Admission means allowing a person outside of the US enter to the US or allowing a person within the US get a Green Card.

Inadmissible, means someone who does not receive that permission.

Grounds of inadmissibility means reasons through which one person can become inadmissible.

Different eligible categories may have various grounds of inadmissibility. For example a person whose asylum request has been granted may not be inadmissible because of illegal entry to the US, but a person who marries a US citizen and wants to receive a Green Card, but has entered the US illegally may have to apply for “waiver of inadmissibility” to be able to receive a Green Card.

Inadmissibility is a complex and wide issue. And it does not apply for US citizens, whether they are born in the US or have received their citizenship through immigration lawful process.

Inadmissibility sometimes goes hand in hand with “unlawful presence”. Someone has entered illegally and stayed in the US without permission, or someone has entered legally and overstayed his visa or applied for asylum and his asylum has not been approved. In all the above cases someone is called to have “unlawful presence”.

When an asylum seeker receives asylum approval, the illegal entry and unlawful presence are forgiven, but if he commits a crime, for example “drug trafficking” or an “aggravated felony”, he becomes inadmissible. A type of inadmissibility that may not easily be forgiven or waived.

In a recent decision of October 8 th , 2020, the BIA (board of Immigration Appeal) limited the use of “drug trafficking” to the first time of adjudication (28 I&N Dec. 107, Matter of Bernardita Maria VOSS, Respondent, Interim Decision #3997, U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals,October 8, 2020)

The Court published its opinion stating that “If a criminal conviction was charged as a ground of removability or was known to the Immigration Judge at the time cancellation of removal was granted under section 240A(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a) (2018), that conviction cannot serve as the sole factual predicate for a charge of removability in subsequent removal proceedings.

The BIA disagreed with the IJ (immigration judge) when “he held that the doctrine of res judicata does not preclude the DHS from charging the respondent with removability under section 237(a)(2)(B)(i) based on the same conviction that provided the basis for the previous finding of inadmissibility under section 212(a)(2)(A)(i)(II).3…” See Matter of G-A-, 7 I&N Dec. at 275; cf. Matter of Balderas, 20 I&N Dec. at 393 (basing a finding of deportability on an additional conviction in subsequent proceedings).

“Applying this holding”, the BIA concluded that “the respondent's 2013 conviction for an offense relating to a controlled substance, for which she was granted cancellation of removal in 2014, cannot serve as the sole basis for the current charge of removability.”

An asylee can apply for a waiver in case of fraud or misrepresentation. Waiver maybe granted if humanitarian reasons, family unities, public interests or national interest has been established. Also undue hardship to family members can help here.

If the crime becomes more serious—such as aggravated felony, then the chance for granting a waiver becomes substantially less.

One of the grounds of inadmissibility that has recently (Feb 20, 2020 and then Sept 24,2020 ) been implemented and exercised by President Trump is “Public Charge”.

Public Charge inadmissibility means if someone within the US (and a federal judge has by far blocked this for applicant outside of the US and President Trump has not appealed it yet), is determined based on “age, health status, financial status, education” to likely become a “welfare user”, then government would deny its entry to the US.

Some of the grounds of inadmissibility are listed in section 212 of the INA. When a non-citizen applies for a visa to travel to the U.S., the consular officer makes an independent determination of considers whether any of these grounds apply, Also a CBP (Customs and Borer Protection officer makes another evaluation. Immigration officers make an independent determination of a non-citizen's admissibility when he or she arrives at a port of entry.

Grounds of inadmissibility apply only to non-citizens seeking admission to the United States. It also does apply to Green Card Holders. Green Card Holders or Visa holders are considered applicants for admission when they arrive at a port of entry to the United States.

INA § 245, nonimmigrants applying to adjust to permanent resident status are also considered to be seeking admission. They are then subject to the grounds of inadmissibility.

INA § 237(a)(1), persons lawfully admitted to the U.S. as nonimmigrants could become inadmissible for permanent residence if they have violated US laws, while in the U.S. and could be subject to removal if they apply to adjust status.

A very important point to remember is since the grounds of inadmissibility and removal are different from each other, the same individuals might not be removable if they remain nonimmigrants.

Laws of immigration inadmissibility are complex and not knowing what to do may have serious negative consequences. The waivers for the grounds of inadmissibility are even more complicated and “case specific”. We highly recommend that you contact an immigration lawyer to consult about your case.

This is a legal blog. It is not intended to be used as legal advice. This blog does not create Attorney-Client Relationship.

For further information please contact the law offices of attorney Ramona Kennedy. Ramona Kennedy (Attorney) received her Jurisprudence Doctorate in America and is a licensed attorney in California, licensed by California Supreme Court (USA).Ramona Kennedy is a lifetime, honorary member of Bar Association of United States Supreme Court, and a member of American Immigration Lawyers Association (AILA) and Orange County Trial Lawyers Association (OCTLA).Ramona Kennedy is fluent in English and Farsi (Persian).

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