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The judge advocate's guide to immigration consequences for military adverse actions.

It is our responsibility under the Constitution to ensure that no criminal defendant--whether a citizen or not--is left to the "mercies of incompetent counsel. "To satisfy this responsibility, we now hold that counsel must inform her client whether his plea carries a risk of deportation. Our longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less. (1)

I. Introduction

A criminal conviction carries many consequences, and immigration consequences can be some of the most extreme. Despite acknowledging the complexity of immigration law, the U.S. Supreme Court in Padilla v. Kentucky' ruled that the Sixth Amendment requires defense counsel to advise noncitizen clients of the immigration consequences when pleading guilty. (2) In response, the Army Trial Judiciary has undertaken steps to ensure that the noncitizen accused is aware of potential immigration consequences of a plea of guilty. (3) Unfortunately, this change overlooks another class of servicemembers who may suffer immigration consequences by pleading guilty--U.S. citizens naturalized through the military. (4) In addition, other military adverse actions may impact noncitizen and military-naturalized (5) servicemembers' immigration statuses. This is often overlooked by judge advocates. (6)

This primer introduces judge advocates to the fundamentals of immigration law as it relates to servicemembers, specifically immigration consequences of military adverse actions. Whether acting as a defense counsel representing Soldiers or a trial counsel prosecuting them, it is important to be familiar with how military adverse actions can affect noncitizen and naturalized servicemembers' abilities to remain in the country they serve. Part II discusses immigration law fundamentals, covering the legal framework of how one immigrates to and is naturalized in the United States and how one may suffer immigration consequences for misconduct or undesirable acts. Part III explains potential immigration consequences that a noncitizen or naturalized servicemember may face based on military adverse actions. Lastly, Part IV guides judge advocates in how to handle military adverse actions with regard to immigration consequences.

II. Immigration Law Fundamentals

To appreciate the significance of servicemembers' immigration issues, one must understand how the United States regulates the entry and stay of noncitizens: what laws and regulations govern the immigration processes; what agencies implement and enforce them; and how one enters, immigrates, naturalizes, or is deported.

A. Historical Background and Legal Framework

Known as "a nation of immigrants," (7) the United States began its nationhood with an open border; however, it gradually restricted the immigration of certain people considered undesirables, reflecting the "xenophobia" of the time as well as concern for the potential drain on the U.S. economy. (8) In 1952, Congress overhauled the immigration system by passing the Immigration and Nationality Act (INA) of 1952, codified in Title 8 of the U.S. Code. (9) Since its passage, the INA has been amended numerous times but still provides the basic legal framework for the immigration process. (10)

Like other statutes, the INA is implemented and enforced through executive agencies that issue corresponding regulations. The main regulation implementing federal immigration law is Title 8 of the Code of Federal Regulations (CFR). (11) It promulgates the day-today functions and responsibilities of the various federal immigration agencies and provides regulatory guidance in interpreting the INA. (12)

These laws and regulations mandate civil procedural due process for immigration beneficiaries, but also possess quasi-criminal legal characteristics with regard to detaining and deporting immigration violators. (13) This mixed administrative and quasi-criminal nature is further complicated by the involvement of multiple federal departments and agencies.

B. Agencies

Historically, federal immigration authority, with the exception of visa and passport issuance authority, belonged to the Department of Justice's Immigration and Naturalization Service (INS): it provided immigration benefits, conducted border inspections, detained noncitizens for status violations, and deported them when appropriate. (14) In 2002, to strengthen the nation's security against terrorism, Congress abolished the INS and distributed the federal immigration authority across three different departments: the Department of Homeland Security (DHS), the Department of Justice (DOJ), and the Department of State (DOS). (15)

The DHS inherited most of the INS's functions--now separated between immigration benefit services and immigration enforcement. (16) The U.S. Citizenship and Immigration Services (USCIS), a DHS bureau, performs the service function, processing all immigration benefits such as permanent residency and naturalization. (17) The enforcement function is divided between two DHS agencies: the U.S. Customs and Border Protection (CBP), which inherited the INS Border Patrol's role of enforcing immigration law at the border; and the U.S. Immigration and Customs Enforcement (ICE), which investigates and enforces immigration and customs laws within U.S. borders. (18)

Though stripped of most immigration functions, the DOJ retained some. Its Executive Office for Immigration Review (EOIR) "interprets and administers federal immigration laws by conducting immigration court proceedings, appellate reviews, and administrative hearings" through its immigration judges and the Board of Immigration Appeals. (19) The DOJ also retained the enforcement function to initiate action to revoke U.S. citizenship in federal courts. (20)

The DOS, through its consulates abroad and the Office of Visa Services in D.C., holds the immigration function of issuing visas to noncitizens and passports to U.S. citizens; however, as a consequence of the 2001 Terrorist Attacks on September 11th, the DHS now oversees the DOS's consular visa processing at consulates. (21)

Working together, the three departments collaborate to enforce immigration law by administering immigration statuses. The following explains how these agencies classify people.

C. Classes of Immigration Status in the United States

To comprehend immigration law, one must also know the different immigration statuses. (22) The three (23) main categories are (1) U.S. citizens or nationals, (24) (2) immigrants, commonly referred to as lawful permanent residents (LPRs), (25) and (3) nonimmigrants. (26) Citizens of the United States are either born or naturalized. (27) Immigrants are noncitizens who are admitted to the United States with a privilege to permanently reside and work, and nonimmigrants are noncitizens temporarily admitted to the United States "for a specific purpose." (28) It is possible to change from one status to another. (29)

Outside of these categories are "illegal immigrants" or "illegal aliens," who do not have formal statuses--they are simply "unlawfully present," either by overstaying on an expired status or entering the United States without inspection and becomes an "immigration violator." (30) Immigration violators are either "inadmissible aliens," who are not qualified to enter the United States, or "deportable aliens," who are removable from the United States. (31) The United States denies entry to inadmissible aliens and removes deportable aliens, as it considers them to have potential "adverse impact on the nation's health and welfare." (32)

D. Immigration and Naturalization Process (33)

With this understanding of the immigration classifications, a judge advocate may now turn to how the United States enforces immigration law. To illustrate, this article follows a typical scenario of a foreigner seeking to enter the United States as a nonimmigrant. (34)

1. Issuance of U.S. Visa

Before a foreign national can be issued a visa, the U.S. consulate abroad must vet her visa eligibility and admissibility. Visa eligibility depends on the type of visa sought: some visas require USCIS's pre-approval, while others may be issued at the consulate's discretion. (35) To determine the admissibility of an applicant, the consulate checks the applicant's information against the Consular Lookout and Support System to see if she has committed acts that constitute inadmissible grounds under the INA. (36) If the individual is both eligible and admissible, the consulate will issue the nonimmigrant visa.

