Immigration Consequences of Criminal Activity May 28, 2021
Congress’s power to create rules governing the admission of non-U.S. nationals (aliens)
has long been viewed as plenary. In the Immigration and Nationality Act (INA), as
Hillel R. Smith
amended, Congress has specified grounds for the exclusion or removal of aliens,
Legislative Attorney
including because of criminal activity. Some criminal offenses, when committed by an

alien present in the United States, may render that alien subject to removal from the
country. And certain criminal offenses may preclude an alien outside the United States

from being either admitted into the country or permitted to reenter following an initial departure. Criminal
conduct also may disqualify an alien from certain forms of relief from removal (e.g., asylum) or prevent the alien
from becoming a U.S. citizen. In some cases, the INA directly identifies particular offenses that carry immigration
consequences; in other cases, federal immigration law provides that a general category of crimes, such as “crimes
involving moral turpitude” or an offense defined by the INA as an “aggravated felony,” may render an alien
ineligible for certain benefits and privileges under immigration law.
The INA distinguishes between the treatment of lawfully admitted aliens and those who are either seeking initial
admission into the country or who are present in the United States without having been lawfully admitted by
immigration authorities. Lawfully admitted aliens may be removed if they engage in conduct that renders them
deportable, whereas aliens who have not been admitted into the United States may be barred from admission or
removed from the country if they have engaged in conduct rendering them inadmissible. Although the INA
designates certain criminal activities and categories of criminal activities as grounds for inadmissibility or
deportability, the respective grounds are not identical. Moreover, a conviction for a designated crime is not always
required for an alien to be disqualified on criminal grounds from admission into the United States. But for nearly
al criminal grounds for deportation, a “conviction” (as defined by the INA) for the underlying offense is
necessary. Additional y, although certain criminal conduct may disqualify an alien from various immigration-
related benefits or forms of relief, the scope of disqualifying conduct varies depending on the particular benefit or
form of relief at issue.

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ongress’s power to establish rules for the admission of non-U.S. nationals (aliens1) has
long been viewed as plenary.2 In the Immigration and Nationality Act (INA), as amended,3
C Congress has specified various grounds for the exclusion or removal of aliens, including
grounds related to the commission of criminal conduct.4 Some criminal offenses committed by an
alien who is present in the United States may render that alien subject to removal from the
country.5 And certain offenses may preclude an alien outside the United States from either being
admitted into the country or being permitted to reenter following an initial departure.6 Further,
committing certain crimes may disqualify an alien from many forms of relief from removal,7
prevent an alien from adjusting to lawful permanent resident (LPR) status,8 or bar an LPR from
naturalizing as a U.S. citizen.9
This report provides an overview of the major immigration consequences of criminal activity. The
report begins by briefly discussing the laws governing the immigration consequences of criminal
conduct and the government entities charged with administering U.S. immigration laws. Next, the
report enumerates specific crimes and categories of crimes that may render an alien inadmissible
or deportable. Then, the report discusses the potential impact criminal activity may have for an
alien’s eligibility to obtain various forms of relief from removal or exclusion, including relief
through a waiver of application of certain grounds for removal, cancel ation of removal,
voluntary departure, asylum, or withholding of removal. Next, the report discusses criminal
activity affecting an alien’s ability to adjust to LPR status or naturalize as a U.S. citizen. Final y,
the report examines select legal issues related to the intersection of criminal law and immigration,
including the responsibilities of criminal defense attorneys representing alien defendants, as wel

1 T he 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). Some have criticized the statutory term as offensive, but avoiding its use in legal analysis is difficult
because the term is woven deeply into the statutory framework. See T rump v. Hawaii, 138 S. Ct. 2392, 2443 n.7 (2018)
(Sotomayor, J., dissenting) (“It is important to note . . . that many consider ‘using the term “alien” to refer to other
human beings’ to be ‘offensive and demeaning.’ I use the term here only where necessary ‘to be consistent with the
statutory language’ that Congress has chosen and ‘to avoid any confusion in replacing a legal term of art with a more
appropriate term.’”) (quoting Flores v. United States Citizenship & Immigration Servs., 718 F.3d 548, 551 ̶ 52 n. 1 (6th
Cir. 2013)).
2 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 R46142, The Power of Congress and the Executive to Exclude Aliens:
Constitutional Principles, by Ben Harrington.
3 See 8 U.S.C. § 1101, et seq.
4 See id. §§ 1182(a)(2), 1227(a)(2).
5 See, e.g., id. § 1227(a)(2).
6 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 thereaf ter 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).
7 See, e.g., id. §§ 1158(b)(2), 1182(h)(2), 1229b(a), 1229c(b)(1).
8 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 Sec., Lawful Perm anent Residents (LPR),
https://www.dhs.gov/immigration-statistics/lawful-permanent -residents (last visited May 1, 2021).
9 See, e.g., 8 U.S.C. §§ 1101(f), 1427(a).
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as judicial interpretation of particular INA provisions that may render aliens who have been
convicted of certain crimes removable.
Administration of Immigration Laws
Original y enacted in 1952, the INA unified the country’s immigration laws under one umbrel a
framework.10 A number of federal agencies possess distinct responsibilities relating to the
administration of the country’s immigration laws, including the Department of Justice, the State
Department, and, following the enactment of the Homeland Security Act of 2002, the Department
of Homeland Security (DHS).
Before Congress enacted the Homeland Security Act most U.S. immigration laws—particularly
as they related to enforcement activities and providing relief or services to aliens within the
United States—were primarily administered by the Attorney General, who largely delegated his
power to two agencies within the Department of Justice (DOJ): the Immigration and
Naturalization Service (INS), which carried out enforcement and service activities, and the
Executive Office for Immigration Review (EOIR), which carried out adjudication activities. 11
The Homeland Security Act, as relevant here, dismantled the INS, created DHS, and transferred
many of the Attorney General’s immigration administration responsibilities to the DHS
Secretary.12 Thus, the DHS Secretary is now “charged with the administration and enforcement of
[the INA] and al 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
President, Attorney General” and other executive officers.13
Three components of DHS—Customs and Border Protection (CBP), Immigration and Customs
Enforcement (ICE), and U.S. Citizenship and Immigration Services (USCIS)—carry out the
major functions of the former INS.14 In particular, ICE is the primary investigative arm of
immigration enforcement within the United States.15 When ICE determines that an alien located
within the U.S. interior has violated the immigration laws—for example, by committing certain
crimes—DHS typical y apprehends the alien and initiates removal proceedings against the alien
before an immigration judge within DOJ’s EOIR.16 CBP, on the other hand, is authorized to
enforce immigration laws at the border, which involves responsibilities including the inspection

10 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,
Im m igration & Nationality Act, https://www.uscis.gov/laws/immigration-and-nationality-act (last visited May 1, 2021).
11 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 t he 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”).
12 USCIS History Office & Library, supra note 10, 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.
13 8 U.S.C. § 1103(a)(1); see also 8 C.F.R. § 2.1.
14 GORDON & MAILMAN, ET AL., IMMIGRATION LAW & PROCEDURE, § 1.02, Scope, Agencies, and Sources.
15 8 C.F.R. § 100.1. See generally CRS Legal Sidebar LSB10362, Immigration Arrests in the Interior of the United
States: A Brief Prim er, by Hillel R. Smith.
16 8 U.S.C. §§ 1229(a), 1229a(b)(4)(A). See generally CRS In Focus IF11536, Formal Removal Proceedings: An
Introduction, by Hillel R. Smith.
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and admission of aliens seeking entry into the United States and the expedited removal of certain
inadmissible aliens apprehended at or near the border while seeking entry to the United States.17
DHS, through USCIS, also plays a role in determining eligibility and approving applications for
certain forms of relief and immigration benefits (e.g., granting asylum, adjusting status, or
naturalizing).18
Despite the transfer of most enforcement functions to DHS, removal proceedings are primarily
conducted by EOIR within DOJ.19 During those proceedings, an immigration judge typical y
assesses an alien’s removability and eligibility for relief from removal.20 At the removal
hearing—a civil proceeding21—aliens general y have a right to legal counsel at their own
expense.22An immigration judge makes an initial removability determination, which may be
appealed to the Board of Immigration Appeals (BIA), the highest administrative body charged
with interpreting and applying federal immigration laws.23 (The Attorney General is vested with
discretion to review those appeals as wel .)24 Additional y, as was the case before enactment of
the Homeland Security Act, Attorney General rulings “with respect to al questions of law shal be
controlling.”25
Federal circuit courts of appeals have exclusive jurisdiction to adjudicate petitions for review of
final removal orders issued in proceedings before EOIR.26 However, the INA limits what issues
the appel ate courts may review. For instance, the INA limits federal courts’ jurisdiction over
cases involving an alien ordered removed based on certain criminal activity, unless the alien
raises a constitutional claim or question of law (e.g., whether particular conduct an alien al egedly
committed is of the type of conduct covered by a particular removal ground in the INA).27

