Immigration 101: Non-Criminal Deportability Grounds
If you’re facing removal, you will have to show the government that you don’t meet any of the grounds for deportability. Due to some quirky legal rules, the specific grounds for deportability are different from the grounds for inadmissibility, but broadly speaking, they are both divided into criminal and non-criminal categories. In this article, we’ll cover the most common grounds for deportability. As always, remember that there is no substitute for the advice of an experienced and knowledgeable attorney, who can help you navigate the complex and often confusing world of immigration law.
Inadmissible at Time of Entry
If you were not actually admissible at the time you were admitted to the US or granted adjustment of status, you may be deportable. This can be confusing, since it seems to follow logically that you can’t be “admitted” to the US unless you’re “admissible.” Inadmissibility at time of entry usually comes into play when the government is unaware of something that renders you inadmissible, and mistakenly admits you anyway.
To illustrate this concept, imagine that you filled out a visa application without mentioning that you had been convicted of possession of a small amount of marijuana. If you had disclosed your conviction, you would have been inadmissible as an alien convicted of a crime involving a controlled substance. The government approves your visa application and admits you as a lawful permanent resident. Even though your criminal conviction would not be enough to satisfy the deportability ground for aliens convicted of a crime relating to controlled substances possession (because the deportability ground, unlike the inadmissibility ground, has an exception for crimes involving less than 30 grams of Marijuana), you could still be found deportable because your conviction meant that you were inadmissible at the time you entered the US.
If your inadmissibility at the time of admission arose from fraud or misrepresentation, you may be able to obtain a waiver of this deportability provision. To be eligible for a waiver, you must be the spouse, parent, or child of a US citizen or lawful permanent resident, and you must have been otherwise admissible to the US at the time of your admission. You could also be eligible if you are a VAWA self-petitioner.
Present in Violation of the Law
If you are currently present in the US in violation of the law, you are deportable. Being “present in violation of the law” covers several different situations, and arises most often when someone has been admitted to the US on a temporary visa and remains in the US after the period of authorized stay has ended.
Violated Nonimmigrant Status or Conditions of Entry
If you were admitted to the US as a nonimmigrant (which usually means you have a visa that allows you to enter the US as a visitor, worker, or student) and you don’t maintain that status during your stay, you could be deportable. This applies if, for example, you entered the US on a six-month tourist visa but you stayed in the US after the six-month term expired, or if you accepted unauthorized employment. This ground also applies if you entered on a student visa and then dropped out of school.
Termination of Conditional Permanent Residence
If you were admitted to the US as a permanent resident on a conditional basis, and the government subsequently terminated your conditional status, you may be deportable. The most common reason for conditional permanent resident status is recent marriage to a US citizen or permanent resident. There is a two-year period during which your status is “conditional” and can be revoked by the government if, for example, USCIS determines that your marriage was fraudulent, or if you or your spouse fail to file the paperwork required for you to become a full-fledged permanent resident before the end of the two-year conditional period.
This deportability ground may be waived if you can establish that you entered into the marriage in good faith and that your removal would cause you extreme hardship.
Falsely Claiming US Citizenship
If you’ve falsely claimed that you are a US citizen in order to obtain any kind of immigration benefit, you may be deportable. False claims of citizenship can occur in a variety of situations, like telling a border guard that you’re a US citizen in order to gain admission to the US, or falsely claiming citizenship when filling out a federal student loan application. Even if you accidentally or unknowingly claim citizenship – for example, if you signed an application for a driver’s license or federally-backed mortgage application without reading the fine print that says that you’re certifying that you are a US citizen – you will be deemed to have made a false claim.
This is a very strict provision, and no waivers are available if you are found deportable under it. The consequences don’t stop there: If you are removed under this ground, you’ll also be permanently inadmissible, and you’ll never be eligible to return to the US.
There are only two narrow exceptions to this ground of deportability. First, because the provision was added by a law that took effect on September 30, 1996, it doesn’t cover false citizenship claims that occurred before that date. This means that if your false claim occurred before that date, you can’t be found deportable under that ground.
