Jacob Tingen: Welcome again to Nation of Immigrants. It’s kind of exciting. We’re on episode nine, and it’s only been a couple of weeks, so there have been a lot of things to talk about in the immigration world. Today, we’re going to talk about, again, grounds of inadmissibility. It seems to be a hot topic right now, particularly public charge, and what that means. I wanted to go over all of the reasons that we as a country don’t allow immigrants into our nation, so here’s the top 10 list of reasons that we exclude people from our country. Let’s get started with Nation of Immigrants.
Announcer: You’re listening to Nation of Immigrants-
President Obama: America is a nation of immigrants.
Announcer: … a podcast about US immigration law, with your host, Jacob Tingen.
Jacob Tingen: Thanks again as always for listening. Like I said, today we’re going to talk about the top 10 list of why people aren’t allowed into the country, which is kind of tongue and cheek, because it’s not really a top 10 list, but there is literally a list of 10 reasons that we keep people out of the country. I thought I’d review each of them with you, so that you can get a sense of what these grounds of inadmissibility are. Again, I just want to break down this phrase, because it’s a big, legal-sounding phrase. A ground of inadmissibility is a reason that we keep people out of the country. That’s all it is.
Jacob Tingen: Like I said, there are 10, and here they are, just in short form, and then we’ll go through each one. There’s health-related grounds, criminal grounds, security grounds, public charge grounds, which again is very popular and kind of a hot topic right now, labor certification grounds, undocumented entry and immigration violations, document requirements, ineligibility for citizenship, people who’ve been previously removed or have unlawful presence, and then finally just some miscellaneous grounds, that literally number 10, miscellaneous, in the US code.
Jacob Tingen: The grounds of inadmissibility are listed in INA section 212, so that’s the Immigration and Nationality Act. Let’s go through the different grounds of inadmissibility. I have a bit of a cheat sheet today. No lawyer remembers every aspect of all the laws that they could learn, so I have kind of a cheat sheet with me, and then also, we’ll be referencing the US code, and just kind of looking closely at what it has to say, and to get a sense of reasons that the United States has decided to keep people out of the country.
Jacob Tingen: Like I said, the first grounds of inadmissibility is going to be health-related grounds. If you’ve got Ebola, you’re not allowed inside, those kinds of things. But historically, there have been a number of people with different diseases who haven’t been allowed inside the United States, diseases like HIV and tuberculosis, and then also people, even just with physical or mental disorders, that we believe as a nation might cause a danger or harm to our society, we may not let those people in.
Jacob Tingen: So, you know, health-related grounds of inadmissibility may not really jive with you. You may say, “Well, that’s…” Again, as frequently comes up in these conversations, “I didn’t think that we would treat people that way,” but again, we do. We exclude people. We have these laws to exclude people, and some of the reasons for exclusion, you’re not going to be in agreement with, and others you’re going to think are okay. But yeah, there are reasons to exclude people from the United States under this health-related grounds section of inadmissibility.
Jacob Tingen: Then the other thing that I want to point out to you, I had a comment on my blog recently. I want to make sure the people listening to this are understanding I’m not presenting or advocating for or against any particular grounds of inadmissibility. My purpose here is to educate what the grounds of inadmissibility are. Some of my podcasts and some of my content definitely is directed at, “This is wrong,” like I do believe that public charge grounds of inadmissibility is generally wrong, or at least the way it’s implemented. So I don’t want to imply that I think it’s a good idea for people with diseases, necessarily to be excluded from our country. Again, some of these diseases that are explicitly listed have been cured or eliminated to a large extent, through vaccinations and those kinds of things, so you know, the law’s in need of an update, but the concept, health-related grounds of inadmissibility exists.
Jacob Tingen: The second ground of inadmissibility in the code is criminal grounds. We keep people out of the country if they have a criminal history. It’s interesting, because the criminal grounds of inadmissibility focuses on people who have convictions for crimes involving moral turpitude, and that’s a fancy way of saying crimes that demonstrate a lack of honesty, or a lack of character. You’ll see phrases like this in the INA. That’s, again, the Immigration and Nationality Act, about good moral character. We’re concerned, or at least when the laws were drafted, we were concerned about the moral character or the moral wellbeing of the people coming to our country, and of course, as a society, we need to be concerned today about the moral wellbeing of the people already here, and people who were born here.
Jacob Tingen: So, it’s a good idea to keep in mind where some of these statutes come from. They are written in language and with concepts that harken to old days. Later, we’ll talk about how communists aren’t allowed into the United States, because you know, some of these laws were written in the ’80s when that was kind of a big deal. Okay, so criminal and related grounds, crimes involving moral turpitude, or controlled substance crimes, so a lot of anti-drug efforts are reflected in the reasons that we would keep people out of the country. Then, there’s a certain list of criminal convictions also, that people would be excluded under, and we’ll cover aggravated felonies another day, but again, this episode is to give you a sense of the reasons we keep people out, so number two, criminal grounds of inadmissibility.