17 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 generally
CRS Legal Sidebar LSB10559, U.S. Custom s and Border Protection’s Powers and Lim itations: A Brief Prim er, by
Hillel R. Smith.
18 See 6 U.S.C. § 271(b) (describing USCIS’s adjudicatory functions); 8 C.F.R. § 100.1 (delegating authority to
USCIS).
19 P.L. 107-296, 116 Stat. 2135, § 1102; 8 C.F.R. § 1003.
20 See 8 C.F.R. § 1003.9-1003.10. See generally CRS In Focus IF11536, Formal Removal Proceedings: An
Introduction, by Hillel R. Smith.
21 See, e.g., Arizona v. United States, 567 U.S. 387, 396 (2012) (“Removal is a civil, not criminal matter.”).
22 See 8 U.S.C. § 1229(a)(1)(E).
23 8 C.F.R. §§ 1003.1-1003.8.
24 Id. § 1003.1(h).
25 8 U.S.C. § 1103(a)(1).
26 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 (9th Cir. 2011) (providing that aliens held in custody may file habeas corpus petitions in federal
district court).
27 8 U.S.C. §§ 1252(a)(2)(C), (D); see Estrada-Ramos v. Holder, 611 F.3d 318, 321 (7th 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 (7th 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)).
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Another executive branch agency, the State Department, takes the lead role in processing the
visas that aliens must general y obtain (with notable exceptions)28 to travel to, and be admitted
into, the United States.29 Immigrant visas are granted to aliens seeking lawful permanent
residency in the United States, whereas nonimmigrant visas are issued to aliens seeking
temporary admission into the United States.30 In both cases, the alien seeking a visa must submit
supporting documentation to, and interview with, a consular official31 typical y located in the
country where the alien resides.32 Eligibility for a particular visa depends on specified criteria set
forth in the INA.33 And, as wil be discussed in further detail below, certain criminal activity may
render an alien ineligible to obtain a visa to enter the United States.
Criminal Grounds for Inadmissibility and
Deportation
Aliens who commit certain crimes may be ineligible to enter or remain in the United States. The
term “inadmissible” is used to describe aliens who are general y ineligible to receive visas or
otherwise be lawfully admitted into the United States.34 “Deportable” refers to aliens who have
been lawfully admitted to the United States, but have engaged in proscribed activities that render
them removable from the country.35

28 See 8 U.S.C. §§ 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 May 5, 2021). 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 T aiwan 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 May 5, 2021); 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 & Berm uda, https://travel.state.gov/content/travel/en/us-
visas/tourism-visit/citizens-of-canada-and-bermuda.html (last visited May 5, 2021).
29 See 8 U.S.C. § 1104(c) (creating a Visa Office within the State Department).
30 See id. § 1202; What is the Difference between an Immigrant Visa vs. Nonimmigrant Visa?, U.S. CUSTOMS &
BORDER PROT., https://help.cbp.gov/s/article/Article-72?language=en_US (last visited May 5, 2021). See also supra
note 28 (describing some exceptions to visa requirements).
31 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).
32 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 May 5, 2021); 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 May 5, 2021); Business, U.S. DEP ’T OF STATE, BUREAU OF CONSULAR AFFAIRS,
https://travel.state.gov/content/travel/en/us-visas/business.html (last visited May 5, 2021); Em ploym ent, U.S. DEP ’T OF
STATE, BUREAU OF CONSULAR AFFAIRS, https://travel.state.gov/content/travel/en/us-visas/employment.html (last visited
May 5, 2021); 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 May 5, 2021). 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).
33 See, e.g., 8 U.S.C. §§ 1101(a)(15), (a)(20), 1182.
34 Id. § 1182(a).
35 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).
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Criminal Grounds of Inadmissibility Under INA § 212(a)(2)
The criminal grounds for inadmissibility are primarily set forth in INA § 212(a)(2).36 The criminal
grounds are a mix of specific crimes and categories of crimes with varying levels of proof
required for the crime to render an alien inadmissible.37
Table 1. Criminal Grounds of Inadmissibility Under INA § 212(a)(2)
Ground of Inadmissibility
Covered Aliens
Exceptions
Crimes involving moral turpitude
An alien who has been convicted of,
Does not apply to an alien who
admitted to having committed, or
committed only one crime if (1) the
admitted to committing acts that
crime was committed when the
constitute the essential elements of
alien was under 18 and the crime
a “crime involving moral turpitude,”
was committed (and the alien
unless the crime was a purely
released from confinement) more
political offense (or an attempt or
than five years before applying for
conspiracy to commit such a crime)
admission; or (2) the maximum
penalty for the crime of conviction
does not exceed imprisonment for
more than one year and the alien
was sentenced to no more than six
months’ imprisonment
Control ed substance offenses
An alien who has been convicted of,
None
admitted to having committed, or
admitted to committing acts that
constitute the essential elements of
a violation of any federal, state, or
foreign control ed substance law (or
an attempt or conspiracy to commit
such a crime)
Multiple criminal convictions
An alien who has been convicted of
None
two or more offenses for which the
aggregate sentences were five or
more years of confinement
Drug trafficking
An alien who immigration
None
authorities know, or have reason to
believe, has been involved in drug
trafficking (includes alien’s spouse,
son, or daughter if they have, within
the previous five years, obtained
any financial or other benefit from
the drug trafficking activity and
knew or reasonably should have
known that the financial or other
benefit resulted from such activity)