2. Admission to the United States

When a foreigner travels to the United States using a properly issued visa, the CBP inspection officer at the border determines whether the foreigner is "clearly and beyond a doubt entitled to be admitted." (37) At this stage, the officer ensures the traveler has the right documents and determines admissibility by checking the names against the Interagency Border Inspection System (IBIS) (38) "lookout" list. (39) If the officer finds the foreigner inadmissible, she may be asked to voluntarily return or be detained for removal proceeding. (40) If no issue exists, the individual is admitted to the United States as a nonimmigrant. (41)

3. Becoming a Lawful Permanent Resident

A nonimmigrant who wants to remain in the United States indefinitely will need to become a LPR. (42) However, she cannot simply receive a permanent residency solely by her intent to immigrate; an employer or family member must first sponsor the nonimmigrant for LPR status. (43) The USCIS adjudicates the U.S. sponsor's petition. Once approved, the nonimmigrant can ask the U.S. consulate to issue an immigrant visa abroad (44) (if they are not currently located within the United States) or the USCIS to adjust her status from nonimmigrant to LPR while still in the United States. (45) Then, either upon her re-entry to the United States with an immigrant visa or when the USCIS approves the adjustment, the nonimmigrant officially becomes a LPR (46)

4. Becoming a Naturalized U.S. Citizen

A LPR can live and work in the United States permanently; however, she remains subject to removal and cannot vote, sit on jury, or take a federal job (with very few exceptions). (47) To fully enjoy all the benefits of living in the United States, a LPR must become a U.S. citizen.

Generally, to naturalize, a LPR must (1) be a LPR for at least five years; (2) have been physically present in the United States at least half of that time as a LPR; (3) be a person of "good moral character" (48) for five years prior to applying for naturalization; (4) have requisite knowledge of the English language and U.S. civics; and (5) be attached to the U.S. constitutional principles. (49) Noncitizens (50) with qualifying military service are eligible for military naturalization without meeting the time or residence requirements. (51) The USCIS adjudicates naturalization by conducting a background investigation, interviewing the applicant under oath, and testing the applicant's English and civics knowledge. (52) For military naturalization, the USCIS requires a service's certification that the noncitizen is serving or has served "under honorable conditions." (53) If the USCIS determines that the applicant is fit for naturalization, she takes an oath of allegiance (54) similar to an enlistment oath and is naturalized.

5. Removal (Deportation) of a Noncitizen

When the USCIS, ICE, or CBP (55) determines a noncitizen inadmissible or deportable during any of the processes outlined above, they can initiate a proceeding to remove (56) the noncitizen from the United States. (57) The proceeding is "quasi-judicial [and] adversarial" (58) where both the DHS and the alien may be represented by counsel, and an immigration judge presides over the hearing. (59) Much like a criminal trial, a DHS agency serves a notice to the noncitizen alleging her inadmissible or deportable act(s), notifying the specific grounds for removal, and advising of the right to representation. (60) Unlike a criminal trial, however, the burden of proof depends on the noncitizen's immigration status. If the noncitizen has not been admitted (i.e., the noncitizen evades CBP inspection and enters the United States or CBP did not grant admission upon inspection), the noncitizen must prove that she is "clearly and beyond a doubt entitled to be admitted ..." (61) If the noncitizen has been admitted, the DHS must prove the noncitizen is removable by "clear and convincing evidence." (62)

During the proceeding, the immigration judge decides whether the noncitizen is removable, considers any relief from removal, and orders removal, if appropriate. (63) Either party can appeal the judge's decision to the Board of Immigration Appeals (BIA). (64) The BIA addresses both findings of fact and questions of law, providing authoritative interpretation of immigration law unless overruled by federal courts. (65) Judicial review of BIA decisions is possible, but very limited. (66)

For noncitizen criminals, the government expedites their removal in two ways--administrative removal of aggravated felons by DHS and judicial removal by federal courts. The administrative removal applies to non-LPRs and conditional permanent residents convicted of an aggravated felony; (67) the DHS can summarily deport these noncitizens without a removal proceeding upon their release from incarceration. (68) Federal judges, however, can order removal of all noncitizen criminal defendants, including LPRs, as a part of an adjudged sentence. (69) To invoke this procedure, the prosecuting U.S. Attorney must provide notice of the intent to seek judicial removal, and both the U.S. Attorney and the DHS must jointly file the grounds of deportation prior to sentencing. (70)

6. Denaturalization: Revocation of U.S. Citizenship

Though a naturalized citizen enjoys the unfettered rights of citizenship and is no longer subject to removal, she is not completely immune from immigration consequences. (71) The U.S. government can revoke naturalization, known as "denaturalization," through civil or criminal judicial revocation processes. (72) For both civil and criminal processes, the U.S. Attorney must file a revocation action with the federal district court. (73) The difference between the civil and criminal denaturalization is the required burden of proof--the U.S. Attorney must provide "clear, convincing, and unequivocal evidence" (74) for a civil revocation and evidence beyond a reasonable doubt for a criminal revocation. (75) Before the local U.S. Attorney initiates a revocation, she must consult the DOJ Civil Division's Office of Immigration Litigation. (76) Once initiated, DOJ Criminal Division's Office of Special Investigations prepares, initiates, and prosecutes the case. (77)

Though cursory, these six agency actions provide the basics of U.S. immigration framework. With this foundation, the next part discusses how LPR and military-naturalized (78) servicemembers can suffer consequences from military adverse actions.

III. Immigration Law and Servicemembers

Except in very rare situations, (79) all servicemembers must be either U.S. citizens or LPRs due to the military's enlistment or commissioning requirements. (80) Among U.S. citizens, there are three categories: (1) citizens at birth and child citizens, (2) regular-naturalized, and (3) military-naturalized. (81) Military adverse actions bear no immigration consequences to the first two citizen types. (82) As such, this section of the article focuses on the potential immigration consequences to LPR and military-naturalized servicemembers military adverse actions.

A. Servicemembers' Immigration Consequences

Though special immigration benefits for military service exist, there is very little special protection for servicemembers from immigration consequences. (83) Military-naturalized and LPR servicemembers face the same immigration consequences as civilians: a LPR servicemember may be removed based on deportable grounds or be denied naturalization for lack of good moral character or other statutory bar, and a military-naturalized servicemember may be denaturalized for receiving an other than honorable (OTH) discharge. (84)

One should note that military adverse actions do not automatically result in these immigration consequences. (85) Removal, naturalization denial, and denaturalization require federal immigration authorities to affirmatively pursue these actions.

A military adverse action may trigger these consequences when it evidences the grounds for them. Therefore, to identify the military adverse actions with immigration consequences, a judge advocate must first examine the criteria for the three consequences.

