA § 240A(a); 8 U.S.C. § 1229b(a).
53 INA § 240A(d); 8 U.S.C. § 1229b(d).
54 INA § 240B(a)(1); 8 U.S.C. § 1229c(a)(1).
55 INA § 240B(b)(1); 8 U.S.C. § 1229c(b)(1).
56 INA § 244; 8 U.S.C. § 1254a. For further background on the availability of temporary
(continued...)

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otherwise eligible alien shall be denied protection if he or she is inadmissible on
criminal grounds related to (1) crimes involving moral turpitude, (2) multiple
criminal convictions, (3) or drug offenses (other than a single offense for possessing
30 grams or less of marijuana).57 Additional, overlapping categories of aliens who
are disqualified from receiving temporary protected status are those who (1) have
been convicted of one felony or two or more misdemeanors in the United States or
(2) who would be disqualified from asylum due to criminal conduct.58
Adjustment of Status. Under certain circumstances, an alien with
nonimmigrant status may adjust to LPR status.59 Certain aliens without legal status
may also adjust if they had a preference petition or labor certification application
filed on their behalf as of April 30, 2001, or under certain other circumstances.60
Otherwise eligible aliens are barred from adjustment if they are inadmissible,
including those who are inadmissible on criminal grounds.
Registry. The INA has long contained authority for the adjustment to LPR
status for aliens who have lived in the United States for an extended period. Known
as the registry provision,61 this authority now allows for the adjustment of aliens who
have lived in the United States since before 1972.62 However, aliens who are
inadmissible on criminal grounds are ineligible for adjustment, as are aliens who lack
good moral character.63
Naturalization Restrictions
An essential requirement for becoming a U.S. citizen through naturalization is
that the applicant establish that he or she has been, and continues to be, a person of
good moral character.64 An LPR seeking naturalization is required to maintain good
moral character for at least five years preceding his or her application for
naturalization; five years being the minimum period of time that a person lawfully
56 (...continued)
protected status for certain aliens, see CRS Report RS20844, Temporary Protected Status:
Current Immigration Policy and Issues, by Ruth Ellen Wasem and Karma Ester.
57 INA § 244(c)(2)(A); 8 U.S.C. § 1254a(c)(2)(A).
58 INA § 244(c)(2)(B); 8 U.S.C. § 1254a(c)(2)(B).
59 INA § 245; 8 U.S.C. § 1255. See generally CRS Report RL32235, U.S. Immigration
Policy on Permanent Admissions, by Ruth Ellen Wasem.
60 INA § 245(i)(1); 8 U.S.C. § 1255(i)(1).
61 A more detailed explanation on the registry provision can be found in CRS Report
RL30578, Immigration: Registry as Means of Obtaining Lawful Permanent Residence, by
Andorra Bruno.
62 INA § 249; 8 U.S.C. § 1259.
63 INA § 249; 8 U.S.C. § 1259.
64 INA § 316; 8 U.S.C. § 1427.

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admitted into the United States must continuously reside in the country before
applying for naturalization.65
As discussed previously, certain criminal acts may disqualify an alien from
being found to possess good moral character.66 Pursuant to INA § 101(f), certain
listed categories of criminal conduct automatically preclude an alien from being
found to possess good moral character. This listing is not exclusive, and other
conduct — criminal or otherwise — may also prevent a finding of good moral
character, including crimes that occur before the statutory period requiring “good
moral character” actually begins. For a more detailed discussion of the crimes that
preclude a finding of good moral character, refer to the section of this report entitled
Crimes Affecting Assessment of Good Moral Character.
Possible Legislative Issues in the 110th Congress
Several legislative proposals made during the 110th Congress contained
provisions modifying the immigration consequences of criminal activity. S. 1348,
the Comprehensive Immigration Reform Act of 2007, which was introduced on May
9, 2007, by Senate Majority Leader Harry Reid, served as the marker for Senate
debate on comprehensive immigration reform that began the week of May 21. As
introduced, the provisions of S. 1348 concerning the immigration consequences of
criminal activity were virtually identical to those contained in the version of S. 2611
that passed the Senate in the 109th Congress. S.Amdt. 1150, the Secure Borders,
Economic Opportunity, and Immigration Reform Act of 2007, which had been
proposed in the nature of a substitute to S. 1348, contained some (but not all) of the
proposed modifications to the immigration consequences of criminal activity
originally contained in S. 1348. S. 1639, introduced by Senator Edward Kennedy on
June 20, 2007, contained provisions modifying the immigration consequences of
criminal activity that are largely identical to those contained in S.Amdt. 1150, as it
was amended during floor debate.67
Among other things, both S. 1639 and S.Amdt. 1150, as amended during floor
debate, would have
! made inadmissible and deportable those aliens who violate certain
provisions of chapter 75 of title 18, U.S. Code (as amended),
including immigration document and passport fraud and
immigration-related marriage fraud;
! made aliens who are members of criminal street gangs inadmissible,
deportable, and ineligible for TPS; and
65 INA § 316(a); 8 U.S.C. § 1427(a).
66 See supra at 5-7.
67 See S.Amdt. 1333, Cong. Rec. S7093-7095 (introduced by Sen. Kennedy, and erroneously
labeled S.Amdt. 1303) (heightening the immigration penalties for certain criminal conduct).