36 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).
37 Id. § 1182(a)(2).
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Ground of Inadmissibility
Covered Aliens
Exceptions
Prostitution and commercialized
An alien who is coming to the
None
vice
United States to engage in
prostitution, has engaged in
prostitution within 10 years of
applying for admission or
adjustment of status, has procured
or attempted to procure or import
prostitutes or persons for the
purpose of prostitution within that
10-year period, has received the
proceeds of prostitution during that
10-year period, or is coming to the
United States to engage in another
unlawful commercialized vice
Serious criminal activity
An alien who has been involved in
None
serious criminal activitya in the
United States, gained immunity
from prosecution, and, as a result,
departed the United States
Human trafficking
An alien who has committed or
Does not apply to a son or
conspired to commit a human
daughter of human trafficker who
trafficking offense in the United
was a child at the time of receiving
States or abroad, or who the U.S.
benefit from human trafficking
government knows or has reason
activity
to believe has been involved in
severe forms of human traffickingb
(includes alien’s spouse, son, or
daughter if they have, within the
previous five years, obtained any
financial or other benefit from that
activity, and knew or reasonably
should have known that such
benefit resulted from the activity)
Money laundering
An alien who relevant immigration
None
authorities know, or have reason to
believe, has engaged in, is engaging
in, or seeks to enter the United
States to engage in money
launderingc (including aiding or
conspiring in money laundering)
Source: 8 U.S.C. §§ 1182(a)(2)(A), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(2)(E), (a)(2)(H), (a)(2)(I).
Notes:
a. The INA defines a “serious criminal offense” as any felony, a “crime of violence,” or any crime of reckless
driving or driving while under the influence of alcohol or a prohibited substance that results in personal
injury to another person. 8 U.S.C. § 1101(h).
b. See 22 U.S.C. § 7102(9) (defining “severe forms of trafficking in persons”).
c. See 18 U.S.C. §§ 1956-1957 (money laundering offenses).
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Criminal Grounds of Deportability Under INA § 237(a)(2)
Criminal grounds for deportation are primarily listed in INA § 237(a)(2).38 Like the
inadmissibility grounds, criminal deportation grounds also consist of specific crimes and
categories of crimes. One main difference between the criminal grounds for inadmissibility and
deportability is that the deportability grounds largely require the alien to have been convicted of
the listed offense, whereas the inadmissibility grounds for certain crimes may only require that
the alien admitted committing the offense or that immigration authorities have “reason to believe”
the alien committed the proscribed conduct.39
Table 2. Criminal Grounds of Deportation Under INA § 237(a)(2)
Ground of Deportability
Covered Aliens
Exceptions
Crimes involving moral turpitude
Aliens convicted of a crime
Does not apply if the alien is
involving moral turpitude
granted a ful and unconditional
(committed within 10 years of
pardon fol owing the criminal
admission in the case of an LPR, or
conviction
five years after admission for other
categories of aliens) for which a
sentence of imprisonment for one
year or longer may be imposed
Multiple criminal convictions
Aliens convicted of two or more
Does not apply if the alien is
crimes involving moral turpitude
granted a ful and unconditional
that did not arise out of a single
pardon fol owing the criminal
scheme of criminal misconduct
conviction
Aggravated felonies
Aliens who were convicted of an
Does not apply if the alien is
aggravated felony
granted a ful and unconditional
pardon fol owing the criminal
conviction
High-speed flight
Aliens convicted of engaging in a
Does not apply if the alien is
high-speed flight from an
granted a ful and unconditional
immigration checkpointa
pardon fol owing the criminal
conviction
Failure to register as a sex offender
Aliens convicted for failing to
None
register as a sex offender under the
Sex Offender Registration and
Notification Act (SORNA)b
Control ed substance offenses
Aliens convicted of violating any
Does not apply if conviction is for a
federal, state, or foreign control ed
single offense of possessing for
substancec law or regulation
personal use 30 grams or less of
(including a conspiracy or attempt
marijuana
to violate such law or regulation)

38 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 exa mple, 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).
39 See e.g., Lopez-Molina v. Ashcroft, 368 F.3d 1206, 1209 (9th 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).
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Ground of Deportability
Covered Aliens
Exceptions
Certain firearm offenses
Aliens convicted of unlawful y
None
purchasing, sel ing, offering for sale,
exchanging, using, owning,
possessing, or carrying a firearm or
destructive deviced (including an
attempt or conspiracy to engage in
such activity)
Miscel aneous crimes
Aliens convicted of offenses related
None
to espionage, sabotage, treason, or
sedition for which a term of
imprisonment of five or more years
may be imposed; or offenses
involving threats against the
President, participation in a military
operation against a United States
al y, a violation of any provision of
the Military Selective Service Act or
the Trading with the Enemy Act, a
violation of certain restrictions and
prohibitions relating to United
States entry and departure, or the
importation of an alien into the
United States for prostitutione
Domestic violence offenses
Aliens convicted of a crime of
None
domestic violence, stalking, child
abuse, child neglect, or child
abandonment
Violators of protective orders
Aliens who have violated a
None
protective order related to
harassment or domestic violence
Human trafficking offenses
Aliens who have committed human
Does not apply to a son or
trafficking offenses as described in 8
daughter of human trafficker who
U.S.C. § 1182(a)(2)(H)
was a child at the time of receiving
benefit from human trafficking
activity
Source: 8 U.S.C. §§ 1227(a)(2)(A)(i), (a)(2)(A)(i ), (a)(2)(A)(i i), (a)(2)(A)(iv), (a)(2)(A)(v), (a)(2)(B)(i), (a)(2)(C),
(a)(2)(D), (a)(2)(E).
Notes:
a. See 18 U.S.C. § 758 (high-speed flight offenses).
b. See id. § 2250.
c. See 21 U.S.C. § 802 (defining a “control ed substance”).
d. See 18 U.S.C. § 921(a) (defining “firearm” and “destructive device”).
e. See 8 U.S.C. § 1227(a)(2)(D) (describing offenses under 18 U.S.C. §§ 791-799, 2151-2157, 2381-2391; 8
U.S.C. §§ 1185 and 1328; 18 U.S.C. §§ 871 and 960; and 50 U.S.C. App. §§ 1 and 451).
Crime Involving Moral Turpitude
Both the criminal grounds of inadmissibility and deportability under the INA reference a “crime
of moral turpitude” as one of the bases for denying admission or deporting an alien from the
United States. The federal courts and legal community have long grappled over the meaning of
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the term “crime involving moral turpitude” (alternatively known as “crime of moral turpitude”).40
Neither the INA nor any earlier immigration law defines the term.41 Some federal appel ate courts
have opined that the term’s legislative history, or lack thereof, “leaves no doubt ... that Congress
left the term ‘crime involving moral turpitude’ to future administrative and judicial
interpretation.”42 According to the BIA, moral turpitude “refers general y to conduct that shocks
the public conscience as being inherently base, vile, or depraved, and contrary to accepted rules
of morality and the duties owed between persons and to society in general.”43 In addition, moral
turpitude, according to the BIA, involves “malicious intention” and actions “contrary to justice,
honesty, principle, or good morals.”44
The federal courts general y agree that a crime that is inherently fraudulent or involves an intent
to defraud is a crime involving moral turpitude.45 It is less settled, however, when other,
nonfraudulent crimes constitute crimes involving moral turpitude. Indeed, before Attorney
General Michael Mukasey’s 2008 opinion in Matter of Silva-Trevino (Silva-Trevino I), which set
forth a standard for assessing whether a crime involved moral turpitude, there had been an
“absence of an authoritative administrative methodology for resolving moral turpitude inquiries
[which had] resulted in different approaches across the country.”46 In Silva-Trevino I, the Attorney
General ruled that a crime involving moral turpitude must involve both reprehensible conduct and
a culpable mental state, such as specific intent, deliberateness, or recklessness.47 Although the

40 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 (10th 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 p erhaps 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 t o define with clarity what ‘crimes involving moral turpitude’ means.”); Christina LaBrie, Lack of
Uniform ity in the Deportation of Crim inal 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.”) T he 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 (7th Cir. 2016) (Posner, J., concurring); Harms,
supra at 262.
41 See Cabral v. INS, 15 F.3d 193, 194 ̶ 95 (1st Cir. 1994).
42 See id. at 195; see also Estrada-Rodriguez v. Lynch, 825 F.3d 397, 403 (8th Cir. 2016).
43 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).
44 Matter of Awaijane, 14 I. & N. Dec. 117, 118 ̶ 19 (BIA 1972); see also Avendano v. Holder, 770 F.3d 731, 734 (8th
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’’”).
45 See Zaragoza-Vaquero, 26 I. & N. Dec. at 816; Matter of 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 (7th Cir. 2015) (“Crimes involving fraud have always been considered crimes of moral turp itude.”).
46 Matter of Silva-T revino [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
[immigration judge] 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.”).
47 Silva-Trevino I, 24 I. & N. Dec. at 706 (ruling that indecency with a child in violation of a T exas statute constituted a
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Attorney General’s ruling was later vacated on other grounds,48 the BIA has adopted this
formulation as the standard for determining whether an offense constitutes a crime involving
moral turpitude.49
Aggravated Felony
INA § 101(a)(43) lists crimes considered aggravated felonies for immigration purposes;
Congress has repeatedly expanded the list over the years to cover additional crimes.50 The list
includes many specific offenses, as wel as several broad categories of crimes.51 Moreover, the
“aggravated felony” definition is not limited to offenses that are punishable as felonies (i.e.,
offenses punishable by at least a year and a day imprisonment); certain misdemeanors are also
defined as aggravated felonies for INA purposes.52
INA § 101(a)(43) defines the term aggravated felony by designating certain crimes and categories
of crimes as aggravated felonies.53 Specific crimes include the following:
Table 3. Aggravated Felony Offenses Under INA § 101(a)(43)(F)
Enumerated Offense
Enumerated Offense
Enumerated Offense
Murder
Theft or burglary offenses for which Tax evasion with a revenue loss to
the term of imprisonment is at least
the government exceeding $10,000
one year
Rape
Offenses related to demanding or
Alien smuggling (but not if it is a
receiving ransom
first offense and the alien has shown
that the offense was committed to
help the alien’s spouse, child, or
parent)
Sexual abuse of a minor
Child pornography offenses
Unlawful reentry into the United
States by an alien previously
removed on the basis of a
conviction for an aggravated felony