I. Removal of LPR Servicemembers

As pointed out by the Supreme Court, removal is the gravest immigration consequence a LPR servicemember can suffer. (86) A LPR servicemember becomes removable when she commits an act that constitutes a ground for removal under one of six categories. (87) Among these grounds, two grounds warrant discussion because they are the most common deportable category is used to remove foreigners (88) and military adverse actions are likely to trigger them: (a) conviction-based removal grounds; and (b) conduct-based removal grounds. (89)

a. Conviction-Based Removal Grounds

A LPR servicemember becomes removable when her qualifying criminal conviction matches an enumerated criminal offense in the INA. There are twelve enumerated offense types: crimes involving moral turpitude (CIMT); multiple CIMTs; multiple convictions resulting in more than five years sentence; aggravated felonies; drug offenses; firearm-related offenses; espionage, treason, or related security offenses; domestic violence offenses (including stalking and child abuse); sex offender registration failures; protective order violations; high speed flights from border checkpoint; and alien registration violations. (90)

Determining whether a conviction triggers removal is a complex task due to ambiguous statutory definitions, resulting in a wide breadth of case law with diverse circuit rulings. (91) Research of case law is necessary to determine whether the military adverse action is a conviction for immigration purposes. (92) If it is a conviction for immigration purposes, then one must decide whether the conviction (1) contains an element of moral turpitude, (2) matches elements of generic crimes listed as an aggravated felony, or (3) matches the other enumerated crimes in the INA. (93) If the adverse action does not qualify as a conviction, then it may still trigger conduct-based removal grounds.

b. Conduct-Based Removal Grounds

This ground for removal is triggered solely by the LPR's conduct--it is triggered when the LPR servicemember admits to conduct constituting an enumerated crime or when DHS reasonably finds that the LPR servicemember committed such a crime. Under this category, there are fourteen types of prohibited conduct: CIMT; drug abuse and trafficking; prostitution; fraud or misrepresentation; falsely claiming U.S. citizenship; alien smuggling; marriage fraud; human trafficking; money laundering; espionage, sabotage or treason; terrorism; unlawful voting; polygamy; and international child abduction. Similar to conviction-based removal, analysis of the elements of the prohibited conduct is required to determine whether the adverse action evidences the LPR servicemember having commited them. (94)

2. Naturalization Denial of LPR Servicemembers

Unlike removal, a naturalization denial does not seem as dire a consequence given that the LPR servicemember is not being removed (unless the basis of denial also triggers the removal grounds); however, due to the U.S. citizenship requirement in order to obtain a security clearance (95) and other benefits as a U.S. citizen, (96) such a consequence is detrimental. The DHS has broad authority to deny naturalization for lack of "good moral character," which is evidenced either by enumerated conduct or by the agency's discretion. (97) There are also statutory bars to naturalization: desertion from the military permanently bars one's naturalization; an OTH or punitive discharge bars one from receiving military naturalization; discharge from service due to being an alien permanently bars one from naturalizing later, and a conscientious objector discharge, even an honorable one, bars one from receiving wartime military naturalization. (98)

3. Denaturalization of Military-Naturalized Servicemembers

Like civilians or servicemembers who naturalized under regular processes, military-naturalized servicemembers can be denaturalized for illegally procuring or willfully misrepresenting facts to obtain naturalization. (99) Interestingly, there is an additional ground to denaturalize a military-naturalized servicemember--being separated from the service "under other than honorable conditions before the person has served honorably for a period or periods aggregating five years." (100) The DHS does not make an independent determination of one's service but relies on the armed force's characterization of service from the DD Form 214 to determine whether one served honorably for naturalization purposes. (101) Hence, a military-naturalized servicemember who receives a punitive discharge at a court martial or is separated with an OTH discharge may face denaturalization; however, such instance is extremely rare as there have only been two reported cases with only one resulting in denaturalization. (102)

B. Military Adverse Actions with Immigration Consequences

Given the above criteria, the following military adverse actions may have immigration consequences: (1) conviction at a general or special court-martial; (2) non-judicial punishment; and (3) administrative separation. (103)

1. Court-Martial Convictions

Just like civilian convictions, court-martial convictions may result in removal, naturalization denial, or denaturalization. Whether a court-martial conviction triggers such consequence depends on (a) the level of court-martial, (b) the substance of the crime, and (c) the possible and adjudged punishment for the crime. (104)

a. The Level of Court-Martial

For immigration purposes, a "conviction" is defined as a "formal judgment of guilt ... entered by a court" (105) and must be a result of "a trial ... whose purpose is to determine whether the accused committed a crime and which provides the constitutional safeguards normally attendant upon a criminal." (106) It is accepted that general and special court-martial convictions qualify as a "conviction" for immigration purposes. (107)

The Supreme Court has ruled that a summary court martial (SCM) is not a criminal proceeding; therefore, SCM convictions do not qualify as convictions for immigration purposes. (108) Nevertheless, SCM convictions resulting from military law enforcement investigations may raise a conduct-based removal issue or impact a naturalization because such conviction is reportable to the FBI as a criminal record. (109) The DHS may seek removal for the underlying conduct or deny naturalization for lack of good moral character based on a LPR servicemember's criminal record entry stating "[s]ubject found guilty by [SCM]." (110)

b. Substance of the Crime

As stated in Part III.A.1.a., to trigger immigration consequences, a court-martial conviction must be for certain crimes, as enumerated in the IN A. (111) The elements of crimes under Uniform Code of Military Justice (UCMJ) must be evaluated to determine whether they match those of enumerated crimes. (112) As a starting point, a judge advocate can refer to Appendix G of this article (UCMJ Offenses and Potential Immigration Consequences) for UCMJ offenses with potential immigration consequences.

c. The Possible or Adjudged Punishment

Lastly, a court-martial conviction can trigger immigration consequences based on the maximum allowable sentence or the actual sentence adjudged. (113) Researching the specific grounds for removal is essential to determine whether the ground is triggered by the possible sentence or the sentence actually adjudged. (114) Furthermore, a punitive discharge may result in a servicemember's denaturalization (though improbable)." (115)

Court-martial convictions are reported to the ICE under its Criminal Alien Program. (116) The ICE routinely seeks out noncitizens with deportable crimes while they are incarcerated in federal, state, and local prisons, and arranges to remove them upon release from incarceration. (117) Noncitizen servicemembers in military correctional facilities fall under this program--military correctional facilities cooperate with ICE by forwarding information on noncitizen prisoners who may be deportable. (118)

2. Non-Judicial Punishment

Unlike court-martial convictions, non-judicial punishment (NJP) (119) is not a "conviction" for immigration purposes and is not deemed a criminal conviction. (120) Like the SCM conviction, however, all field-grade NJPs resulting from military law enforcement investigations are reportable to the FBI. (121) The DHS may find a conduct-based removal basis or make a negative good moral character determination based on such criminal record. (122)

3. Administrative Separation

An administrative separation may result in immigration consequence depending on the characterization of service upon discharge, the underlying conduct, or a statutory requirement that bars certain immigration benefits for certain types of military discharges: An OTH discharge is a basis for denaturalization of military naturalized servicemembers; (123) a noncitizen servicemember's underlying conduct may evidence a conduct-based removal ground or a lack of good moral character; (124) and a conscientious objector discharge bars wartime military naturalization. (125)

IV. Guidance to Judge Advocates

When handling military adverse actions, judge advocates must identify these immigration consequences and competently advise their respective clients. The following provides counsel with guidelines for determining a servicemember's immigration status and more specific guidance for defense and trial counsel.