The second exception covers false claims by people who actually believed that they were US citizens. If you permanently lived in the US before the age of 16, you have a US citizen parent, and you genuinely believed that you were a US citizen at the time you made the false citizenship claim, the provision won’t apply.
If you were admitted to the US on the basis of a marriage to a US citizen of lawful permanent resident, and it turns out that your marriage was not genuine, you may be deportable. In this context, “not genuine” means that you entered into the marriage primarily for the purposes of gaining legal status in the US. The government is required to consider every marriage genuine, unless it has evidence that strongly suggests otherwise. If the government finds evidence that your marriage is fraudulent and charges you with removability under this provision, you’ll have an opportunity to present evidence showing that your marriage really is genuine. You can establish this by showing that you and your spouse actually lived together as a married couple. For example, you could submit evidence that you shared property and finances, had children together, took vacations together, met each other’s family, etc.
There are two situations in which the government must presume that your marriage is fraudulent, and you will have to prove otherwise: First, if you and your spouse were married for less than two years before you were admitted to the US (including an “admission” that was triggered by a petition to adjust status), and your marriage ended less than two years after that admission; and second, if you married a US citizen or lawful permanent resident after you were placed in removal proceedings. Proving that your marriage is not fraudulent is much more difficult in the second situation, because you will need to present “clear and convincing” evidence that the marriage was genuine.
If you are the subject of a final order (which is not necessarily a criminal conviction) for violating a specific provision of US immigration law that prohibits various types of document fraud in an immigration case, you may be deportable. This provision can be waived if you weren’t fined for the violation, and the document fraud was part of an attempt to help your spouse or child to obtain an immigration benefit.
Engaged in Alien Smuggling
If you helped or encouraged someone to enter the US unlawfully, either before you were admitted to the US or within five years of your admission, you may be deportable. You can be found deportable under this provision regardless of your relationship with the person or people you helped, and even if you have never been charged with or convicted of any human smuggling crime.
There is only one exception to this ground of deportability, and it applies only in very narrow circumstances. To qualify, you must have been present in the US since 1988, and you must be able to show that:
- You are a lawful permanent resident
- The person you encouraged or helped to smuggle into the US was your spouse, parent, or child; and
- Granting a waiver would serve a humanitarian purpose, help assure family unity, or be in the public interest.
National Security and Terrorism
It shouldn’t come as a surprise that you may be found deportable if you engage or have engaged in espionage or sabotage, or if you attempt, have attempted, or will attempt to violently overthrow the US government.
You will also be deportable if you engage in terrorist activities or other criminal acts that endanger national security, or if you participate in any acts of genocide, torture, extrajudicial (meaning without due process of law) killing, severe violations of religious freedom, or the recruitment or use of child soldiers.
You may be deportable if you become a “public charge” within five years of entering the US. The definition of “public charge” is surprisingly technical, but it hinges on the details of the state or federal law providing the benefit, and whether or not they impose some kind of legal obligation (like a debt) on you when you accept them. Merely accepting some kind of government benefit, like food stamps or free child health care, does not automatically mean that you are a public charge.
This deportability ground only applies if the circumstances that caused you to become a public charge existed before you entered the US. This means that, for example, if you came to the US with a good job lined up, but you were subsequently injured on the job and needed to use government assistance because you were unable to work, the fact that you accepted government benefits would not necessarily make you deportable.
If you have ever voted in any federal, state, or local election, and you didn’t have legal authorization to do so, you are deportable. The only potential exception would be if you are the child of a US citizen, you lived in the US before you turned 16 years old, and you reasonably believed you were a US citizen at the time you voted.
Foreign Policy Grounds
If USCIS determines that your presence in the US would be adverse to US foreign policy, you are deportable. Unless you’re a very important person in your home country, or you have done something of international significance, it is highly unlikely this ground will apply to you.
This article is part of our ongoing “Immigration 101” series, in which we break down topics in US immigration law. For more articles in this series, click here.
The content in this post was originally written by Stuart Nickum and adapted by Lena Barouh.
Disclaimer: The content in this blog is intended to be used for informational purposes only. Nothing herein should be construed as legal advice or opinion. If you are seeking legal advice, please contact us.