Immigration Consequences of Criminal Activity Report
Updated October 23, 2006
Michael John Garcia and Larry M. Eig
American Law Division
Immigration Consequences of Criminal Activity
Congress has broad plenary authority to determine classes of aliens who may be admitted into the United States and the grounds for which they may be removed. Pursuant to the Immigration and Nationality Act (INA), as amended, certain conduct may either disqualify an alien from entering the United States ("inadmissibility") or provide grounds for his or her removal/deportation. Prominently included among this conduct is criminal activity. "Criminal activity" comprises acts violative of federal, state, or, in many cases, foreign criminal law. It does not cover violations of the INA that are not crimes, most notably, being in the U.S. without legal permission. Thus, the term "illegal alien" — an alien without legal status — is not synonymous with "criminal alien."
Most crimes affecting immigration status are not specifically mentioned by the INA, but instead fall under a broad category of crimes, such as crimes involving moral turpitude or aggravated felonies. In addition, certain criminal conduct precludes a finding of good moral character under the INA, which is a requirement for naturalization and certain types of immigration relief.
In certain circumstances, grounds for inadmissibility or deportability may be waived. In some cases, aliens facing removal may be allowed to remain in the United States — for example, when they are granted discretionary or mandatory relief from removal for humanitarian reasons, such as through asylum, withholding of removal, or cancellation of removal. Aliens facing removal may also be permitted to depart the United States voluntarily, and thereby avoid the potential stigma and legal consequences of forced removal. Criminal conduct may affect an alien’s eligibility for either voluntary departure or discretionary relief from removal. Additionally, criminal conduct is a key disqualifying factor under the character requirement for naturalization.
In the 109th Congress, a few proposals have been made to expand the immigration consequences of criminal activity. Two notable bills would expand the categories of criminal activity serving as grounds for inadmissibility and/or deportation and also make aliens who have committed certain crimes ineligible for certain forms of relief from removal: (1) H.R. 4437, the Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005, which was introduced by Representative James Sensenbrenner on December 6, 2005, and passed the House as amended on December 16, 2005, by a vote of 239 to 182; and (2) S. 2611, the Comprehensive Immigration Reform Act of 2006, which was introduced by Senator Arlen Specter on April 7, 2006, and passed the Senate as amended on May 25, 2006, by a vote of 62 to 36. This report also briefly discusses the alien-street-gang-related provisions of H.R. 6094, the Community Protection Act of 2006, which was introduced by Representative Sensenbrenner on September 19, 2006, and passed the House on September 21, 2006, by a vote of 328 to 95.