A. General Guidance

For every military adverse action, judge advocates must first ascertain the servicemember's immigration status to determine whether there are potential immigration consequences. A noncitizen servicemember is easily identified due her personnel records listing her country of citizenship (though, with any military records, subject to error). (126) To ensure accuracy, one should review the enlistment contract, which also contains citizenship information. (127) The harder task is identifying whether a person is a born or naturalized U.S. citizen, and if she is naturalized, whether naturalized under regular naturalization process or military naturalization process.

Short of asking the individual, one can distinguish U.S. citizens by using the following methods. First, the service records may contain a U.S. birth certificate (indicating U.S.-born citizenship) or naturalization certificate (indicating naturalization). Second, service records may contain certification for honorable service, indicating military naturalization. (128) Lastly, if the servicemember joined under the Military Accessions Vital to the National Interest program, the individual is a military-naturalized citizen. (129)

As immigration practice is complex, one should find an immigration law expert for consultation. In some cases, it is helpful to establish a relationship with the DHS agencies (USCIS, CBP, or ICE) and, the local U.S. Attorney's office. (130) The American Immigration Lawyers Association also has a military assistance program that assists judge advocates and servicemembers dealing with complex immigration matters. (131) Within each service's legal assistance division, there are subject matter experts as well. (132)

B. Defense Counsel

After Padilla, defense counsel are aware of the need to counsel a noncitizen accused of potential immigration consequences. (133) The fix created by the trial judiciary, however, is under-inclusive as it only applies to courts-martial and noncitizen servicemembers. Defense counsel must also advise military-naturalized servicemembers with less than five years of honorable service of the potential for denaturalization when pleading guilty to offenses with a punitive discharge potential or when being administratively separated with an OTH. (134)

For LPR servicemembers, defense counsel should not only be concerned with the conviction but also the resulting documentation of misconduct through SCM, NJP, or administrative separations that may trigger conduct-based removal. (135) By using the appendices and the statutes cited therein, counsel can identify potential immigration consequences. Also, defense counsel should tailor pretrial agreements to avoid immigration consequences. (136)

C. Government Counsel

For the government, the immigration consequences provide "significant advantage" in negotiating pretrial agreements with affected accused. (137) The accused is more likely to be cooperative to avoid possible removal. (138) When facing a LPR accused, trial counsel should review whether any of the UCMJ offenses may constitute removable grounds. For a military-naturalized accused, trial counsel should ensure that the accused is provident of potential denaturalization when pleading guilty to offenses that carry the possibility of a punitive discharge. Lastly, counsel must advise commanders to notify the ICE and DOJ Civil Division's Office of Immigration Litigation when a military-naturalized servicemember is discharged under other than honorable conditions and seek denaturalization through the local U.S. Attorney's office when warranted. (139) For the Army, regulation requires commanders to report qualifying instances to the federal immigration authorities. (140)

V. Conclusion

Likened to a Greek mythological maze, immigration law is extremely complex. (141) But in light of Padilla and the potentially devastating consequences of failing to understand the nuances in immigration law, judge advocates must be aware of the potential immigration consequences of military adverse actions. Defense counsel can no longer fail to advise LPR and military-naturalized clients of the impact an adverse action may have on their immigration status. Trial counsel must also take care to know the accused's status and the potential immigration consequences. Justice requires servicemembers be given fair notice of the consequences of their actions, but also demands such consequences be carried out when they commit acts deserving removal or denaturalization.

Appendix A

Immigration and Naturalization Process (142)

Appendix B

Inadmissibility Grounds

Health-related grounds (INA [section] 212(a)(1), 8 U.S.C. [section] 1182(a)(1))

--Possessing communicable disease of public health significance

--Failing to present documentation of having received vaccination against vaccine-preventable diseases

--Having or had a physical or mental disorder and behavior associated with the disorder that may pose, or has posed

--Being a drug abuser or addict

Criminal and related grounds (INA [section] 212(a)(2), 8 U.S.C. [section] 1182(a)(2))

--Being convicted of or admits having committed/committing acts constituting the essential elements of "a crime involving moral turpitude" or drug offense

--Being convicted of two or more offenses resulting in the aggregate sentence of five years or more

--Being or having been a drug trafficker

--Having engaged in or procured prostitution (within ten years)

--Coming to engage in unlawful commercialized vice

--Having previously asserted immunity for a serious criminal offense in the United States

--Having violated religious freedom as a foreign government official

--Committing human trafficking offenses inside or outside the United States

--Engaging in money laundering

Security and related grounds (INA [section] 212(a)(3), 8 U.S.C. [section] 1182(a)(3))

--Being a national security threat such as espionage, sabotage, export control violation, and overthrow of U.S. Government

--Engaging in or having engaged in "terrorist activity" including representing organizations promoting terrorism

--Potentially causing serious adverse consequences to U.S. foreign policy

--Having a present or past voluntary membership in Communist or totalitarian party

--Participating in Nazi persecution, genocide, torture, or extrajudicial killing

--Recruiting child soldiers

Public charge (INA [section] 212(a)(4), 8 U.S.C. [section] 1182(a)(4))

--Being likely to "become primarily dependent on government for subsistence" (143)

Labor certification and qualifications for certain immigrants (INA [section] 212(a)(5), 8 U.S.C. [section] 1182(a)(5))

--Lacking Department of Labor certification that there are no qualifying U.S. residents to perform the labor that the alien seeks to fill (for employment based immigrants)

Illegal entrants and immigration violators (INA [section] 212(a)(6), 8 U.S.C. [section] 1182(a)(6))

--Being present in the United States without being admitted or paroled

--Failing to attend removal proceeding

--Procuring immigration benefits through willful misrepresentation or fraud

--Falsely claiming U.S. citizenship

--Being a stowaway

--Smuggling other aliens into the United States illegally

--Abusing student visa status

Documentation requirements (INA [section] 212(a)(7), 8 U.S.C. [section] 1182(a)(7))

--For immigrants, not possessing valid documents for admission (e.g., unexpired immigrant visa, reentry permit, border crossing ID card, or other documents)

--For nonimmigrants, not possessing passport valid for at least six months or the proposed duration of the stay in the United States or not possessing an unexpired nonimmigrant visa

Ineligible for citizenship (INA [section] 212(a)(8), 8 U.S.C. [section] 1182(a)(8))

--Having evaded training or service in the armed forces during wartime Aliens previously removed (INA [section] 212(a)(9), 8 U.S.C. [section] 1182(a)(9))

--Having been ordered removed under removal proceedings within five (for first time removal) or twenty years (for subsequent removal) of entry

--Having been unlawfully present in the United States within three (if unlawfully present more than 180 days but less than one year) or ten years (if unlawfully present one year or more)

Miscellaneous (INA [section] 212(a)(10), 8 U.S.C. [section] 1182(a)(10))

--Practicing polygamy

--Being a guardian to an inadmissible alien who is certified as helpless

--Abducting or supporting an abduction of a child whose custody belongs to a U.S. citizen

--Unlawfully voting in a U.S. federal, state, or local election, initiative, recall, or referendum

--Having renounced U.S. citizenship to avoid taxation

Appendix C

Deportability Grounds

Violation of Immigration Law (INA [section] 237(a)(1), 8 U.S.C. [section] 1227(a)(1))

--Being inadmissible at the time of entry or adjustment of status

--Being present in the United States unlawfully

--Violating or failing to maintain one's nonimmigrant status or condition of entry

--Being terminated of conditional permanent residence

--Smuggling aliens

--Procuring one's visa through marriage fraud

Criminal offenses (INA [section] 237(a)(2), 8 U.S.C. [section] 1227(a)(2))

(A) General crimes.