crime involving moral turpitude).
48 See Matter of Silva-T revino, 26 I. & N. Dec. 550, 553 (A.G. 2015) [hereinafter Silva-Trevino II] (vacating Attorney
General Michael Mukasey’s three-step framework established in Silva-Trevino I to determine whether an alien has
been convicted of a crime involving moral turpitude).
49 Matter of Silva-T revino, 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 (8th Cir. 2012) (observing that the BIA’s “basic definition” of a crime involvin g 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; Silva-Trevino
II, 26 I. & N. Dec. at 550 ̶ 51; Silva-Trevino I, 24 I. & N. Dec. at 688 ̶ 90.
50 8 U.S.C. § 1101(a)(43).
51 Id.
52 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”) (10th 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]”).
53 8 U.S.C. § 1101(a)(43).
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Enumerated Offense
Enumerated Offense
Enumerated Offense
Il icit trafficking in a control ed
Racketeering or gambling offenses
Falsely making, forging,
substance as defined in 21 U.S.C. §
for which a sentence of one year of
counterfeiting, mutilating, or
802 (including a “drug trafficking
imprisonment or more may be
altering a passport or immigration
crime,” defined in 18 U.S.C. 944(c)
imposed
document for which the term of
as any felony punishable under the
imprisonment is at least twelve
Control ed Substances Act)
months (but not if it is a first
offense for the purpose of aiding or
assisting the alien’s spouse, child, or
parent)
Il icit trafficking in firearms,
Offenses involving a prostitution
Failing to appear to serve a
destructive devices, or explosive
business (including offenses
sentence if the underlying offense is
materials
involving the transportation of
punishable by imprisonment for five
persons for the purpose of
years or more
prostitution or unlawful sexual
activity as described in 18 U.S.C.
§§ 2421 to 2423, if committed for
commercial advantage)
Money laundering or engaging in
Offenses related to peonage,
Commercial bribery, counterfeiting,
monetary transactions in property
slavery, involuntary servitude, or
forgery, or trafficking in vehicles
derived from specific unlawful
human trafficking
with altered identification numbers,
activity, if the amount of funds
if the term of imprisonment is at
exceeded $10,000
least one year
Offenses related to firearms or
Gathering or transmitting national
Obstruction of justice, perjury,
explosive materials
defense information, disclosing
subornation of perjury, or bribery
classified information, unlawful y
of a witness for which the term of
identifying undercover agents,
imprisonment is at least one year
sabotage, or treason
A crime of violence (as defined in
Fraud offenses in which the loss to
Failing to appear in court pursuant
18 U.S.C. § 16) for which the term
the victim(s) exceeds $10,000
to a court order to answer or
of imprisonment is at least one year
dispose of a felony charge for which
a sentence of two years’
imprisonment or more may be
imposed
Source: 8 U.S.C. §§ 1101(a)(43)(A), (B), (C) (describing conduct in 18 U.S.C. §§ 921, 841(c)), (D) (describing
conduct in 18 U.S.C. §§ 1956 to 1957), (E) (describing conduct in 18 U.S.C. §§ 842(h), (i), or 844(d) to (i),
922(g)(1) to (g)(5), 924(b), (h); 26 U.S.C. § 5861), (F), (G), (H) (describing conduct in 18 U.S.C. §§ 875 to 877,
1202), (I) (describing offenses in 18 U.S.C. §§ 2251, 2251A, 2252), (J) (describing offenses in 18 U.S.C. §§ 1962,
1084, 1955), (K)(i), (K)(i ), (K)(i i) (describing offenses in 18 U.S.C. §§ 1581 to 1585 or 1588 to 1591), (L)
(describing offenses in 18 U.S.C. §§ 793, 798, 2153, 2381, 2382, 50 U.S.C. § 3121), (M)(i), (M)(i ) (describing 26
U.S.C. § 7201), (N) (describing offenses in 8 U.S.C. §§ 1324(a)(1)(A), (a)(2)), (O) (describing conduct in 8 U.S.C.
§§ 1325(a), 1326), (P) (describing offenses in 18 U.S.C. §§ 1543, 1546(a)), (Q), (R), (S), (T).
Note: When the INA references a “term of imprisonment,” that means the term of imprisonment ordered by
the court, not the time actual y served by the defendant. 8 U.S.C. § 1101(a)(48)(B).
Unless otherwise specified, the offenses described above include violations of state or federal law,
as wel as violations of foreign law if the term of imprisonment was completed within the prior 15
years.54 Additional y, an attempt or conspiracy to commit any of the above offenses qualifies as
an aggravated felony.55

54 Id. § 1101(a)(43).
55 Id. § 1101(a)(43)(U).
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An alien convicted of a crime that fal s within the scope of the aggravated felony definition may
be subject to serious immigration consequences. A conviction for an aggravated felony is a
ground for deportation.56 Additional y, an alien who has committed an aggravated felony and is
removed from the United States wil become inadmissible indefinitely,57 and may be ineligible for
various forms of relief from removal.58
Crimes Affecting “Good Moral Character”
As discussed in detail below, aliens must demonstrate good moral character for a certain period to
qualify for various forms of relief from removal59 and for naturalization.60 The INA specifies
many criminal activities that would preclude an adjudicator from finding that an alien has good
moral character.61 In most cases, the relevant criminal activity precludes a finding of good moral
character only if it is committed within a particular statutory period; in some cases, however,
criminal conduct may permanently bar a finding of good moral character. The table below lists
major criminal bars to finding good moral character.
Table 4. Criminal Bars to Good Moral Character
If Occurring During Statutory Period
Occurring at Any Time
Acts related to prostitution and other commercialized
Conviction for an aggravated felony (for naturalization
vices
applications, the aggravated felony conviction must have
occurred on or after November 29, 1990; but murder
convictions wil bar good moral character if they
occurred at any time)
Crimes involving moral turpitude (other than a purely
Participation in genocide
political offense), unless (1) the crime was committed
before the alien turned 18 and more than five years
before relief application; or (2) the maximum possible
penalty for the crime did not exceed imprisonment for
one year
Violations of any law or regulation relating to a
Commission of acts of torture or extrajudicial kil ings
control ed substance
Two or more offenses for which the aggregate

sentences of confinement were five years or more

56 Id. § 1227(a)(2)(A)(iii).
57 Id. § 1182(a)(9)(A).
58 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 aggravat ed 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 yea rs is
statutorily ineligible for withholding of removal).
59 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).
60 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 app licant’s conduct and acts at any time before that period).
61 Id. § 1101(f).
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If Occurring During Statutory Period
Occurring at Any Time
Engaging in, assisting in, or conspiring to commit a drug

trafficking offense (except for simple possession of 30
grams or less of marijuana)
Deriving income principal y from il egal gambling

