Immigration Consequences of Criminal Activity

Congressional research reportMay 28, 2021

Ask Donna

What actually matters in this document.

Text

Immigration Consequences of Criminal

Activity

Updated May 28, 2021

Congressional Research Service

https://crsreports.congress.gov

R45151

SUMMARY

Immigration Consequences of Criminal Activity

R45151

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

Legislative Attorney

amended, Congress has specified grounds for the exclusion or removal of aliens,

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

all criminal grounds for deportation, a “conviction” (as defined by the INA) for the underlying offense is

necessary. Additionally, although certain criminal conduct may disqualify an alien from various immigrationrelated benefits or forms of relief, the scope of disqualifying conduct varies depending on the particular benefit or

form of relief at issue.

Congressional Research Service

Immigration Consequences of Criminal Activity

Contents

Administration of Immigration Laws ................................................................................. 2

Criminal Grounds for Inadmissibility and Deportation .......................................................... 4

Criminal Grounds of Inadmissibility Under INA § 212(a)(2) ............................................ 5

Criminal Grounds of Deportability Under INA § 237(a)(2) .............................................. 7

Crime Involving Moral Turpitude ...................................................................................... 8

Aggravated Felony ........................................................................................................ 10

Crimes Affecting “Good Moral Character”........................................................................ 12

Relief from Removal and Obtaining Certain Immigration Benefits ....................................... 13

Waiver for Criminal Inadmissibility Grounds ............................................................... 13

Aliens Seeking Admission as LPRs ....................................................................... 14

Aliens Seeking Admission as Nonimmigrants ......................................................... 15

Cancellation of Removal........................................................................................... 15

Voluntary Departure................................................................................................. 18

Withholding of Removal........................................................................................... 18

Convention Against Torture....................................................................................... 20

Asylum .................................................................................................................. 20

Refugee Status ........................................................................................................ 21

Adjustment of Status ................................................................................................ 22

Temporary Protected Status....................................................................................... 23

Naturalization: Impact of Criminal Activity....................................................................... 23

The Intersection of Criminal Law and Immigration: Select Legal Issues ................................ 24

The Duty to Inform about Immigration Consequences from a Criminal Conviction ............ 24

What Constitutes a Conviction? ................................................................................. 25

Approaches to Determine Whether a Criminal Conviction Triggers Immigration

Consequences....................................................................................................... 27

Interpreting the INA Predicate Offense ....................................................................... 30

Issues for Congress ....................................................................................................... 32

Tables

Table 1. Criminal Grounds of Inadmissibility Under INA § 212(a)(2)...................................... 5

Table 2. Criminal Grounds of Deportation Under INA § 237(a)(2) .......................................... 7

Table 3. Aggravated Felony Offenses Under INA § 101(a)(43)(F)......................................... 10

Table 4. Criminal Bars to Good Moral Character................................................................ 12

Contacts

Author Information ....................................................................................................... 33

Congressional Research Service

Immigration Consequences of Criminal Activity

ongress’s power to establish rules for the admission of non-U.S. nationals (aliens 1 ) has

long been viewed as plenary. 2 In the Immigration and Nationality Act (INA), as amended, 3

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, cancellation 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. Finally,

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 well

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)).

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).

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).

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 Permanent 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).

Congressional Research Service

Immigration Consequences of Criminal Activity

as judicial interpretation of particular INA provisions that may render aliens who have been

convicted of certain crimes removable.

Administration of Immigration Laws

Originally enacted in 1952, the INA unified the country’s immigration laws under one umbrella

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 all other laws relating to the immigration and naturalization of aliens, except

insofar as this chapter or such laws relate to the powers, functions, and duties conferred upon the

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 typically 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,

Immigration & 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”).

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 & M AILMAN, ET AL ., I MMIGRATION L AW & PROCEDURE, § 1.02, Scope, Agencies, and Sources.

8 C.F.R. § 100.1. See generally CRS Legal Sidebar LSB10362, Immigration Arrests in the Interior of the United

States: A Brief Primer, 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.