--Being convicted of a "crime of moral turpitude" with a possible sentence of one year confinement or more within five years of admission

--Being convicted of "two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefore and regardless of whether the convictions were in a single trial"

--Being convicted of an "aggravated felony at any time after admission"

--Being convicted of a federal offense "relating to high speed flight from an immigration checkpoint"

--Being convicted of a federal offense for failing to register as a sex offender

(B) Controlled substances.

--Being convicted of a drug offense (federal, state, or foreign), except single possession of marijuana (less than 30 grams), any time after admission

--Being a drug abuser or addict any time after admission

(C) Certain firearm offenses.

--Being convicted of a firearms or explosives offense at any time after admission

(D) Miscellaneous crimes.

--Being convicted of any federal criminal offense relating to espionage (18 U.S.C. ch. 37), sabotage (18 U.S.C. ch. 105), treason or sedition (18 U.S.C. ch. 115) with a maximum penalty of five years or more confinement

--Being convicted of threatening the President (or his successor)(18 U.S.C. [section] 871) or invading a friendly nation (18 U.S.C. [section] 960)

--Being convicted of violating the Military Selective Service Act (144) or the Trading with the Enemy Act (145)

--Being convicted of violating travel document fraud (INA [section] 215) or importing "aliens for [an] immoral purpose" (INA [section] 278)

(E) Domestic violence crimes.

--Being convicted of "a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment"

--Violating a court-ordered protection order

(F) Human traffickers.

--Committing a human trafficking offense whether inside or outside the United States

Failure to register and falsification of documents (INA [section] 237(a)(3), 8 U.S.C. [section] 1227(a)(3))

--Failing to file change of address with USCIS

--Being convicted of falsifying registration information, violating the Alien Registration Act of 1940, the Foreign Agents Registration Act of 1938, or any federal offense relating to fraud and misuse of visas, permits, or other entry documents (18 U.S.C. [section] 1546)

--Being ordered deportable for document fraud

--Falsely claiming U.S. citizenship for any purpose or benefit

Security and related grounds (INA [section] 237(a)(4), 8 U.S.C. [section] 1227(a)(4))

--Having engaged or engaging in unlawful acts involving espionage, sabotage, export control violation, endangering public safety/national security, or overthrowing the U.S. government

--Having engaged or engaging in "terrorist activity," including representing organizations promoting terrorism

--Potentially causing serious adverse consequences to U.S. foreign policy

--Participating in Nazi persecution, genocide, torture, or extrajudicial killing

--Having violated religious freedom as a foreign government official

--Recruiting child soldiers

Public charge (INA [section] 237(a)(5), 8 U.S.C. [section] 1227(a)(5))

--Being likely to "become primarily dependent on government for subsistence" (146) Unlawful voters (INA [section] 237(a)(6), 8 U.S.C. [section] 1227(a)(6))

--Unlawfully voting in a U.S. federal, state, or local election, initiatives, recall, or referendum

Appendix D

Definition of "Crime Involving Moral Turpitude" (CIMT)

The Immigration and Nationality Act (Title 8, U.S. Code) does not define CIMT; hence, following are excerpts from relevant agencies defining CIMT for their adjudication purposes.

U.S. Department of Justice. Immigration Judge Benchbook

"[] Crimes Involving Moral Turpitude

An alien convicted of, or who admits having committed, or who admits committing acts which constitutes the essential elements of a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime is inadmissible. Section 212(a)(2)(A)(i)(I) of the [INA].

Moral turpitude refers generally to conduct which is inherently base, vile, or depraved, contrary to the accepted rules of morality and the duties owed between persons or society in general. See In re Franklin, 20 I. & N. Dec. 867, 868 (BIA 1994). Moral turpitude also has been defined as an act which is perse morally reprehensible and intrinsically wrong, or malum in se, so it is the nature of the act itself and not the statutory prohibition of it which renders a crime one of moral turpitude. See In re Torres-Varela, 23 1. & N. Dec. 78, 85 (BIA 2001); see also In re Franklin, 20 I. & N. Dec. at 868; In re Fualaau, 21 I. & N. Dec. 475 (BIA 1996). The seriousness of a criminal offense, the severity of the_sentence imposed, or the particular circumstances of the crime's commission do not determine whether the crime involves moral turpitude. In re Serna, 20 I. & N. Dec. 579, 581 (BIA 1992); In re Short, 20 I. & N. Dec. 136, 137 (BIA 1989).

To determine whether a specific crime constitutes a crime involving moral turpitude, the immigration judge may look to the language of the statute defining the crime, the specific elements of the offense, and the record of conviction. See In re Torres-Varela, 23 I. & N. Dec. at 84; In re L-V-C-, 22 I. & N. Dec. 594 (BIA 1999); In re Y-, 1 I. & N. Dec. 137 (BIA 1941). This approach is analogous to the categorical approach set forth in Taylor v. United States, 495 U.S. 575 (1990).

When a statute is divisible, that is, some of the prohibited conduct involves moral turpitude and some does not, then the judgment of conviction may be consulted to determine the nature of the underlying offense (In re Vargas, 23 I. & N. Dec. 651 (BIA 2004)) and if necessary, to authoritative court decisions in the convicting jurisdiction that elucidate the meaning of equivocal statutory language. See In re Olquin, 23 I. & N. Dec. 896, 897 n. 1 (BIA 2006). A probation report cannot be considered in making the determination. See In re Y-, 1 I. & N. Dec. 137 (BIA 1941)." (147) U.S. Department of State. Foreign Affairs Manual

"9 FAM 40.21(a) N2.1 Evaluating Moral Turpitude Based Upon Statutory Definition of Offense and U.S. Standards

To render an alien inadmissible under INA 212(a)(2)(A)(i)(I) (8 U.S.C. 1182(a)(2)(A)(i)(I)), the conviction must be for a statutory offense which involves moral turpitude. The presence of moral turpitude is determined by the nature of the statutory offense for which the alien was convicted, and not by the acts underlying the conviction. Therefore, evidence relating to the underlying act, including the testimony of the applicant, is not relevant to a determination of whether the conviction involved moral turpitude except when the statute is divisible (see 9 FAM 40.21(a) N6.2) or a political offense (see 9 FAM 40.21(a) N10). The presence of moral turpitude in a statutory offense is determined according to United States law.

9 FAM 40.21(a) N2.2 Defining 'Moral Turpitude'

Statutory definitions of crimes in the United States consist of various elements, which must be met before a conviction can be supported. Some of these elements have been determined in judicial or administrative decisions to involve moral turpitude.

