Although there are many grounds of inadmissibility, the number of noncitizens actually barred is relatively small, and until recently had decreased over time. For example, slightly over four million people immigrated to the United States in the ten years between 1921 and 1930. About 189,000 people, or 4.6% of the total, were excluded in that decade.2 Between 1981 and 1990, 7.3 million people immigrated to the United States. During that same time, only about 20,000 people (3/10 of one percent) were excluded. Note that these figures do not include the millions of nonimmigrants who were admitted to the United States during the same periods. For example, over 5.6 million nonimmigrant visas were issued in fiscal year 1994 alone.

Recently, the number of individuals found to be inadmissible has increased dramatically. In 2017, 216,257 immigrants and nonimmigrants were found to be inadmissible. In 2018, 104,322 immigrant visas were denied on INA § 212(a) grounds. In the same year, field officers at points of entry to the United States made 280,000 inadmissibility determinations, an increase of 30 percent from 2017. The inadmissibility rate continued to be high in 2019, with 287,977 noncitizens found to be inadmissible and inadmissibility determinations at points of entry rising an additional 2.1 percent over the 2018 level.

The grounds of inadmissibility generally apply equally to immigrants and nonimmigrants. Therefore, the grounds of inadmissibility discussed in this chapter forbid the issuance of a visa to or the admission of all noncitizens, except to the extent that specific deviations are mentioned. 

The grounds of inadmissibility listed in the INA are exclusive. They cannot be enlarged by executive fiat. Nor can executive officers or the courts disregard them. 

While some of the grounds of inadmissibility, particularly those dealing with medical infirmities, relate only to those currently afflicted, many other exclusions forever bar the affected noncitizen from the United States.

However, the statute permits the waiver of grounds of inadmissibility under certain circumstances.

The President is authorized [under section 212(f)] to impose additional restrictions on admission during a time of war or national emergency. In addition, the President is empowered at any time to suspend by proclamation the admission of all noncitizens or of any class of noncitizens, or to impose additional admission restrictions on noncitizens, when he or she finds that the entry of any class of noncitizens would be detrimental to the United States.

[1]  Distinction Between Exclusion and Inadmissibility

This chapter uses both the terms “excludability” and “inadmissibility.” Until the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), the INA used terms related to “exclusion.” The difference between exclusion and deportation used to be important, and hinged on whether a noncitizen had made an “entry” into the United States. The IIRAIRA changed “excludable” to “inadmissible” throughout the INA. It also deleted the definition of “entry” in INA § 101(a)(13) and replaced it with a definition of “admission.” Despite the change in terminology, the terms “exclusion” and “inadmissibility” are functionally equivalent.

[2]  Distinction Between Inadmissibility and Deportability

Until enactment of the IIRAIRA in 1996, there were important differences between exclusion and deportation. Noncitizens who “entered” the United States, even surreptitiously, were subject to deportation grounds and procedures. Noncitizens who had not entered the United States were subject to exclusion grounds and procedures. Individuals in deportation proceedings had greater constitutional and procedural rights than noncitizens in exclusion proceedings. Moreover, the burden of proof was on the government in deportation proceedings, while the noncitizen had the burden of proof in exclusion proceedings. The concept of entry played a major role in determining whether exclusion or deportation applied.

The IIRAIRA redrew the line between exclusion and deportation. There are still separate grounds of “inadmissibility” and “deportability,” but the distinction no longer turns on whether a noncitizen has “entered” the United States. Instead, the key question now is whether the person has been “admitted” to the United States. Grounds of inadmissibility now apply to any noncitizen who has not been admitted into the United States. Deportation grounds apply only after an individual has been admitted.

While the definition of “entry” no longer exists in the INA, the term is still relevant for certain purposes. For example, a ground of deportation still exists for individuals “who at the time of entry or adjustment of status was within one or more of the classes of aliens inadmissible by the law existing at such time.”

The IIRAIRA also consolidated exclusion and deportation proceedings into one “removal” proceeding, to cover noncitizens whether admitted or not. Although there is now only one type of proceeding, some differences remain that are functionally equivalent to pre-IIRAIRA exclusion and deportation. For example, consistent with pre-IIRAIRA law, a noncitizen has the burden to prove admissibility, and the government has the burden to show deportability. Similarly, noncitizens arriving in the United States must be removed to the country in which he or she boarded the carrier that brought him or her here, while any other noncitizen may designate one country to which he or she wants to be removed. INA § 235(b)(2) calls for detention of arriving noncitizens, while § 236 sets out rules governing detention and release on bond pending removal proceedings, apparently for noncitizens apprehended within the United States. Finally, INA § 241(c) sets out removal rules for individuals “arriving at a port of entry” and ordered removed, while § 241(a) sets out general rules for the detention and release of noncitizens who are ordered removed. All of these differences rely on something very close to the pre-IIRAIRA exclusion-deportation line.

The criminal law grounds for inadmissibility are among the more accessible provisions in the INA, though not without some complexity. Please focus on the statutory provisions themselves in doing the problems for this block - 212(a)(2), 212(h), as well as 221(g) and 101(a)(13).

Some pointers:

212(a)(2)(A)(i) renders aliens who have committed "crimes of moral turpitude" inadmissible. We will focus on the meaning of "moral turpitude" in the context of deportation. For present purposes, understand that it is very broad, including, for example, most property-related crimes.

212(a)(2)(A)(ii) governs inadmissibility for drug crimes. Understand its breadth. 

212(a)(2)(A)(ii) provides for some exceptions. Read this provision very closely to understand its narrow application. (It is implicated in some of the problems for this block.)

What is the standard of proof under sections 212(a)(2)(C) (controlled substance traffcikers) and 212(a)(2)(D) (commercialized vice)? See also 212(g).

Note also the ground for inadmissibility for multiple criminal convictions under 212(a)(2)(B).

Work through when waivers are available for criminal grounds of inadmissibility under 212(h) and what is required to establish eligibility.

1. Your client Federico qualifies for a family-sponsored first preference visa, but was convicted of petty larceny seven years ago and sent to prison for three months. Is he inadmissible? What other facts would you need to ascertain in making the determination? If he is inadmissible, are any waivers available?

2. Same facts except Federico was also convicted of reckless endangerment (DUI) three years ago and sentenced to six months in prison.

3. Same facts except the conviction was for possession of 150 grams of marijuana.

4. A Chilean national employed in the U.S. consulate in Santiago recognizes an individual, Mateo, who comes in to apply for a E-2 visa. She takes the consular officer aside and says that Mateo is well known on the streets for running an illegal gambling operation in Santiago; she wouldn't be surprised if Mateo means to set up a similar operation in Minneapolis, where he is going to open a restauarant. The consular officer subsequently makes some inquiries with a local police contact, who says he has always wondered about Mateo, especially since he associates with some individuals on the fringes of a local criminal syndicate. Is Mateo inadmissible? Should he be?