Grounds of Deportability Based on Immigration Violations

Any individual who falls within any ground of inadmissibility under INA §212(a) is deportable. This section of the law both incorporates all of the grounds of inadmissibility and makes an individual deportable if at the time of admission or adjustment of status, he or she was in fact inadmissible based on any of the grounds of inadmissibility under §212(a).

For example, if an individual is admitted to the United States or is granted adjustment of status based on a fraudulent statement or willful misrepresentation of material fact, that individual can be found deportable based on the fact that he or she was actually inadmissible at the time of admission or adjustment but for the fraud or misrepresentation.

INA §237(a)(1)(B) makes an individual deportable if that person is present in the United States in violation of the immigration laws "or any other law of the United States."

This is a very broad statute making an individual subject to deportation if he or she is present in violation of virtually any of the immigration statutes. For example, an individual is present in violation of law where his or her authorized stay under a nonimmigrant visa has expired even where there is an extension request pending, unless and until that extension request is approved. The fact that an extension request is pending before U.S. Citizenship and Immigration Services (USCIS) does not legalize one’s status before the immigration court.

An individual is deportable even if lawfully admitted as a nonimmigrant "temporary visitor" if that person fails to maintain lawful nonimmigrant status. Noncompliance with the conditions of nonimmigrant status makes an individual deportable under INA §237(a)(1)(C)(i). Often, this involves individuals whose temporary status has expired or individuals who have taken some action that violates the conditions of their temporary status, e.g., working without authorization. Also, as a student, failure to attend school as required after admission is a deportable offense.

Conditional permanent residence is granted in two situations. First, under INA §216(a), an individual who has gained lawful permanent resident (LPR) status based on a marriage that was entered into "less than 24 months before the date the alien obtains such status by virtue of such marriage" is granted "conditional permanent resident" status.

The son or daughter of a conditional permanent resident who is given lawful status in the United States also is subject to the same "conditional" status.

Second, INA §216A provides for a two-year conditional permanent resident status for "alien entrepreneurs."

These are individuals, along with their spouses and children, who obtain LPR status under the investor provisions of INA §203(b)(5). In both the marriage and entrepreneur situations, the alien must petition for removal or waiver of the conditional status.

An alien who has knowingly encouraged, induced, assisted, abetted, or aided any alien to enter or try to enter the United States is deportable. An individual is deportable if he or she has taken such action prior to the date of his or her own entry, at the time of his or her own entry, or within five years of the date of any entry into the United States.

The §237(a)(1)(E) ground of deportability does not apply in certain family reunification situations. The following are not deportable under this ground:

• spouses or unmarried children of principal aliens who were granted legalization under the Immigration Reform and Control Act of 1986 (IRCA);
• Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359 (partially codified in scattered sections of the INA).
• who were physically present in the United States as of May 5, 1988; and
• who are seeking: (1) admission as immediate relatives or second preference beneficiaries of the petition filed by the principal alien; or (2) family unity benefits under Section 301 of the Immigration Act of 1990 (IMMACT90);
• Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978.
• who have attempted to smuggle a spouse, parent, son, or daughter, and no other individual prior to May 5, 1988.

In addition, there is a waiver of this ground of deportation for LPRs under the following conditions: (a) the LPR has encouraged, induced, assisted, abetted, or aided only an individual who was a spouse, parent, son, or daughter to enter the United States; and (b) that relationship existed at the time of the smuggling offense.

See < INA §237(a)(1)(E)(iii); prior to IIRAIRA’s amendments, the Board of Immigration Appeals (BIA) interpreted the waiver to include spouses, sons, and daughters even if that relationship arose after the incident. Matter of Farias-Mendoza, 21 I&N Dec. 269 (BIA 1996).

This waiver may be sought in cases where an LPR is deportable under this ground for smuggling the family members cited above on or after May 5, 1988.

An individual is deportable for having procured a visa or other documentation by fraud under INA §212(a)(6)(C)(i) when the following conditions are met:

1. the individual obtains any admission into the United States with an immigrant visa or other documentation procured on the basis of a marriage;
2. that marriage was entered into less than two years prior to the date of such admission of the alien; and
3. within two years subsequent to the date of the admission, the alien has the marriage annulled or terminated, unless the alien establishes that such marriage was not contracted for the purpose of evading the immigration laws.