Introduction
Navigating criminal and immigration law at the same time can be overwhelming, particularly for noncitizens unfamiliar with the system. Many noncitizens assume that only criminal convictions can affect their immigration status. In reality, arrests and charges can also trigger ICE enforcement actions with serious immigration consequences. This article explains how criminal grounds of inadmissibility under INA §212(a)(2) and ICE holds can affect noncitizens involved in criminal cases.
Criminal Grounds of Inadmissibility Under INA §212(a)(2)
The Immigration and Nationality Act (INA) was enacted in 1952 and is codified in the United States Code (U.S.C.). 8 U.S.C. 1182, or INA 212 (a)(2), covers several criminal grounds of inadmissibility, including:
● Convictions for certain crimes, including crimes involving moral turpitude (CIMT)
● Multiple criminal convictions
● Controlled substance trafficking
● Prostitution or commercialized vice
● Serious criminal activity where immunity has been asserted
● Human trafficking
● Money laundering
Importantly, some individuals may be eligible for waivers of inadmissibility under §212(a)(2), but eligibility depends on the specific offense and personal circumstances.
What Is an ICE Hold and How Does It Work?
An ICE hold, also called an immigration detainer, is a request to local or state law enforcement to notify ICE before releasing an individual from custody. ICE may issue a detainer when a noncitizen is suspected of being removable, often because of arrests or criminal convictions. When honored, the detainer allows ICE to take custody for removal or detention once the criminal case concludes. If the detainer is not honored, ICE can still locate and take custody of the individual after release.
How INA §212(a)(2) and ICE Holds Intersect in Criminal Cases
Criminal charges can trigger both inadmissibility under INA §212(a)(2) and ICE enforcement actions. Even if charges are reduced or dismissed, ICE may still issue a detainer based on suspected criminal grounds. In some cases, a person may remain in ICE custody for up to 48 hours, excluding weekends and federal holidays, even after a criminal court authorizes release. This intersection can significantly affect bond, release, and immigration outcomes, making early intervention critical.
Example 1: DWI
Scenario:
John Doe, a noncitizen living in the U.S., was arrested for DWI. He completed the court’s sentence without further criminal penalties.
Implication:
Even though John served his sentence, ICE could still review the case under INA §212(a)(2)(A)(i), which covers crimes involving moral turpitude (CIMTs). Depending on the state and circumstances, a DWI may qualify as a CIMT. This could make John inadmissible for immigration purposes, and he could face an ICE detainer if taken into custody. Early consultation with an immigration attorney is essential to determine whether a waiver might be available.
Example 2: Theft
Scenario:
Jane Smith, a lawful permanent resident, was convicted of shoplifting (theft) and completed all court requirements. Later, she traveled abroad and tried to reenter the U.S.
Implication:
Theft is generally considered a crime involving moral turpitude (CIMT) under INA §212(a)(2). Even though Jane completed her criminal sentence, this conviction could make her inadmissible at the border. ICE may issue a detainer if she is in custody or deny her reentry until a waiver under INA §212(h) is granted. Consulting an immigration attorney before traveling or adjusting status is crucial to protect her options.
Why Early Immigration Advice Matters After an Arrest
A favorable outcome in criminal court does not always prevent serious immigration consequences. For this reason, noncitizens should consult an experienced immigration attorney as soon as possible after an arrest. At Shillig Law, we provide early strategic guidance to help reduce the impact of §212(a)(2) inadmissibility and ICE detainers and safeguard future immigration options.