Congressional Research Service

Immigration Consequences of Criminal Activity

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 typically

assesses an alien’s removability and eligibility for relief from removal. 20 At the removal

hearing—a civil proceeding21 —aliens generally have a right to legal counsel at their own

expense. 22 An 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 well.) 24 Additionally, as was the case before enactment of

the Homeland Security Act, Attorney General rulings “with respect to all questions of law shall 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 appellate 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 allegedly

committed is of the type of conduct covered by a particular removal ground in the INA). 27

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. Customs and Border Protection’s Powers and Limitations: A Brief Primer, 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.

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).

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 a ny 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)).

Congressional Research Service

Immigration Consequences of Criminal Activity

Another executive branch agency, the State Department, takes the lead role in processing the

visas that aliens must generally 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 typically 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 will 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 generally 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-waiverprogram.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 & Bermuda, https://travel.state.gov/content/travel/en/usvisas/tourism-visit/citizens-of-canada-and-bermuda.html (last visited May 5, 2021).

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 P ROT., 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/tourismvisit.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); Employment, 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.

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).

Congressional Research Service

Immigration Consequences of Criminal Activity

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,

admitted to having committed, or

admitted to committing acts that

constitute the essential elements of

a “crime involving moral turpitude,”

unless the crime was a purely

political offense (or an attempt or

conspiracy to commit such a crime)

Does not apply to an alien who

committed only one crime if (1) the

crime was committed when the

alien was under 18 and the crime

was committed (and the alien

released from confinement) more

than five years before applying for

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

Controlled substance offenses

An alien who has been convicted of,

admitted to having committed, or

admitted to committing acts that

constitute the essential elements of

a violation of any federal, state, or

foreign controlled substance law (or

an attempt or conspiracy to commit

such a crime)

None

Multiple criminal convictions

An alien who has been convicted of

two or more offenses for which the

aggregate sentences were five or

more years of confinement

None

Drug trafficking

An alien who immigration

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)

None

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).

Congressional Research Service

Immigration Consequences of Criminal Activity

Ground of Inadmissibility

Covered Aliens

Exceptions

Prostitution and commercialized

vice

An alien who is coming to the

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

None

Serious criminal activity

An alien who has been involved in

serious criminal activity a in the

United States, gained immunity

from prosecution, and, as a result,

departed the United States

None

Human trafficking

An alien who has committed or

conspired to commit a human

trafficking offense in the United

States or abroad, or who the U.S.

government knows or has reason

to believe has been involved in

severe forms of human trafficking b

(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)

Does not apply to a son or

daughter of human trafficker who

was a child at the time of receiving

benefit from human trafficking

activity

Money laundering

An alien who relevant immigration

authorities know, or have reason to

believe, has engaged in, is engaging

in, or seeks to enter the United

States to engage in money

laundering c (including aiding or

conspiring in money laundering)

None

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”).

See 18 U.S.C. §§ 1956-1957 (money laundering offenses).

Congressional Research Service

Immigration Consequences of Criminal Activity

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

involving moral turpitude

(committed within 10 years of

admission in the case of an LPR, or

five years after admission for other

categories of aliens) for which a

sentence of imprisonment for one

year or longer may be imposed

Does not apply if the alien is

granted a full and unconditional

pardon following the criminal

conviction

Multiple criminal convictions

Aliens convicted of two or more

crimes involving moral turpitude

that did not arise out of a single

scheme of criminal misconduct

Does not apply if the alien is

granted a full and unconditional

pardon following the criminal

conviction

Aggravated felonies

Aliens who were convicted of an

aggravated felony

Does not apply if the alien is

granted a full and unconditional

pardon following the criminal

conviction

High-speed flight

Aliens convicted of engaging in a

high-speed flight from an

immigration checkpoint a

Does not apply if the alien is

granted a full and unconditional

pardon following the criminal

conviction

Failure to register as a sex offender

Aliens convicted for failing to

Sex Offender Registration and

Notification Act (SORNA) b

None

Controlled substance offenses

Aliens convicted of violating any

federal, state, or foreign controlled

substancec law or regulation

(including a conspiracy or attempt

to violate such law or regulation)

Does not apply if conviction is for a

single offense of possessing for

personal use 30 grams or less of

marijuana

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 example, INA § 237 covers alien

smuggling, marriage fraud, falsification of documents, terrorist activities, genocide, and acts of torture, which may be

subject to separate criminal sanction. Id. § 1227(a)(1)(E), (a)(1)(G), (a)(3)(B), (a)(4).