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! made inadmissible those aliens who fail to comply with a lawful
request for biometric data, subject to the waiver of the Secretary of
Homeland Security;
! made inadmissible and deportable convicted sex offenders who fail
to register as such;
! made inadmissible those aliens who are convicted of crimes of
domestic violence, child abuse, stalking, or violation of protective
orders;
! made inadmissible those aliens who are convicted of a felony DUI
offense, so long they are sentenced to more than one year’s
imprisonment; and
! made inadmissible those aliens who are convicted of unlawfully
having, using, buying, or selling a firearm, so long as such aliens are
sentenced to more than one year’s imprisonment.
Many (but not all68) of these provisions were also found in S. 1348, as introduced.
Unlike S. 1639 and S.Amdt. 1150, S. 1348 as introduced would have also
! expanded the definition of “aggravated felony” to cover additional
offenses, including (1) the unlawful entry or reentry of an alien, if
the alien is sentenced to imprisonment for at least a year; (2) any
offense under chapter 75 of title 18, U.S. Code (concerning
immigration document and passport fraud) for which the term of
imprisonment was at least one year, except in the case of most first-
time offenses committed to assist a family member in violating the
INA; (3) a third drunk driving conviction by an alien; and (4)
soliciting, aiding, abetting, counseling, commanding, inducing, or
procuring the commission of any crime constituting an aggravated
felony;
! made inadmissible aliens who have falsely claimed U.S. nationality
(currently, aliens are expressly made inadmissible if they falsely
claim U.S. citizenship); or
! specified that an alien who is convicted of an aggravated felony shall
not be considered to have good moral character for naturalization
purposes, regardless of whether the crime was classified as an
aggravated felony at the time of conviction.
During the second session of the 110th Congress, H.R. 5690, which has since
been enacted on July 1, 2008 as P.L. 110-257, was introduced. This law provides
certain relief from inadmissibility to members of the African National Congress
(ANC). Among other things, the law provides the Secretary of State, in consultation
with the Attorney General and the Secretary of Homeland Security, or the Secretary
of Homeland Security, in consultation with the Secretary of State and Attorney
68 Notably, S. 1348 as introduced does not contain similar provisions concerning the
exclusion and/or removal of convicted sex offenders who fail to register; aliens convicted
of domestic violence, child, abuse, stalking, or violation of protective orders; aliens
convicted of felony DUI offenses; and aliens convicted of felony firearm offenses.

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General, the unreviewable discretion to exempt an alien from inadmissibility for
crimes of moral turpitude, multiple criminal convictions, or terrorist activities so long
as these crimes or activities were committed in order to oppose apartheid rule in
South Africa.69 The law also removes aliens, who qualify for an exemption, from
government databases that are used to determine the admissibility and inadmissibility
of aliens into the United States.70
69 H.R. 5690, 110th Cong. § 2 (2008). See also INA § 212(a)(2)(A), (a)(2)(B), (a)(3)(B)
(codified at 8 U.S.C. § 1182(a)(2)(A), (a)(2)(B), (a)(3)(B)).
70 H.R. 5690, 110th Cong. § 3 (2008).

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