activities
Convictions for two or more gambling offenses

Confinement for an aggregate period of 180 days or

more in a corrections facility (regardless of whether
offense was committed within statutory period)
Source: 8 U.S.C. §§ 1101(43)(f)(3) (referencing conduct described in id. §1182(a)(2)(A)(i), (B), (C), (D)), (f)(4),
(f)(5), (f)(7), (f)(8), (f)(9) (referencing conduct described in id. § 1182(a)(3)(E)(i )-(i i)); 8 C.F.R. §§ 316.10(b)(1)(i)-
(i ).
The list above is not exhaustive, so an adjudicator may find that an alien lacks good moral
character for other criminal activities not listed in the statute.62
Relief from Removal and Obtaining Certain
Immigration Benefits
If an alien commits conduct that fal s under a ground for inadmissibility or deportability, it does
not necessarily follow that the alien cannot enter or remain in the United States. The INA
provides several grounds for relief—mandatory and discretionary—from exclusion or removal.
These forms of relief include adjustment of status, waivers of certain grounds of inadmissibility
by immigration authorities, cancel ation of removal, voluntary departure, withholding of removal,
and asylum, among others. However, certain criminal activity may bar an alien from being
eligible for some types of relief. The Attorney General, with authority typical y delegated to
EOIR, adjudicates applications for relief from removal.63 In addition, the DHS Secretary, with
authority delegated to the agency’s adjudicatory component, USCIS, has the authority to
adjudicate applications for immigration benefits, including asylum, refugee admissions, and
adjustment of status.64 Some of these forms of relief and adjustment are discussed below.65
Waiver for Criminal Inadmissibility Grounds
The INA provides that immigration authorities have discretion to waive certain grounds of
inadmissibility in qualifying circumstances. Concerning the criminal grounds for inadmissibility,
the scope of this waiver authority differs depending on whether the alien is seeking admission as
an LPR, or whether the alien is, instead, seeking admission into the country temporarily as a
nonimmigrant.

62 Id. (“T he 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.”).
63 Id. § 1103(g); 8 C.F.R. § 1240.1(a)(1)(ii).
64 6 U.S.C. § 271(b); 8 U.S.C. § 1103(a)(1); 8 C.F.R. §§ 2.1, 103.2.
65 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.
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Aliens Seeking Admission as LPRs
INA § 212(h) grants the Attorney General and the DHS Secretary66 discretion to waive the
application of specified criminal grounds for inadmissibility for aliens seeking admission as an
LPR if certain conditions are met.67 In particular, the Attorney General or DHS Secretary may
waive the inadmissibility grounds relating to
 crimes involving moral turpitude;
 multiple criminal convictions;
 prostitution and other commercialized vices;
 involvement in serious criminal activity for which immunity from prosecution
was granted; or
 drug crimes relating to a single offense of simple possession of 30 grams or less
of marijuana.68
For the Attorney General and the DHS Secretary to exercise their discretion, the alien must
establish that (1) he is inadmissible solely on the basis of prostitution-related crimes, or the
activities for which he is inadmissible took place more than 15 years before applying for
admission; (2) his admission would not be contrary to the national welfare, safety, or security of
the United States; and (3) he has been rehabilitated.69
For an alien who is the spouse, parent, son, or daughter of a U.S. citizen or LPR, the Attorney
General and the DHS Secretary may also waive inadmissibility if the alien establishes that the
denial of admission would result in “extreme hardship” to the qualifying family member.70
Additional y, under the Violence Against Women Act of 1994, as amended (VAWA), the Attorney
General and DHS may waive the criminal inadmissibility grounds if the alien is a battered spouse
or child of a U.S. citizen or LPR.71
Notwithstanding the Attorney General’s and DHS Secretary’s discretion noted above, INA §
212(h) bars waivers for aliens convicted of murder or criminal acts involving torture, or an
attempt or conspiracy to commit those crimes.72 Additional y, a waiver may not be granted to an
alien previously admitted as an LPR if, since the date of admission, the alien has been convicted
of an aggravated felony, or has not lawfully resided continuously in the United States for at least
seven years before removal proceedings have been initiated against the alien.73

66 As discussed in this report, see supra “Administration of Immigration Laws,” 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.
67 8 U.S.C. § 1182(h).
68 Id.
69 Id. § 1182(h)(1)(A).
70 Id. § 1182(h)(1)(B).
71 Id. § 1182(h)(1)(C); VAWA, Pub. L. No. 103-322, 108 Stat. 1786 (1994). 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).
72 8 U.S.C. § 1182(h). T his 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.
73 Id. Initially, the BIA interpreted this bar to apply to all LPRs who have been convicted of aggravated felonies (or
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Aliens Seeking Admission as Nonimmigrants
For an alien seeking admission as a nonimmigrant (e.g., students, athletes, temporary workers),74
DHS may exercise its discretion to authorize the nonimmigrant visa if the Secretary of State or
consular officer recommends that the alien be temporarily admitted despite a criminal ground for
inadmissibility.75 This waiver, however, is not available if the alien is inadmissible because (1) he
seeks to enter the United States to engage in espionage or sabotage; (2) he seeks to enter the
United States to engage in any other unlawful activity; (3) he seeks to enter the United States to
engage in activity with the purpose of opposing, controlling, or overthrowing the U.S.
government through force or other unlawful means; (4) the Secretary of State has reasonable
grounds to believe that the alien’s entry “would have potential y serious adverse foreign policy
consequences for the United States”; or (5) the alien has participated in Nazi persecution or
genocide.76
Cancellation of Removal
INA § 240A authorizes cancel ation of removal, another form of discretionary relief available to
certain LPRs and nonimmigrants in removal proceedings.77 For non-LPRs, this relief is available
to up to 4,000 aliens each year.78 Cancel ation of removal al ows the Attorney General to cancel
the removal of qualifying LPRs and nonpermanent residents (including both those lawfully
admitted as nonimmigrants and aliens who do not possess a lawful immigration status) who are