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).

Congressional Research Service

Immigration Consequences of Criminal Activity

Ground of Deportability

Covered Aliens

Exceptions

Certain firearm offenses

Aliens convicted of unlawfully

purchasing, selling, offering for sale,

exchanging, using, owning,

possessing, or carrying a firearm or

destructive deviced (including an

attempt or conspiracy to engage in

such activity)

None

Miscellaneous crimes

Aliens convicted of offenses related

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

ally, 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 prostitution e

None

Domestic violence offenses

Aliens convicted of a crime of

domestic violence, stalking, child

abuse, child neglect, or child

abandonment

None

Violators of protective orders

Aliens who have violated a

protective order related to

harassment or domestic violence

None

Human trafficking offenses

Aliens who have committed human

trafficking offenses as described in 8

U.S.C. § 1182(a)(2)(H)

Does not apply to a son or

daughter of human trafficker who

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)(ii), (a)(2)(A)(iii), (a)(2)(A)(iv), (a)(2)(A)(v), (a)(2)(B)(i), (a)(2)(C),

(a)(2)(D), (a)(2)(E).

Notes:

See 18 U.S.C. § 758 (high-speed flight offenses).

See id. § 2250.

See 21 U.S.C. § 802 (defining a “controlled substance”).

See 18 U.S.C. § 921(a) (defining “firearm” and “destructive device”).

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

Congressional Research Service

Immigration Consequences of Criminal Activity

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 appellate 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 generally 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 generally 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 . I MMGR. 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

Uniformity in the Deportation of Criminal Aliens, 25 N.Y.U. REV. L. & SOC. CHANGE 357, 362 (1999) (“Because the

classification ‘crimes of moral turpitude’ is not clearly defined in the INA, courts have struggled to create a

definition.”) 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

Congressional Research Service

Immigration Consequences of Criminal Activity

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 well 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

Murder

Theft or burglary offenses for which

the term of imprisonment is at least

one year

Tax evasion with a revenue loss to

the government exceeding $10,000

Rape

Offenses related to demanding or

receiving ransom

Alien smuggling (but not if it is a

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.

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).

Congressional Research Service

Immigration Consequences of Criminal Activity

Enumerated Offense

Illicit trafficking in a controlled

substance as defined in 21 U.S.C. §

802 (including a “drug trafficking

crime,” defined in 18 U.S.C. 944(c)

as any felony punishable under the

Controlled Substances Act)

Racketeering or gambling offenses

for which a sentence of one year of

imprisonment or more may be

imposed

Falsely making, forging,

counterfeiting, mutilating, or

altering a passport or immigration

document for which the term of

imprisonment is at least twelve

months (but not if it is a first

offense for the purpose of aiding or

assisting the alien’s spouse, child, or

parent)

Illicit trafficking in firearms,

destructive devices, or explosive

materials

Offenses involving a prostitution

business (including offenses

involving the transportation of

persons for the purpose of

prostitution or unlawful sexual

activity as described in 18 U.S.C.

§§ 2421 to 2423, if committed for

commercial advantage)

Failing to appear to serve a

sentence if the underlying offense is

punishable by imprisonment for five

years or more

Money laundering or engaging in

monetary transactions in property

derived from specific unlawful

activity, if the amount of funds

exceeded $10,000

Offenses related to peonage,

slavery, involuntary servitude, or

human trafficking

Commercial bribery, counterfeiting,

forgery, or trafficking in vehicles

with altered identification numbers,

if the term of imprisonment is at

least one year

Offenses related to firearms or

explosive materials

Gathering or transmitting national

defense information, disclosing

classified information, unlawfully

identifying undercover agents,

sabotage, or treason

Obstruction of justice, perjury,

subornation of perjury, or bribery

of a witness for which the term of

imprisonment is at least one year

A crime of violence (as defined in

18 U.S.C. § 16) for which the term

of imprisonment is at least one year

Fraud offenses in which the loss to

the victim(s) exceeds $10,000

Failing to appear in court pursuant

to a court order to answer or

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)(ii), (K)(iii) (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)(ii) (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 actually 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 well as violations of foreign law if the term of imprisonment was completed within the prior 15

years. 54 Additionally, 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).