A conviction for a statutory offense will involve moral turpitude if one or more of the elements of that offense have been determined to involve moral turpitude. The most common elements involving moral turpitude are:

(1) Fraud;

(2) Larceny; and

(3) Intent to harm persons or things.

9 FAM 40.21(a) N2.3 Common Crimes Involving Moral Turpitude

Categorized below are some of the more common crimes, which are considered to involve moral turpitude. Each category is followed by a separate list of related crimes, which are held not to involve moral turpitude...." (148)

Appendix E

Definition of "Aggravated Felony" in the INA

"The term 'aggravated felony' means

(A) murder, rape, or sexual abuse of a minor;

(B) illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18);

(C) illicit trafficking in firearms or destructive devices (as defined in section 921 of Title 18) or in explosive materials (as defined in section 841(c) of that title);

(D) an offense described in section 1956 of Title 18 (relating to laundering of monetary instruments) or section 1957 of that title (relating to engaging in monetary transactions in property derived from specific unlawful activity) if the amount of the funds exceeded $10,000;

(E) an offense described in

(i) section 842(h) or (i) of Title 18, or section 844(d), (e), (f), (g), (h), or (i) of that title (relating to explosive materials offenses);

(ii) section 922(g)(1), (2), (3), (4), or (5), (j), (n), (o), (p), or (r) or 924(b) or (h) of Title 18 (relating to firearms offenses); or

(iii) section 5861 of Title 26 (relating to firearms offenses);

(F) a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment [is] at least one year;

(G) a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least one year;

(H) an offense described in section 875, 876, 877, or 1202 of Title 18 (relating to the demand for or receipt of ransom);

(I) an offense described in section 2251,2251 A, or 2252 of Title 18 (relating to child pornography);

(J) an offense described in section 1962 of Title 18 (relating to racketeer influenced corrupt organizations), or an offense described in section 1084 (if it is a second or subsequent offense) or 1955 of that title (relating to gambling offenses), for which a sentence of one year imprisonment or more may be imposed;

(K) an offense that--*

(i) relates to the owning, controlling, managing, or supervising of a prostitution business;

(ii) is described in section 2421, 2422, or 2423 of Title 18 (relating to transportation for the purpose of prostitution) if committed for commercial advantage; or

(iii) is described in any of sections 1581-1585 or 1588-1591 of Title 18 (relating to peonage, slavery, involuntary servitude, and trafficking in persons);

(L) an offense described in--

(i) section 793 (relating to gathering or transmitting national defense information), 798 (relating to disclosure of classified information), 2153 (relating to sabotage) or 2381 or 2382 (relating to treason) of Title 18;

(ii) section 421 of Title 50 (relating to protecting the identity of undercover intelligence agents); or

(iii) section 421 of Title 50 (relating to protecting the identity of undercover agents);

(M) an offense that

(i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; or

(ii) is described in section 7201 of Title 26 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000;

(N) an offense described in paragraph (1)(A) or (2) of section 1324(a) of this title (relating to alien smuggling), except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien's spouse, child, or parent (and no other individual) to violate a provision of this chapter

(O) an offense described in section 1325(a) or 1326 of this title committed by an alien who was previously deported on the basis of a conviction for an offense described in another subparagraph of this paragraph;

(P) an offense (i) which either is falsely making, forging, counterfeiting, mutilating, or altering a passport or instrument in violation of section 1543 of Title 18 or is described in section 1546(a) of such title (relating to document fraud) and (ii) for which the term of imprisonment is at least 12 months, except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien's spouse, child, or parent (and no other individual) to violate a provision of this chapter;

(Q) an offense relating to a failure to appear by a defendant for service of sentence if the underlying offense is punishable by imprisonment for a term of 5 years or more;

(R) an offense relating to commercial bribery, counterfeiting, forgery, or trafficking in vehicles the identification numbers of which have been altered for which the term of imprisonment is at least one year;

(S) an offense relating to obstruction of justice, perjury or subornation of perjury, or bribery of a witness, for which the term of imprisonment is at least one year;

(T) an offense relating to a failure to appear before a court pursuant to a court order to answer to or dispose of a charge of a felony for which a sentence of 2 years' imprisonment or more may be imposed; and

(U) an attempt or conspiracy to commit an offense described in this paragraph.

The term applies to an offense described in this paragraph whether in violation of Federal or State law and applies to such an offense in violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years. Notwithstanding any other provision of law (including any effective date), the term applies regardless of whether the conviction was entered before, on, or after September 30, 1996." (149)

Appendix F

Definition of "Good Moral Character"

"(f) For the purposes of this chapter No person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established, is, or was--

(1) a habitual drunkard;

(2) Repealed.

(3) a member of one or more of the classes of persons, whether inadmissible or not, described in paragraphs (2)(D) (prostitution (procured or engaged in) and commercialized vice], (6)(E) (smuggler of unlawful immigrants), and (10)(A) (practicing polygamists| of section 1182(a) of this title; or subparagraphs (A) |convicted of or admits to committing crime involving moral turpitude or controlled substance offense] and (B) (multiple criminal convictions: convicted or two or more offenses, resulting in a sentence of five years or more confinement) of section 1182(a)(2) of this title and subparagraph (C) (controlled substance traffickers] thereof of such section (except as such paragraph relates to a single offense of simple possession of 30 grams or less of marihuana), if the offense described therein, for which such person was convicted or of which he admits the commission, was committed during such period;

(4) one whose income is derived principally from illegal gambling activities;

(5) one who has been convicted of two or more gambling offenses committed during such period;

(6) one who has given false testimony for the purpose of obtaining any benefits under this chapter;

(7) one who during such period has been confined, as a result of conviction, to a penal institution for an aggregate period of one hundred and eighty days or more, regardless of whether the offense, or offenses, for which he has been confined were committed within or without such period;

(8) one who at any time has been convicted of an aggravated felony (as defined in subsection (a)(43) of this section); (150) or

(9) one who at any time has engaged in conduct described in section 1182(a)(3)(E) of this title (relating to assistance in Nazi persecution, participation in genocide, or commission of acts of torture or extrajudicial killings) or 1182(a)(2)(G) of this title (relating to severe violations of religious freedom).

The fact that any person is not within any of the foregoing classes shall not preclude a finding that for other reasons such person is or was not of good moral character. In the case of an alien who makes a false statement or claim of citizenship, or who registers to vote or votes in a Federal, State, or local election (including an initiative, recall, or referendum) in violation of a lawful restriction of such registration or voting to citizens, if each natural parent of the alien (or, in the case of an adopted alien, each adoptive parent of the alien) is or was a citizen (whether by birth or naturalization), the alien permanently resided in the United States prior to attaining the age of 16, and the alien reasonably believed at the time of such statement, claim, or violation that he or she was a citizen, no finding that the alien is, or was, not of good moral character may be made based on it." (151)

Appendix G

UCMJ Offenses and Potential Immigration Consequences

Due to lack of case laws in determining the immigration consequences of UCMJ offenses, (152) the following chart provides the potential immigration consequences based on the statutory elements of UCMJ offenses compared to the INA's inadmissible and deportable grounds. (153) The potential immigration consequences are (1) removal, (2) naturalization denial, (154) or (3) both. (155) It should be noted that any UCMJ offense will result in naturalization denial due to lack of good moral character when the accused serves an aggregate of 180 days or more confinement within five years of naturalization application. (156) Italicized consequences are the author's opinion based on the author's application of "categorical" and "modified categorical approaches" in determining whether an offense matches the INA removal grounds. (157) Readers should consider this as a starting point to conduct full analysis before rendering legal advice on immigration consequences.