Jacob Tingen: What’s interesting about the term conviction of certain crimes, I think is something we should talk about. In the criminal justice system, you are innocent until proven guilty. Under the INA, you are essentially guilty until proven innocent. In a criminal scenario, many times a criminal charge can be dismissed completely. Let’s say it’s a misdemeanor charge, and someone decides to do community service, and the judge cuts them a break, and the prosecutor works with them and helps them rehabilitate instead of just going straight for punishment. Sometimes, many times, a charge can be dismissed. However, depending on any plea deals that were made, or any pleas that were made, or the procedure in your state or in your particular case, under the INA, an immigrant may still be considered convicted. So the INA is a lot less merciful when it comes to criminal convictions than our laws typically require in the criminal justice system. So I think that’s important to talk about. That is a bit of a hot topic, and something we should touch on, and we will in another episode more in depth, but today, we’re moving on and talking about the different grounds of inadmissibility.
Jacob Tingen: The next ground of inadmissibility is going to be security grounds. That has to do… Terrorists, right? Spies, people who are coming to sabotage our government. We obviously don’t want to let people in who intend to harm our country. I think that goes without saying, but you know, of course it is said here in the law that we keep out people who intend to cause us harm.
Jacob Tingen: The next on the list is going to be public charges. Public charge grounds of inadmissibility is ground number four. We’ve talked about this in an episode already. It’s kind of become a hot topic today, because of a shifting policy with USCIS. For those of you who aren’t already aware, you can listen to my first episode, where we talk about what’s happening, but basically, USCIS is expanding its definition of who would become a public charge. Here’s the actual language from the INA section 212(a)(4), “Any alien who, in the opinion of the consular officer at the time of the application for a visa, or in the opinion of the attorney general at the time of application for admission or adjustment of status, is likely at any time to become a public charge as inadmissible.”
Jacob Tingen: Again, we mentioned that this could include people… unfairly excludes women sometimes. “Oh, you’re of child-bearing age. Well, you might have a child. You might become a public charge. We’ll exclude you.” I don’t think that that’s necessarily common, but I have heard of justifications like that being used to exclude people. It’s interesting, because the statute here actually says, “Factors to be taken into account: age, health, family status, assets, resources, and financial status, and education, and skills,” so it’s interesting that they have this kind of broad number of factors, and they’re essentially instructed to discriminate, and make a difference, and say, “Hey, you know, you might become a public charge, so you’re not welcome here.”
Jacob Tingen: The next grounds of inadmissibility is titled labor certification and qualifications for certain immigrants. Basically, what this law says is if you’re going to work here, you have to have a labor certification, but I want you to listen to how it’s phrased before we go on. This is what the actual statute says, again INA 212(a)(5), big A, numerette one, “In general, any alien who seeks to enter the United States for the purpose of performing skilled or unskilled labor is inadmissible.” Did you catch that? If you’re coming to enter the United States to work, you can’t come. That’s the baseline rule. No one can come here to work.
Jacob Tingen: Now, there are a lot of people who say, “Well, that’s a good thing. We’re protecting American workers and the American economy,” but I think it’s interesting that the baseline rule is that’s not a reason to come here. You’re not invited. You’re not welcome to come here and work. Then it says, “Unless it’s determined that we have a job opening and you have a labor certification.” And labor certifications are obtained by employers who can improve that, “Hey, I’ve advertised for the job, but I can’t find a single permanent resident or US citizen willing to take my job at my location with these qualifications.”
Jacob Tingen: I can tell you, as I work with employers, that there are a great many jobs that go unfilled, and that our economy is actually better off with many of these immigrants filling these positions. Go to many construction companies, trades, workers, employers across a range of industries, and they’ll tell you, “Hey, look, I can’t find people to fill all these jobs,” and then in the tech sector, look at… You know, many of these companies who hire highly educated people, who have skills and training in our tech sector, those employers also have difficulty finding enough workers. I just think it’s interesting that the baseline rule is, “You’re inadmissible, period, if you’re coming to work.” I get it. I get the reasoning, but again, I think it’s just something that we need to revisit. There are, of course, exceptions built in to this labor certification grounds of inadmissibility, for people who fit into certain careers that we already know we have a shortage or we have a need.
Jacob Tingen: Let’s see. The next grounds of inadmissibility that’s on this list is illegal entrance and immigration violators. Basically, if you don’t come in at a port of entry, you fail to attend a removal proceeding, you don’t quite fulfill your obligations in the system when it comes to obeying our immigration laws, there will be immigration consequences. I think that that’s pretty well understood.
Jacob Tingen: Then, the next ground of inadmissibility is actually just about more of the same, in terms of documentation requirements. When you come in, you have to have the right documents to prove that you have permission to come. And that’s also pretty reasonable, and technically, you’re supposed to carry those documents around with you while you’re present in the country, so that also makes sense. You know, “Hey, if I’m coming in, I have the right paperwork.”
Jacob Tingen: The next grounds of inadmissibility is anybody who’s ineligible permanently to become a citizen of the United States. Basically, draft dodgers, those kind of people are not allowed to enter the United States ever again.