Congressional Research Service

Immigration Consequences of Criminal Activity

An alien convicted of a crime that falls 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 Additionally, an alien who has committed an aggravated felony and is

removed from the United States will 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

vices

Conviction for an aggravated felony (for naturalization

applications, the aggravated felony conviction must have

occurred on or after November 29, 1990; but murder

convictions will bar good moral character if they

occurred at any time)

Crimes involving moral turpitude (other than a purely

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

Participation in genocide

Violations of any law or regulation relating to a

controlled substance

Commission of acts of torture or extrajudicial killings

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).

See id. §§ 1229b(b)(1)(B) (requiring showing of good moral character for at least ten years to qualify for cancellation

of removal and adjustment of status for nonpermanent residents), 1229b(b)(2)(A)(iii) (requiring showing of good moral

character for at least three years to qualify for cancellation of removal and adjustment of status for aliens who have

been battered or subjected to extreme cruelty); 1229c(b)(1)(B) (requiring good moral character for at least five years to

be eligible for voluntary departure).

See id. § 1427 (requiring showing of good moral character for at least five years preceding date of application for

naturalization, but not precluding USCIS from considering app licant’s conduct and acts at any time before that period).

61 Id. § 1101(f).

Congressional Research Service

Immigration Consequences of Criminal Activity

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 principally from illegal 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)(ii)-(iii)); 8 C.F.R. §§ 316.10(b)(1)(i)(ii).

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 falls 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, cancellation 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 typically 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).

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.

Congressional Research Service

Immigration Consequences of Criminal Activity

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

Additionally, 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 Additionally, 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.

8 U.S.C. § 1182(h).

68 Id.

69 Id. § 1182(h)(1)(A).

Id. § 1182(h)(1)(B).

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

Congressional Research Service

Immigration Consequences of Criminal Activity

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 potentially 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 cancellation 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 Cancellation of removal allows 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).

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).

Congressional Research Service

Immigration Consequences of Criminal Activity

inadmissible or deportable. 79 But some criminal activity may bar the Attorney General from

exercising that discretion.

Eligibility for cancellation 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 physically 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 cancellation 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 still preclude

that individual from meeting other requirements for cancellation of removal. Under the “stoptime rule,” any period of continuous residence in the United States for purposes of cancellation 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 unrelinquish ed domicile of seven consecutive years.” 8

U.S.C. § 1182(c) (1995). Notably, § 212(c) relief was available to an LPR even if he had been convicted of an

aggravated felony, as long as he did not serve a term of imprisonment of at least five years. Id. Ultimately, § 212(c) was

repealed by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) in favor of the new

cancellation of removal provision (which categorically bars relief to aliens convicted of any aggravated felony).

See IIRIRA, P.L. 104-208, § 304, 110 Stat. 3009 (1996). However, in INS v. St. Cyr, the Supreme Court ruled that §

212(c) relief remained available to aliens whose criminal convictions resulted from plea agreements and who would

have been eligible for § 212(c) relief at the time of their plea. 533 U.S. 289, 326 (2001). Therefore, although § 212(c)

relief has been superseded by statute, there is a small (and decreasing) category of aliens who may still be eligible for

such relief.

8 U.S.C. § 1229b(b).

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.”).

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,

Congressional Research Service

Immigration Consequences of Criminal Activity

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 actually

charged as being inadmissible or deportable based on that offense. 84

While commission of a criminal offense may bar an LPR from cancellation of removal in certain

circumstances (e.g., an aggravated felony conviction), non-LPRs are ineligible for cancellation 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

Additionally, an alien who is not an LPR cannot receive cancellation 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, Supreme Court Rules That Lawful Permanent Residents May Be Treated as “Inadmissible” Under

Cancellation of Removal Statute, by Hillel R. Smith.

85 8 U.S.C. § 1229b(b).