Art.      UCMJ                 Potential Immigration
          Offense              Consequences

78        Accessory            Depends on underlying
          after the            offense
          fact

80        Attempts             Depends on underlying
                               offense

81        Conspiracy           Depends on underlying
                               offense

82        Solicitation         Depends on underlying
          of                   offense--see underlying
          desertion            offenses below
          (art. 85),
          mutiny
          (art. 94),
          misbehavior
          before
          enemy
          (art. 99),
          sedition
          (art. 94)

83        Fraudulent           Removal (CIMT; not
          enlistment,          Aggravated Felony);
          appointment,         Naturalization Denial
          separation           (lack of good moral
                               character)

84        Effecting            Not CIMT; Not
          unlawful             Aggravated Felony
          enlistment,
          appointment,
          separation

85        Desertion            Not CIMT; Not
                               Aggravated Felony;
                               Naturalization
                               Denial (statutory
                               bar to
                               naturalization)

86        Absence              Not CIMT; Not
          without              Aggravated Felony
          leave

87        Missing              Not CIMT; Not
          movement             Aggravated Felony

88        Contempt             Not CIMT; Not
          toward               Aggravated Felony
          officials

89        Disrespect           Not CIMT; Not
          toward               Aggravated Felony
          superior
          commissioned
          officer

90        Assaulting           Removal (Possible
          or                   CIMT and Aggravated
          striking a           Felony)
          superior
          commissioned
          officer

          Disobeying           Depends on the
          superior             underlying lawful
91        commissioned         order Removal
          officer              (Possible CIMT and
          Strike or            Aggravated Felony)
          assault a
          warrant,
          noncommissioned,
          petty
          officer

          Willfully            Depends on the
          disobey              underlying lawful
          the lawful           order
          order of a
          warrant,
          noncommissioned,
          petty
          officer

          Contempt             Not CIMT; Not
          or                   Aggravated Felony
          disrespect
          in
          language
          or
          deportment
          toward a
          warrant,
          noncommissioned,
          petty
          officer

92        Failure to           Depends on the
          obey                 underlying lawful
          order,               general order
          regulation

93        Cruelty              Removal (Possible
          and                  CIMT, Not Aggravated
          maltreatment         Felony)
          of
          subordinates

94        Mutiny by            Removal (Aggravated
          creating             Felony,
          violence             Miscellaneous Crime,
          or                   Security related
          disturbance          grounds)

          Mutiny by            Removal (Security
          refusing             related grounds)
          to obey
          orders or
          perform
          duty

          Sedition             Removal (Aggravated
                               Felony, Miscellaneous
                               Crime, Security related
                               grounds)

          Failure to           Not CIMT; Not Security
          prevent              Related ground; Not
          and                  Aggravated Felony
          suppress a
          mutiny or
          sedition

          Failure to           Not CIMT; Not Security
          report a             Related ground; Not
          mutiny or            Aggravated Felony
          sedition

          Attempted            Removal (Miscellaneous
          mutiny               Crime)

95        Resisting            Not CIMT; Not
          apprehension         Aggravated Felony

          Flight from          Not CIMT; Not High
          apprehension         Speed Flight; Not
                               Aggravated Felony

          Breaking             Not CIMT; Not
          arrest               Aggravated Felony

          Escape               Removal (Possible
          from                 Aggravated Felony for
          custody or           obstruction but not for
          confinement          crime of violence))

96        Releasing            Not CIMT; Not
          a prisoner           Aggravated Felony
          without
          authority

97        Unlawful             Not CIMT; Not
          detention            Aggravated Felony

98        Noncompliance        Not CIMT; Not
          with                 Aggravated Felony
          procedural
          rules,
          etc.

99        Misbehavior          Not CIMT; Not
          before               Aggravated Felony
          enemy
          Subordinate
100       compelling           Not CIMT; Not security
          surrender            related ground; Not
                               Aggravated Felony

101       Improper             Not CIMT; Not security
          use of               related ground; Not
          countersign          Aggravated Felony

102       Forcing              Removal (Security
          safeguard            related ground)

103       Failing to           Not CIMT; Not
          secure               Aggravated Felony if
          public               less than $500.
          property
          taken from
          the enemy

          Failing to           Not CIMT; Not
          report and           Aggravated Felony if
          turn over            less than $500.
          captured
          or
          abandoned
          property

          Dealing in           Removal (CIMT,
          captured             Aggravated Felony)
          or
          abandoned
          property

          Looting              Removal (CIMT,
          and                  Aggravated Felony)
          Pillaging

104       Aiding the           Removal
          enemy                (Miscellaneous crime
                               ground; Aggravated Felony)

          Attempting           Removal
          to aid the           (Miscellaneous crime
          enemy                ground; Aggravated Felony)

          Harboring            Removal
          or                   (Miscellaneous crime ground)
          protecting
          the enemy

          Giving               Removal
          intelligence         (Miscellaneous crime
          to the               ground; Aggravated
          enemy                Felony; Security related
                               ground)

          Communicating        Removal (Security
          with the             related ground)
          enemy

105       Misconduct           Not CIMT; Not
          as                   Aggravated Felony
          prisoner

106       Spying               Removal
                               (Miscellaneous crime
                               ground; Aggravated
                               Felony; Security related
                               ground)

106a      Espionage            Removal
                               (Miscellaneous crime
                               ground; Aggravated
                               Felony; Security related
                               ground)

107       False                Removal (CIMT)
          Official
          Statement

108       Selling or           Removal (CIMT;
          otherwise            Aggravated Felony;
          disposing            Certain firearms
          of                   offenses)
          military
          property

          Damaging,            Removal (CIMT, Aggravated
          destroying,          Felony for damaging and
          or losing            destroying if willful)
          military
          property

          Suffering            Removal (CIMT,
          military             Aggravated Felony for
          property             damaging and
          to be                destroying if willful)
          lost,
          damaged,
          destroyed,
          sold, or
          wrongfully
          disposed
          of

109       Property             Removal (CIMT,
          other than           Aggravated Felony for
          U.S.                 damaging and destroying
          military             if willful)
          property:
          waste,
          spoilage,
          or
          destruction

110       Improper             Removal (CIMT, if
          hazarding            willful)
          of vessel

111       Wanton or            Removal (CIMT if
          reckless             physical injury
          operation            occurred)
          of
          vehicle,
          aircraft,
          or vessel