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). T he 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 (10th Cir. 2015); Husic v. Holder, 776 F.3d 59, 66 (2d Cir.
2015); Stanovsek v. Holder, 768 F.3d 515, 517 (6th Cir. 2014); Negrete-Ramirez v. Holder, 741 F.3d 1047, 1053 ̶ 54
(9th Cir. 2014); Papazoglou v. Holder, 725 F.3d 790, 794 (7th Cir. 2013); Hanif v. Att’y Gen. of the United States, 694
F.3d 479, 487 (3d Cir. 2012); Bracamont es v. Holder, 675 F.3d 380, 389 (4th Cir. 2012); Lanier v. United States Att ’y
Gen., 631 F.3d 1363, 1366 ̶ 67 (11th Cir. 2011); Hing Sum v. Holder, 602 F.3d 1092, 1101 (9th Cir. 2010); Martinez v.
Mukasey, 519 F.3d 532, 544 (5th Cir. 2008). But see Roberts v. Holder, 745 F.3d 928, 932 ̶ 33 (8th 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).
74 See 8 U.S.C. § 1101(a)(15) (listing classes of nonimmigrants).
75 Id. § 1182(d)(3)(A). Some courts have held that immigration judges also have the authority to grant nonimmigrant
visa inadmissibility waivers to aliens seeking admission into the United States who are already in rem oval proceedings.
See Atunnise v. Mukasey, 523 F.3d 830, 838 ̶ 39 (7th Cir. 2008). However, courts have disagreed as to whether the
immigration judge’s authority extends to granting inadmissibility waivers for alien victims of certain criminal activity
who are applying for nonimmigrant “ U” visas, where the relevant statute concerning U visa waivers specifies that DHS
has the authority to grant such a waiver. See Jimenez-Rodriguez v. Garland, 996 F.3d 190 (4th Cir. 2021); Man v. Barr,
940 F.3d 1354, 1357 (9th Cir. 2019); Meridor v. U.S. Att ’y Gen., 891 F.3d 1302, 1307 (11th Cir. 2018); Sunday v.
Att’y Gen., 832 F.3d 211, 214 ̶ 16 (3d Cir. 2016); L.D.G. v. Holder, 744 F.3d 1022, 1030 (7th Cir. 2014).
76 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).
77 Id. § 1229b(a), (b).
78 Id. § 1229b(e)(1).
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inadmissible or deportable.79 But some criminal activity may bar the Attorney General from
exercising that discretion.
Eligibility for cancel ation of removal differs for LPRs and non-LPRs. For LPRs, the Attorney
General may exercise discretion to cancel removal if the alien
1. has been an LPR for at least five years;
2. has resided in the United States continuously for seven years after having been
admitted to the United States in any status; and
3. has not been convicted of an aggravated felony.80
For non-LPRs, the Attorney General may exercise discretion to cancel the removal of an alien
who is inadmissible or deportable and adjust the alien’s status to LPR if the alien
1. has been physical y present in the United States for a continuous period of at
least 10 years immediately preceding the application for relief;
2. has been a person of good moral character during that 10-year period;
3. has not been convicted of an offense described in INA § 212(a)(2) (criminal
grounds of inadmissibility), § 237(a)(2) (criminal grounds of deportability), or §
237(a)(3) (failure to register and falsification of documents); and
4. establishes that his removal would result in “exceptional and extremely unusual
hardship” to a spouse, parent, or child who is a U.S. citizen or LPR.81
Thus, LPRs who have been convicted of an aggravated felony cannot receive cancel ation of
removal.82 But this statutory bar does not preclude the Attorney General from canceling the
removal of LPRs who have been convicted of other types of offenses.
Even so, an LPR’s commission of a crime that is not an aggravated felony could stil preclude
that individual from meeting other requirements for cancel ation of removal. Under the “stop-
time rule,” any period of continuous residence in the United States for purposes of cancel ation of
removal ends when the alien commits a criminal offense “referred to” in INA § 212(a)(2)’s
grounds of inadmissibility that “renders” the alien either inadmissible or deportable.83 The

79 Id. § 1229b.
80 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.
81 8 U.S.C. § 1229b(b).
82 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 (9th Cir. 2007) (“A conviction for an aggravated felony precludes eligibility even absent a charge and
finding of removability on that ground.”).
83 8 U.S.C. § 1229b(d)(1). In the alternative, the period of continuous residence is deemed to end when the alien is
served a notice to appear (NT A), the charging document that initiates formal removal proceedings. Id. T he statute
provides that either the service of the NT A or the commission of the disqualifying crime cuts off continuous residence,
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Supreme Court has held that commission of a disqualifying criminal offense listed in § 212(a)(2)
cuts off the seven-year continuous residence period regardless of whether the LPR was actual y
charged as being inadmissible or deportable based on that offense.84
While commission of a criminal offense may bar an LPR from cancel ation of removal in certain
circumstances (e.g., an aggravated felony conviction), non-LPRs are ineligible for cancel ation of
removal if they have been convicted of any offense described within the criminal grounds for
inadmissibility or deportability.85 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), and some
federal courts have adopted this interpretation.86 Moreover, a non-LPR’s commission of a
criminal offense enumerated within INA § 212(a)(2) may also cut off the required ten-year period
of continuous physical presence under the stop-time rule.87
Additional y, an alien who is not an LPR cannot receive cancel ation of removal if he or she has
not been a person of good moral character for at least 10 years immediately preceding the date of
the application.88 As listed above, the INA provides many additional criminal activities—aside
from convictions for crimes listed in INA §§ 212(a)(2) and 237(a)(2)—that would preclude a
finding of good moral character.89

“whichever is earliest.” Id.
84 Barton v Barr, 140 S. Ct. 1442, 1449 ̶ 51(2020). T he Court rejected the argument that an LPR cannot be rendered
“inadmissible” based on the commission of an offense enumerated within INA § 212(a)(2) because an LPR, who has
already been admitted, is not seeking admission to the United States. Id. at 1451. T he Court determined that the
requirement that the INA § 212(a)(2) offense “renders the alien inadmissible” does not mean the alien must be actually
adjudicated as inadmissible and denied admission for the stop-time rule to apply. Id. at 1451 ̶ 52. Instead, the Court
reasoned, the statute uses the term “ inadmissible” as a “ status” resulting from the commission of a crime that triggers
immigration consequences regardless of whether the alien has already been lawfully admitted or subject to removal
based on the offense. Id. For additional discussion of the Supreme Court’s decision in Barton v. Barr, see CRS Legal
Sidebar LSB10464, Suprem e Court Rules That Lawful Perm anent Residents May Be Treated as “Inadm issible” Under
Cancellation of Rem oval Statute, by Hillel R. Smith.
85 8 U.S.C. § 1229b(b).
86 Matter of Almanza-Arenas, 24 I. & N. Dec. 771, 776 (BIA 2009); see also Hernandez v. Holder, 783 F.3d 189, 194
(4th Cir. 2015) (“ Accordingly, the most natural reading of § 1229b(b)(1)(C) is that a conviction for any offense listed
in § 1182(a)(2), § 1227(a)(2), or § 1227(a)(3) renders an alien ineligible for cancellation of removal, regardless of the
alien’s status as an admitted or unadmitted alien.”); Coyomani-Cielo v. Holder, 758 F.3d 908, 915 (7th Cir. 2014)
(upholding BIA’s interpretation); Gonzalez-Gonzalez v. Ashcroft, 390 F.3d 649, 652 (9th 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 (9th Cir. 2017) (same); Barma v. Holder, 640 F.3d 749, 752 ̶ 53 (7th Cir. 2011) (same).
87 8 U.S.C. § 1229b(d)(1). T he stop-time rule, however, does not apply to certain applicants for cancellation of removal
who have been battered or subjected to extreme cruelty by a qualifying relative and meet other requirements. Id.; see
also id. § 1229b(b)(2)(A) (special rule cancellation for battered spouse or child).
88 Id. § 1229b(b). T he 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 (5th Cir. 2015) (deferring to the BIA’s interpretation of the good moral character
requirement); Duron-Ortiz v. Holder, 698 F.3d 523, 527 ̶ 28 (7th Cir. 2012) (same).
89 8 U.S.C. § 1101(f). A non-LPR alien applying for cancellation of removal as a battered spouse or child has to show
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Voluntary Departure
INA § 240B authorizes relevant immigration authorities to al ow an otherwise removable alien to
voluntarily depart the United States at his own expense within 60 to 120 days of being granted
that permission, instead of being formal y removed by the government.90 Voluntary departure is
sometimes viewed as a quid pro quo: The government benefits by avoiding the costs of formal
removal and, in exchange, the alien may depart to any country of his choosing at any time within
the statutory period, while also avoiding bars to reentry that attach to a formal order of removal.91
There are two forms of voluntary departure. First, an alien may be granted voluntary departure
instead of being subject to formal removal proceedings or before those proceedings are
completed.92 The INA bars voluntary departure in this circumstance for an alien deportable on
account of being convicted of an aggravated felony or under the terror-related grounds of INA §
237(a)(4)(B).93
Alternatively, an alien may be granted voluntary departure at the conclusion of removal
proceedings.94 To qualify for this form of voluntary departure, the alien must, among other things,
(1) have been a person of good moral character for at least five years immediately preceding the
application for voluntary departure and (2) not have committed any aggravated felony.95
Withholding of Removal
INA § 241(b)(3) bars DHS from removing an alien to a country if the alien’s life or freedom
would be threatened because of the alien’s race, religion, nationality, membership in a particular
social group, or political opinion (i.e., a protected ground).96 Unlike the forms of relief discussed
above, withholding of removal is mandatory if an immigration judge97 determines that the alien is
eligible. To obtain this relief, the alien must establish a “clear probability that his life or freedom