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

Congressional Research Service

Immigration Consequences of Criminal Activity

Voluntary Departure

INA § 240B authorizes relevant immigration authorities to allow 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 formally 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).

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).

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).

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).

Congressional Research Service

Immigration Consequences of Criminal Activity

will be threatened upon return to his country” (i.e., that “it appears more likely than not that he

will 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 typically 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 killing;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.

Congressional Research Service

Immigration Consequences of Criminal Activity

Convention Against Torture

An alien who fears torture in the country of his removal may apply for protection under the

Convention Against Torture (CAT). 106 There are two forms of CAT protection: withholding of

removal and deferral of removal. 107 To qualify for CAT-based relief, an alien must show that it is

more likely than not that he would be tortured by the government or a person acting with the

consent or acquiescence of that government in the country of removal. 108 If the Attorney

General109 determines that the alien has met that burden, the alien may not be removed to the

country of removal, but DHS may still 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 falls 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 allows 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 unwilling to return to his or her country because of

past persecution or a well-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).

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).

114

115 See 8 C.F.R. § 208.2; Regina Germain, Seeking Refuge: The U.S. Asylum Process, 35-OCT COLO . L AW. 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

Admissions and Resettlement Policy, by Andorra Bruno.

Congressional Research Service

Immigration Consequences of Criminal Activity

nationality, political opinion, or membership in a particular social group. 116 In other words, the

Attorney General or DHS has the discretion to grant asylum to those aliens who can establish that

they suffered past persecution in their home country or have a well-founded fear of future

persecution in that country on account of belonging to a protected group. 117 The well-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 wellfounded 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).

Congressional Research Service

Immigration Consequences of Criminal Activity

humanitarian concern to the United States,” and (3) is generally 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 physically

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 all inadmissibility grounds—

including all 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).

Congressional Research Service

Immigration Consequences of Criminal Activity

Temporary Protected Status

Under INA § 244, the Attorney General or DHS may grant Temporary Protected Status (TPS)

relief to certain aliens from designated countries that are (1) afflicted with ongoing armed conflict

posing a serious threat to the nationals of those countries; (2) disrupted by natural disasters or an

epidemic; or (3) otherwise experiencing “extraordinary and temporary conditions in the foreign

state that prevent aliens who are nationals of the state from returning to the state in safety.”135

However, certain criminal activity can make an alien ineligible to receive TPS relief. Although

the relevant immigration authorities have the discretion to waive most inadmissibility grounds in

granting TPS relief, 136 they may not waive inadmissibility for aliens who have

1. committed a crime involving moral turpitude other than a purely political offense

(including an attempt or conspiracy to commit such a crime); 137

2. violated any federal, state, or foreign drug law (including an attempt or

conspiracy to commit such a violation);

3. engaged in drug trafficking (other than a single offense of simple possession of

30 grams or less of marijuana); or

4. been convicted of two or more offenses (other than purely political offenses) for

which the aggregate sentences were five or more years of imprisonment.138

In addition to those nonwaivable criminal inadmissibility grounds, the relevant immigration

authorities may not grant TPS relief to an alien who (1) has been convicted of any felony or two

or more misdemeanors committed in the United States; or (2) falls 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, Temporary 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

Congressional Research Service

Immigration Consequences of Criminal Activity

criminal activity that—if committed during the relevant period—would preclude a finding of

good moral character and thus bar an LPR from naturalizing. 142 However, some types of criminal

activity permanently bar an alien from showing good moral character if they were committed at

any time, including a conviction for an aggravated felony. 143

The Intersection of Criminal Law and Immigration:

Select Legal Issues

Immigration proceedings, including those involving the removal of aliens for violating the

conditions of their entry or presence in the United States, are civil in nature. 144 However, as

discussed above, in many cases, the outcome of a criminal case may have immigration

consequences, particularly if an alien is convicted of an offense that is specified as a ground for

removal. This section examines select legal issues related to criminal proceedings as they relate to

immigration law, including the constitutional obligations of criminal attorneys representing alien

defendants, what constitutes a “conviction” under the INA, and how adjudicatory bodies

determine when a criminal conviction will 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 potentially 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).

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).

