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Basic Concepts of Inadmissibility under Section 212(a) of the Immigration and Nationality Act

The word “inadmissible" is a legal term of art. With respect to non-citizens/aliens, inadmissibility means that one is “not-admissible", or in layman’s terms – not allowed to enter. The concept of inadmissibility derives from “excludability", the predecessor concept written into the Immigration and Nationality Act. “Inadmissibility" is generally used within these three (3) contexts:

  1. Denying admission to an arriving alien at a United States border

  2. Denying an alien’s I-485, Application to Adjust of Status

  3. Removal proceedings (deportation)

Denying Admission to an Alien at a United States Border

An inadmissible alien is one who is not permitted to enter the United States. At the United States border, each non-citizen/alien is essentially “scanned". The scanning process is executed by agents of Customs and Border Protection (CBP). CBP has jurisdiction and authority to render a determination as to whether an alien is “admissible", or – allowed to enter the United States. An alien’s “admission" is a very important concept to understand since, under the Immigration and Nationality Act, being “admitted" is a significant legal event.

Take the following example:

“Derek is a lawful permanent resident (green card holder). After receiving his green card, Derek is convicted of two separate shoplifting offenses. After the convictions, Derek leaves the United States to visit his parents in Canada. Upon his attempted arrival back into the United States, he is stopped by CBP agents. CBP conducts a “scan" of Derek, which reveal his two shoplifting convictions. Derek is refused admission into the United States. Derek is inadmissible."

Denying an Alien’s I-485, Application to Adjust of Status

An inadmissible alien may also be one who is not permitted to adjust status in the United States. Aliens present in the United States who submit an Application to Adjust Status on Form I-485 are also “scanned". U.S. Citizenship & Immigration Services (USCIS) executes this scan, and are one of the governmental entities maintaining authority and jurisdiction over determinations of admissibility in this type of context. Those aliens who may not adjust status are deemed “inadmissible."

Let's look at the following example:

“Maria is admitted to the United States on a B-2 “visitor visa" in 2002. In 2004, Maria is convicted of a serious drug trafficking offense. In 2011, Maria marries Samuel, a United States citizen. Sam files Form I-130, Petition for Alien Relative, on Maria’s behalf. Maria files Form I-485, Application to Adjust Status, concurrent with her husband’s petition. Maria and Sam attend their interview, but Maria’s I-485 is denied. A USCIS Officer determines that Maria is “inadmissible" for having been convicted of a drug-trafficking offense. She is thereafter placed in removal proceedings."

Removal Proceedings (Deportation)

What may be confusing about the concept of inadmissibility is that it also may be used within the context of removal proceedings (deportation). An alien before an Immigration Judge in removal proceedings charged as an inadmissible alien, generally means that:

  1. The alien should not have been allowed to enter the United States at the time he/she sought admission, or

  2. The alien should not have been allowed/is ineligible to Adjust Status

Let’s take Derek’s example and change some facts. CBP agents, instead of refusing Derek admission, allow him to enter as a "parolee". This term is another legal term of art. Derek is issued a Notice to Appear and is required to appear before the Executive Office for Immigration Review (the “Immigration Court"). Since Derek has been “paroled" into the United States, as far as the Immigration Judge is concerned, his body is still at the U.S. border (even though Derek is physically present in the U.S.). Derek will be charged as an inadmissible, arriving alien within the context of his removal proceedings. Derek is removable since he was inadmissible at the time he sought entry. Essentially, Derek must leave the United States because his shoplifting convictions render him inadmissible (remember, the Court views Derek at the U.S. border even though he is in the U.S.). Derek is likely fighting his case while in detention, as his convictions subject him to mandatory detention. Derek would not be eligible for bail.

Let’s take a look at another example of inadmissibility, this time within the context of Naturalization:?

“Tina has filed Form N-400, Application for Naturalization. Tina received lawful permanent resident status through her father’s petition. The category by which Tina received lawful status was that of an “unmarried daughter of a U.S. citizen under the age of 21". In truth, in connection with such petition, Tina had misrepresented her marital status on her Application to Adjust Status. At the time her father petitioned for her as an unmarried daughter of a USC, Tina was actually married. Tina had intentionally withheld this information to obtain a green card.

Many years later, Tina filed to naturalize and become a citizen of the United States. Filing for naturalization requires Tina to submit certificate(s) of marriage. Tina, not wanting to make any mistakes, submits her only marriage certificate. A USCIS Officer discovers that at the time Tina adjusted status, she was married and was thus – ineligible to receive lawful permanent resident. In fact, Tina should have never been issued a green card because she had intentionally misrepresented/lied about her marital status. Tina was served with an NTA and placed in removal proceedings. She was charged as an inadmissible alien.

Inadmissibility is merely one concept of immigration and nationality law. The examples illustrated above only scratch the surface of this nuanced concept. Contact an experienced immigration attorney for an in-depth consultation.

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