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” and that a waiver is otherwise warranted. Id. § 1229b(b)(2)(C).
90 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 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.
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 LEGIS. 1, 1-2 (2007).
92 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).
95 Id. See also Griffiths v. INS, 243 F.3d 45, 56 (1st 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” whether the
alien accrued five years of good moral character while his removal proceedings were pending).
96 8 U.S.C. § 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).
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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 (8th Cir. 2016); Hernandez-Lima v. Lynch, 836 F.3d 109, 113 (1st Cir. 2016); Gonzalez v. U.S. Attorney Gen.,
820 F.3d 399, 403 (11th Cir. 2016); Htun v. Lynch, 818 F.3d 1111, 1121 (10th Cir. 2016); Zheng v. Lynch, 819 F.3d
287, 294 (6th 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 (4th Cir. 2015).
99 8 U.S.C. §§ 1227(a)(4)(D), 1231(b)(3)(B).
100 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). T 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. T 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 -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
(9th Cir. 2011); Gao v. Holder, 595 F.3d 549, 555 (4t h Cir. 2010); N-A-M v. Holder, 587 F.3d 1052, 1056 (10th Cir.
2009); Ali v. Achim, 468 F.3d 462, 470 (7th Cir. 2006). 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.
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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 T orture and Other Cruel, Inhuman or Degrading T reatment or
Punishment).
107 8 C.F.R. §§ 1208.16(c), 1208.17(a).
108 Id. §§ 1208.16(c)(2), 1208.18(a)(1).
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 (9th Cir. 2004) (“[N]either withholding
nor deferral of removal prevents the government from removing an alien to a third country other than t 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).
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. § 208.2; Regina Germain, Seeking Refuge: The U.S. Asylum Process, 35-OCT 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 Report RL31269, Refugee
Adm issions and Resettlem ent Policy, by Andorra Bruno.
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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).
117 Id. § 1158(b)(1)(A); Legal v. Lynch, 838 F.3d 51, 54 (1st Cir. 2016).
118 See T ang v. Lynch, 840 F.3d 176, 183 (4th Cir. 2016); Gaye v. Lynch, 788 F.3d 519, 533 (6th Cir. 2015); Rodas -
Orellana v. Holder, 780 F.3d 982, 986 ̶ 87 (10th Cir. 2015); Vanegas-Ramirez v. Holder, 768 F.3d 226, 237 (2d Cir.
2014).
119 8 U.S.C. § 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 “particularly serious
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, 1105 (9th Cir. 2011); Gao v. Holder, 595 F.3d 549, 556 ̶ 57 (4th Cir. 2010); Nethagani v. Mukasey, 532
F.3d 150, 156 (2d Cir. 2008); Ali v. Achim, 468 F.3d 462, 469 (7th 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. § 1157(c)(1).
126 Id. § 1101(a)(42).
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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. § 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 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), (i); 8 U.S.C. § 1255(a), (i).
133 8 U.S.C. § 1255(a), (i); see also id. § 1182(a) (grounds of inadmissibility).
134 Id. § 1182(h); see also, Palma-Martinez v. Lynch, 785 F.3d 1147, 1149 (7th Cir. 2015) (“Under INA § 212(h) the
Attorney General may waive the ground of inadmissibility applicable to Palma–Martinez (the crime 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.”); Roberts v. Holder, 745 F.3d 928, 931 (8th Cir. 2014)
(“As the BIA noted, Roberts must receive a § 1182(h) waiver of his aggravated felony conviction before he may 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 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).
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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. § 1254a(a), (b). For more information on TPS, including the designated countries from which aliens may
receive T PS, see CRS Report RS20844, Tem porary Protected Status and Deferred Enforced Departure, by Jill H.
Wilson.
136 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 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).
138 Id. § 1254a(c)(2)(A)(iii). Furt her, a T PS relief applicant cannot receive a waiver of inadmissibility 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 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
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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
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 convict 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 (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 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 att empted rape conviction even though rape was not
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).
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.”).
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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-T orres v. Ashcroft, 383 F.3d 968, 973 (9th Cir. 2004). T he federal circuit courts are
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 (1st Cir. 1997) (“T here is no constitutional right to appointed counsel in a deportation proceeding. But
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”).
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 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 (5th Cir. 2015) (“ The decision to plead
guilty is a critical stage of criminal proceedings.”).
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).
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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 § 101(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. T he sentence is the judgment.”); Planes v. Holder, 652 F.3d 991, 995 (9th Cir. 2011)
(“Under the first definition, a ‘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 (10th Cir. 2007). T he INA’s definition of “conviction”
controls regardless of how a state designates a conviction. See, e.g., Gonzalez v. O’Connell, 355 F.3d 1010, 1018 (7th
Cir. 2004).
156 See, e.g., Estrada v. Holder, 611 F.3d 318, 321 (7th Cir. 2010); Alim v. Gonzales, 446 F.3d 1239, 1248 (11th Cir.
2006).
157 For example, some state laws allow a judge to expunge certain convictions for rehabilitative purposes. See e.g.,
ARIZ. 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.
§ 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 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).
158 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 (9th 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 state convictions) (overruling Lujan-Armendariz v. INS, 222 F.3d 728 (9th 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” under the INA); Pickering v. Gonzales, 465 F.3d 263, 266 (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 (6th 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 (10th 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 DICTIONARY; Plea, BLACK’S LAW DICTIONARY; Julian A. Cook, III, Crum bs from
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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 (4th 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 mo 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 (9th 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, Im m igration
Consequences of Crim inal Pleas & Convictions, 35-OCT COLO. LAW. 55, 56 (2006).
163 See De Vega v. Gonzalez, 503 F.3d 45, 49 (1st Cir. 2007).
164 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 T itle 18 (relating to laundering of monetary instruments) or section 1957 of that title (relating to
engaging in monetary transactions in property derived from specific unlawful activity) if the amount of the funds
exceeded $10,000),” with 8 U.S.C. § 1101(a)(43)(M)(i) (defining an “aggravated felony” as an offense 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); T aylor v. United States, 495 U.S. 575, 599 ̶ 600 (1990).
167 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)).
169 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”).
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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).
175 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 (8th Cir. 2013) (whether conviction is
a “ single offense involving possession for one’s own use of 30 gram 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 $10,000”); Bianco v. Holder, 624 F.3d 265, 270 ̶ 73 (5th Cir. 2010) (whether the victim of a crime of
violence had a qualifying “domestic” relationship to the offender for purposes of the “crime of domestic violence”
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).
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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; Matter of J-G-D-F-, 27 I. & N. Dec. 82, 83 ̶ 86 (BIA 2017);
Silva-T revino III, 26 I. & N. Dec. 826, 831 ̶ 33 (BIA2016); Matter of Chairez-Castrejon, 26 I. & N. Dec. 819, 820 (BIA
2016). T 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 fa 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).
178 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 revino v. Holder, 742 F.3d 197 (5th Cir. 2014); Olivas-Motta v. Holder, 746 F.3d 907 (9th Cir. 2013);
Prudencio v. Holder, 669 F.3d 472 (4th Cir. 2012); Fajardo v. U.S. Att’y Gen., 659 F.3d 1303 (11th Cir. 2011); Jean -
Louis v. Att’y Gen. of the U.S., 582 F.3d 462 (3d Cir. 2009). T wo circuits, however, deferred to the Attorney General’s
instructions in Silva-Trevino I. See Bobadilla v. Holder, 679 F.3d 1052 (8th Cir. 2012); Mata-Guerrero v. Holder, 627
F.3d 256 (7th Cir. 2010). Given “ the variance between Attorney General Mukasey’s binding opinion and the contrary
controlling precedent in some circuits,” as well 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 determin e whether an alien has been convicted of a crime involving moral
turpitude. Silva-Trevino II, 26 I. & N. Dec. 550, 553 ̶ 54 (A.G. 2015).
181 Silva-Trevino III, 26 I. & N. Dec. 826, 830 (BIA 2016).
182 Id. at 832 ̶ 33.
183 Id. at 833
184 Id.
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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).
192 See United States v. Medina-T orres, 703 F.3d 770, 774 (5th Cir. 2012); United States v. Venzor-Granillo, 668 F.3d
1224, 1232 (10th Cir. 2012); Ramirez-Villalpando v. Holder, 645 F.3d 1035, 1039 (9th Cir. 2011); Jaggernauth v. U.S.
Att’y Gen., 432 F.3d 1346, 1353 (11th Cir. 2005); Soliman v. Gonzales, 419 F.3d 276, 283 (4th Cir. 2005); Abimbola
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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