142

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.”).

Congressional Research Service

Immigration Consequences of Criminal Activity

have no Sixth Amendment right to counsel. 145 But aliens facing criminal charges in federal and

state court do have a constitutional right to effective assistance of counsel. 146 This right applies

throughout all “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 well 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 equally 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).

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.

147

149

Id. at 366.

150 Id. at 364.

151 Id. at 369; see also Dilang Dat v. United States, 983 F.3d 1045, 1048 ̶ 49 (8th Cir. 2020) (holding that attorney’s

conduct in telling defendant that he “could” face immigration consequences that “could” result in deportation, rather

than that deportation was virtually certain if he pled guilty to robbery, did not co nstitute ineffective assistance under

Padilla).

152 Padilla, 559 U.S. at 369. T he Supreme Court later ruled in Chaidez v. United States that the rule announced in

Padilla would not be applied retroactively, meaning that the holding would not apply to aliens whose criminal

convictions became final before the Padilla opinion was published. 568 U.S. 342 (2013); see also Williams v. United

States, 858 F.3d 708, 717 (1st Cir. 2017) (holding that criminal defendant could not rely on Padilla to claim that his

attorney was constitutionally ineffective by failing to advise him of the immigration consequences of pleading guilty to

an offense in 2005, before the Padilla decision was issued).

Congressional Research Service

Immigration Consequences of Criminal Activity

for what constitutes a conviction for INA purposes. First, INA § 101(a)(48)(A) defines a

conviction as a formal judgment of guilt entered by a court. 153 Generally, 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 well. 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 purposes 157 (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, still 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 allowed 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, Crumbs from

Congressional Research Service

Immigration Consequences of Criminal Activity

and (2) the judge has ordered some sort of punishment, penalty, or restraint on the alien’s

liberty. 161 Qualifying nonconfinement judicial orders can include probation 162 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 falls 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 “categorically 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, Immigration

Consequences of Criminal 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”).

Congressional Research Service

Immigration Consequences of Criminal Activity

In some cases, however, the courts may look beyond the statutory definition of a criminal offense

when the statute lists multiple, alternative elements of a crime, and only some of those

alternatives correspond to the generic offense identified by the INA as carrying immigration

consequences.170 Under this “modified categorical approach,” courts may examine the underlying

conviction documents, such as the charging papers or plea agreement, to determine which

statutory elements a defendant was convicted of, and compare those elements to the federal

generic offense. 171 The Supreme Court has held, though, that a court may not apply this approach

merely when a statute contains a “single, indivisible set of elements” that cover “a broader swath

of conduct than the relevant generic offense.”172 Instead, “[a] court may use the modified

approach only to determine which alternative element in a divisible statute formed the basis of the

defendant’s conviction.”173

The strict limitations of the categorical and modified categorical approaches do not apply,

however, when a comparison between the criminal statute and a generic offense requires an

examination of the “particular circumstances in which an offender committed the crime on a

particular occasion.”174 Applying this “circumstance-specific” exception, a number of reviewing

courts have held that an adjudicator may consider evidence outside the conviction record to

determine whether a criminal conviction involved factors specified in a generic offense that are

not tied to the elements of a criminal statute. For example, the courts have considered evidence as

to whether a fraud offense met a $10,000 loss threshold (a monetary threshold that must be

exceeded for the offense to constitute an aggravated felony under the INA), or whether a drug

conviction involved the personal use of 30 grams or less of marijuana (in which case the drug

conviction would not be a deportable offense). 175

In practice, the BIA employs the categorical and modified categorical approaches to determine

whether a criminal conviction meets the definition of a predicate offense for immigration

purposes. 176 Following the Supreme Court’s guidance, the BIA generally limits its analysis of

criminal convictions to the statutory elements of the crime, rather than the specific facts

underlying the conviction. The BIA will 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).

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).

175

176 See e.g., Matter of Nemis, 28 I. & N. Dec. 250, 251 ̶ 52 (BIA 2021); Matter of Alvarado, 26 I. & N. Dec. 895, 897

(BIA 2016); Matter of Carachuri-Rosendo, 24 I. & N. Dec. 382, 389 (BIA 2007); Matter of Puente-Salazar, 22 I. & N.