Jacob Tingen: And finally, we’ve got two more, and I wanted to focus on INA 212(a)(9), which is the ninth grounds of inadmissibility. Aliens previously removed, which includes certain aliens previously removed, and then a different subsection, aliens unlawfully present, and then finally, aliens unlawfully present after previous immigration violations. I want to talk about the impact of unlawful presence on the ability for certain immigrants to get right with the law. This is another one of those phrases that I hear people talk about. They’ll say, “Why don’t people get in line? Why don’t they work towards getting legal status?” And I think both of those questions kind of assume that there is a fair process that people can engage in to get right with the law, or get in line.
Jacob Tingen: But unfortunately, our immigration laws punish people who are here without lawful presence, in such a way that it makes it very difficult for them to get right with the law. In fact, I don’t know a single immigrant who wouldn’t want to get right with the law, and would do everything within their power to do so. But unfortunately, if they’re here without lawful presence, after 180 days, there is a three-year time bar on their ability to obtain lawful presence in the United States, and if they’re here for more than a year without lawful presence, there is a 10-year time bar, okay? Then additionally, if I’ve been in the United States for more than a year unlawfully, and I exit, then I somehow manage to reenter, again, unlawfully, then there’s a permanent bar, which isn’t quite permanent, but it’s considered the permanent bar to adjustment to status or getting right with the law.
Jacob Tingen: Then again, if somebody’s been deported, or removed as the word is, then there are time bars on their ability to come back and get lawful status in that scenario as well. So it’s interesting that there are all these different time bars, that there are all these different rules that impact someone who has had an immigration violation, overstayed a visa, or who has entered somehow and been here longer than six months to a year.
Jacob Tingen: And what’s interesting is that many of these people who’ve been here longer than a year, they start to pay rent, they start to get jobs, they start to pay taxes, they start to contribute to society. Many of them get married. Many of them have children. So five to 10 years later, they have a life, and at that point is where you have this kind of humanitarian concern, which is, “Well, is it really fair to deport these people?” Some would say, “Yes, absolutely. They entered unlawfully. They have unlawful presence.” Then others would say, “Absolutely not.”
Jacob Tingen: This is definitely a topic. INA 212(a)(9), the ninth reason we keep people out of the country, is one that I deal with a lot as an immigration attorney, and I deal with a lot of families who are in these difficult situations. I think it’s important to recognize that the only reason these people are not compliant with the law is because of some, essentially construct, social construct that we’ve created. There’s nothing immoral, for example, about moving 100 yards to the north or 100 miles to the north, if say you’re in Mexico and you move into Texas. There’s nothing necessarily immoral about that, except for the fact that we made a law that says it is.
Jacob Tingen: So, to treat these families, and many of them in Central America… When we have our asylum discussion, we’ll talk more about this, but to treat these families in such a way that they’ll be deported back to dangerous conditions, or where a caregiver will be deported back to dangerous conditions when they’ve built and developed a life in the US, I don’t think adequately understands the situation. So, I’ve been prepping for my asylum conversation, and we’ll talk about that, but unlawful presence and how we treat immigrants who aren’t here lawfully is an important topic. But you need to know that this is the ninth reason that we don’t let people into the country.
Jacob Tingen: All right, and then miscellaneous grounds for denying entry to the country. Basically, polygamists, people who’ve been Nazis or communists… Actually, I think the Nazi and communist bit was earlier. But polygamists, people who’ve kidnapped children internationally, unlawful voters. These people, those are just kind of the catch-all, “Let’s throw this into we don’t want these people either,” grounds of inadmissibility. Yeah, Nazis and communists aren’t allowed under the third reason, security grounds.
Jacob Tingen: That’s it for the grounds of inadmissibility. Now you know that there are 10 reasons that we keep people out of the country. Now you know what those 10 reasons are. And just to give a short recap, we’ll count them again. One, health-related grounds, two, criminal grounds, three, security grounds, four, public charge, five, labor certification grounds, six, undocumented entry and immigration status violations, six, documentation requirements, seven, ineligibility for citizenship, eight, ineligibility for citizenship, nine, previous removal or unlawful presence, and 10, miscellaneous.
Jacob Tingen: Those are the different grounds of inadmissibility. If you have any comments, I’d like to hear what you have to say about this issue. It should be part of the public debate that we have about immigration. The reasons that we keep people out of the country, are they fair? Do they reflect American values? Is this who we want to be as a country? So that’s why I’m introducing this episode now, especially as we debate public charge and its expansion under USCIS, and its impact on people, unfortunately its impact on US citizens, and their desire to seek help under programs that they are entitled to receive.
Jacob Tingen: Hopefully this has been educational, helpful, and informative. If you have any questions, again, put them in the comment. If you have questions about a specific case, contact the office, but if you have any comments, put them in the YouTube form, and we’ll respond to them, and thank you again for listening.
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President Obama: America is a nation of immigrants.
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