v. Ashcroft, 378 F.3d 173, 176 (2d Cir. 2004); Hernandez-Mancilla v. INS, 246 F.3d 1002, 1009 (7th Cir. 2001).
193 8 U.S.C. § 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). T he Second, T 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 (6th Cir. 2016); Velasco-Giron v. Holder, 773 F.3d 774, 776 ̶ 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). T he Ninth Circuit has held, however, that for statutory rape crimes, “sexual abuse of a minor” requires 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 (9th Cir.
2009).
195 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 intercourse involving victims over the age of 16 that is abusive 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.
198 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 (7th Cir. 2001) (same), with T apia Garcia v. INS, 237 F.3d 1216, 1222 ̶ 23 (10th Cir.
2001) (gross negligence), and United States v. Ceron-Sanchez, 222 F.3d 1169, 1172 ̶ 73 (9th Cir. 2000) (recklessness
causing physical injury), and United States. v. Chapa-Garza, 243 F.3d 921, 926 ̶ 27 (5th Cir. 2001) (requiring
intentional use of force).
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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. § 16(b).
201 Sessions v. Dimaya, 138 S. Ct. 1204, 1216 (2018). In Dimaya, the Supreme Court reviewed the Ninth Circuit’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 v. Lynch,
803 F.3d 1110, 1111 (9th Cir. 2015) (citing Johnson v. United States, 576 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 aya, the Ninth Circuit ruled that the INA’s definition of crime of violence—bearing language similar to the
ACCA’s residual clause—likewise is unconstitutionally vague. Dimaya, 803 F.3d at 1111, 1115. The T hird, Sixth,
Seventh, and T enth Circuits, applying Johnson, had reached the same conclusion. Golicov 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 (5t h Cir.
2016). For more information on the ACCA and Johnson, see CRS Report R41449, Arm ed Career Crim inal Act (18
U.S.C. 924(e)): An Overview, by Charles Doyle.
202 Dimaya, 138 S. Ct. at 1215 ̶ 16. Subsequently, in United States v. Davis, the Supreme Court held that the residual
clause of the “crime of violence” definition found in 18 U.S.C. § 924(c) is unconstitutionally vague. 139 S. Ct. 2319,
2336 (2019). Federal laws impose enhanced prison sentences on criminal defendants who use a firearm during the
commission of a “crime of violence,” and employs a definition of a “crime of violence” that is virtually identical to the
one found in 18 U.S.C. § 16. See 18 U.S.C. § 924(c). Citing Johnson v. United States and Sessions v. Dim aya, the
Court ruled that the second prong of 18 U.S.C. § 924(c)’s definition, which covers a felony “that by its nature, involves
a substantial risk that physical force against the person or property of another may be used,” provides no r eliable way to
determine whether a criminal offense ordinarily carries a substantial risk of force. Davis, 138 S. Ct. at 2326 ̶ 27. T he
Court also declined to adopt a “case-specific” approach that considers a criminal defendant’s actual conduct when
assessing whether an offense carries a “ substantial risk” of physical force. Id. at 2336. T he reasoned that 18 U.S.C. §
924(c)’s plain language, context, and legislative history indicated that Congress had intended the courts to apply a
“categorical approach” that looked only to the ordinary nature of a generic crime, rather than the underlying facts, when
deciding whether an offense carried a substantial risk of physical force under 18 U.S.C. § 924(c). Id. at 2327 ̶ 32. For
more discussion about the crime of violence definition and jurisprudence concerning the interpretation of that
definition, see CRS Report R45220, The Federal “Crim e of Violence” Definition: Overview and Judicial
Developm ents, by Hillel R. Smith; CRS Legal Sidebar LSB10128, High Court Strikes Down Provision of Crim e of
Violence Definition as Unconstitutionally Vague, by Hillel R. Smith.
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criminal grounds for inadmissibility and deportability.203 Congress also could add or subtract
crimes from those listed as aggravated felonies and clarify what crimes involve moral
turpitude.204 Additional y, Congress could modify the number of crimes that would render an
alien statutorily ineligible for relief from removal or those that preclude a finding of good moral
character.205 Further, Congress could clarify certain terminology in the INA that some courts have
deemed ambiguous, like crime of moral turpitude and crime of violence.206 In short, given the
immigration consequences that may follow from criminal activity, Congress may consider various
legislative options that would modify the standards employed by the courts and relevant
immigration authorities to determine whether an alien may be excluded or deported from the
United States due to criminal conduct.

Author Information

Hillel R. Smith

Legislative Attorney

203 See e.g., Criminal Alien Removal Clarification Act , H.R. 2989, 116th Cong. § 2 (2019) (would have made
deportable an alien who, after admission to the United States, has been convicted of a felony or two misdemeanors);
Protecting Our Communities from Gang Violence Act of 2019, H.R. 1106, 116th Cong. § 3 (2019) (would have made
aliens associated with criminal gangs inadmissible or deportable); Equal Protection of Unaccompanied Minors Act,
H.R. 574, 116th Cong. § 1106 (2019) (would have made criminal gang activity grounds for inadmissibility and
deportability); T aking Action Against Drunk Drivers Act, S. 51, 115th Cong. § 3 (2017) (would have made aliens
convicted of three or more offenses involving driving under the influence or driving while intoxicated inadmissible or
deportable).
204 See e.g., T aking Action Against Drunk Drivers Act , S. 51, 115th Cong. § 3 (2017) (would have amended definition
of aggravated felony to include a third conviction for driving under the influence or driving while intoxicated).
205 See e.g., No Asylum for Criminals Act of 2021, H.R. 398, 117th Cong. § 2 (2021) (providing that an alien who has a
final conviction for any crime is barred from asylum); Protecting Our Communities from Gang Violence Act of 2019,
H.R. 1106, 116th Cong. §§ 3, 4 (2019) (would have made an alien who had been associated with a criminal gang or
who had committed certain enumerated criminal offenses barred from asylum, T emporary Protected Status, and certain
other immigration benefits, or precluded from showing good moral character); Equal Protection of Unaccompanied
Minors Act , H.R. 574, 116th Cong. § 1106 (2019) (would have made an alien associated with a criminal gang barred
from asylum, T emporary Protected Status, and certain other immigration benefits).
206 See e.g., Keep Our Communities Safe Act of 2019, S. 2869, 116th Cong. § 5 (2019) (would have clarified that a
crime of violence under 18 U.S.C. § 16(b) is a felony offense that “based on the facts of the o ffense” involve a
substantial risk that physical force against the person or property of another “may have been used” in the course of
committing the offense); Equal Protection of Unaccompanied Minors Act, H.R. 574, 116th Cong. § 1104 (2019)
(would have amended the aggravated felony definition to include, among other things, a “ violent crime for which the
term of imprisonment is at least 1 year,” which would have included an offense containing an element involving the use
of physical force or an offense “in which the record of conviction establishes that the offender used physical force
against the person or property of another in the course of committing the offense”); Community Safet y and Security
Act of 2018, H.R. 6691, 115th Cong. § 2 (2018) (would have amended crime of violence definition under 18 U.S.C. §
16 to include certain enumerated criminal offenses).
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