Dec. 1006, 1011 (BIA 1999); Matter of Pichardo, 21 I. & N. Dec. 330, 335 (BIA 1996); Matter of Madrigal, 21 I. & N.

Dec. 323, 325 (1996); Matter of Short, 20 I. & N. Dec. 136, 137 ̶ 38 (BIA 1989).

Congressional Research Service

Immigration Consequences of Criminal Activity

which categorically 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 realistically could reach

conduct not involving moral turpitude, an adjudicator could look to the record of conviction as

well 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 allocation 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 DominguezRodriguez, 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 determine 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.

Congressional Research Service

Immigration Consequences of Criminal Activity

over whether an alien has the burden to prove that a criminal conviction does not bar him or her

from relief from removal where the evidence is unclear as to whether the alien committed a

disqualifying crime (e.g., because the statute lists multiple alternative elements of an offense, and

only some of them correspond to the federal generic offense, and the record is inconclusive as to

which specific crime the alien committed). 185

Resolving this judicial disagreement, the Supreme Court held that, if there is ambiguity as to

whether a criminal conviction bars an alien from relief from removal, the alien has the burden of

presenting evidence that he or she did not commit a disqualifying criminal offense. 186 The Court

explained that, although the government has the burden of proving that a criminal conviction

renders an alien who has been admitted to the United States subject to removal, 187 the INA

requires aliens applying for relief from removal to prove “all 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 fill that gap, the appellate courts have generally 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 thus 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

190

Pereida, 141 S. Ct. at 767.

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

Congressional Research Service

Immigration Consequences of Criminal Activity

In defining the scope of other undefined predicate offenses, the courts have been less consistent.

For example, the INA also includes as an aggravated felony “murder, rape, or sexual abuse of a

minor.”193 Until the Supreme Court’s decision in Esquivel-Quintana v. Sessions, there was some

disagreement among reviewing courts and the BIA over the scope of offenses constituting “sexual

abuse of a minor” under the INA, with the BIA broadly interpreting the phrase to cover any

sexually 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

Initially, 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

Eventually, 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).

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.

195

196 8 U.S.C. § 1101(a)(43)(F).

197 18 U.S.C. § 16.

Compare Jobson v. Ashcroft, 326 F.3d 367, 373 ̶ 74 (2d Cir. 2003) (requiring intentional use of force), and BazanReyes 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).

198

Congressional Research Service

Immigration Consequences of Criminal Activity

violence requires an “active employment” of force with “a higher degree of intent than negligent

or merely accidental conduct.”199

In 2018, the Supreme Court in Sessions v. Dimaya ruled that the second clause of the crime of

violence definition—“any other offense that is a felony and that, by its nature, involves a

substantial risk that physical force against the person of property of another may be used in the

course of committing the offense”200 —is unconstitutionally 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).

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 Dimaya, the Ninth Circuit ruled that the INA’s definition of crime of violence—bearing language similar to the

ACCA’s residual clause—likewise is 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 (5th Cir.

2016). For more information on the ACCA and Johnson, see CRS Report R41449, Armed Career Criminal Act (18

U.S.C. 924(e)): An Overview, by Charles Doyle.

201

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. Dimaya, 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 “Crime of Violence” Definition: Overview and Judicial

Developments, by Hillel R. Smith; CRS Legal Sidebar LSB10128, High Court Strikes Down Provision of Crime of

Violence Definition as Unconstitutionally Vague, by Hillel R. Smith.

202

Congressional Research Service

Immigration Consequences of Criminal Activity

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 Additionally, 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).

Congressional Research Service

Immigration Consequences of Criminal Activity

Disclaimer

This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan

shared staff to congressional committees and Members of Congress. It operates solely at the behest of and

under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other

than public understanding of information that has been provided by CRS to Members of Congress in

connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not

subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in

its entirety without permission from CRS. However, as a CRS Report may include copyrighted images or

material from a third party, you may need to obtain the permission of the copyright holder if you wish to

copy or otherwise use copyrighted material.

Congressional Research Service

R45151 · VERSION 5 · UPDATED

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.