          Drunk or             Not CIMT if no injury;
          impaired             however,
          operation            possible CIMT if
          of                   physical injury occurred.
          vehicle,
          aircraft,
          or vessel

          Operation            Not CIMT if no injury;
          of                   however, possible CIMT if
          vehicle,             physical injury occurred.
          aircraft,
          or vessel
          with blood
          alcohol
          concentration
          of 0.1

112       Drunk on             Not CIMT; Not
          duty                 Aggravated Felony;
                               however, potential
                               naturalization (lack of
                               good moral character)

112a      Wrongful             Removal (Controlled
          use,                 Substance Offense)
          possession,
          manufacturing,
          or
          introduction
          of
          controlled
          substance

113       Misbehavior          Not CIMT; Not
          of                   Aggravated Felony;
          sentinel             however, possible removal
          or lookout           (security related ground)

114       Dueling              Removal (Aggravated
                               Felony)

115       Malingering          Not CIMT; Not
                               Aggravated Felony

116       Riot                 Removal (Aggravated
                               Felony)

          Breach of            Not CIMT; Not Aggravated
          Peace                Felony

117       Provoking            Not CIMT; Not
          speech,              Aggravated Felony
          gestures

118       Murder               Removal (Aggravated
                               Felony)

119       Voluntary            Removal (Aggravated
          Manslaughter         Felony)

          Involuntary          Removal (Possible CIMT)
          Manslaughter

119a      Death or             Depends on the
          injury of            underlying offense
          an Unborn            causing the death or
          Child                injury of unborn child

120       Rape                 Removal (CIMT,
                               Aggravated Felony)

          Sexual               Removal (CIMT;
          Assault              Aggravated Felony)

          Aggravated           Removal (CIMT,
          Sexual               Aggravated Felony)
          Contact

          Abusive              Removal (CIMT;
          Sexual               Aggravated Felony)
          Contact

120a      Stalking             Removal (Crime of
                               Stalking)

120b      Rape of a            Removal (CIMT,
          Child                Aggravated Felony)

          Sexual               Removal (CIMT,
          Assault of           Aggravated Felony)
          a Child

          Aggravated           Removal (CIMT,
          Sexual               Aggravated Felony)
          Contact of
          a Child

          Abusive              Removal (CIMT,
          Sexual               Aggravated Felony)
          Contact of
          a Child

120c      Indecent             Removal (C1MT)
          Viewing,
          Visual
          Recording,
          or
          Broadcasting

          Forcible             Removal (CIMT;
          Pandering            Aggravated Felony)
          Indecent
          Exposure
                               Not CIMT

121       Larceny              Removal (CIMT;
                               Aggravated Felony) unless
                               for non-military property
                               worth $500 or less

          Wrongful             Removal (Not CIMT;
          Appropriation        however, Aggravated
                               Felony for appropriating
                               motor vehicle, aircraft,
                               and vessel; certain
                               firearm offenses if
                               appropriating firearm or
                               explosive)

122       Robbery              Removal (CIMT;
                               Aggravated Felony)

123       Forgery              Removal (CIMT)

123a      Making,              Removal (CIMT) when
          drawing,             over $500
          or
          uttering
          check,
          draft, or
          order
          without
          sufficient
          funds

124       Maiming              Removal (Aggravated
                               Felony)

125       Sodomy               Removal (CIMT)

126       Arson                Removal (CIMT;
                               Aggravated Felony)

127       Extortion            Removal (Aggravated
                               Felony)

128       Simple               Not CIMT, Not
          Assault              Aggravated Felony
          (without
          firearm);
          Assault
          consummated
          by
          battery;
          Assault
          upon
          noncommissioned
          or petty
          officer
          not in
          execution
          of office

          Other                Removal (Aggravated
          Assaults             Felony; certain firearms
                               offense if firearm used)

129       Burglary             Removal (Aggravated
                               Felony)

130       Housebreaking        Removal (CIMT)- Depends
                               on underlying offense

131       Perjury              Removal (Aggravated
                               Felony)

132       Frauds               Removal (CIMT; Aggravated
          against              Felony if over $10,000)
          the United
          States

133       Conduct              Depends on the underlying
          unbecoming           misconduct--potential CIMT
          officer

134       Disorders            Depends on the
          and                  underlying conduct
          neglects
          to the
          prejudice
          of good
          order and
          discipline
          in the
          armed
          forces
          (clause 1)

          Conduct of           Depends on the
          a nature             underlying conduct
          to bring
          discredit
          upon the
          armed
          forces
          (clause 2)

          Crimes and           Depends on the underlying
          offenses             noncapital crimes and
          not                  offenses prohibited by
          capital              U.S. Code or state
          (clause 3)           criminal laws

          Abusing              Not C1MT; Not Aggravated
          public               Felony Possible CIMT; Not
          animal               lack of good moral
          Adultery             character

          Assault              Removal (CIMT; Aggravated
          with                 Felony)-- based on
          intent to            underlying conduct
          commit
          murder,
          voluntary
          manslaughter,
          rape,
          robbery,
          sodomy,
          arson,
          burglary,
          or
          housebreaking

          Bigamy               Removal (CIMT)

          Bribery              Removal (Potential
          and Graft            Aggravated Felony)

          Burning              Removal (CIMT)
          with
          intent to
          defraud

          Check                Not CIMT; Not Aggravated
          worthless,           Felony
          making and
          uttering

          Child                Removal (CIMT;
          endangerment         Crimes against
                               children)

          Child                Removal (Aggravated
          pornography          Felony; Crimes against
                               children)

          Cohabitation,        Not CIMT; Not Aggravated
          wrongful             Felony

          Correctional         Not CIMT; Not
          custody,             Aggravated Felony
          escape
          from

          Correctional         Not CIMT; Not Aggravated
          custody,             Felony
          breach of

          Debt,                Not CIMT; Not Aggravated
          dishonorably         Felony
          failing to
          pay

          Disloyal             Removal
          statements           (Miscellaneous
                               crimes--related to
                               treason and sedition)

          Disorderly           Not CIMT; Not Aggravated
          conduct              Felony

          Drunkenness          Not CIMT; Not Aggravated
          aboard               Felony; however, possible
          ship                 lack of good moral
                               character

          Drunk and            Not CIMT; Not Aggravated
          disorderly           Felony; however, possible
                               lack of good moral
                               character

          Drinking             Not CIMT; Not Aggravated
          liquor               Felony
          with
          prisoner

          Drunk                Not CIMT; Not Aggravated
          prisoner             Felony; however, possible
                               lack of good moral
                               character

          Drunkenness-         Not CIMT; Not Aggravated
          incapacitating       Felony; however, possible
          oneself              lack of good moral
          for                  character
          performance
          of duties

          Possessing           Removal (CIMT; Aggravated
          or using             Felony if over $10,000)
          with
          intent to
          defraud or
          deceive,
          or making
          altering,
          counterfeiting,
          tampering
          with, or
          selling
          military
          or
          official
          pass,
          permit,
          discharge
          certificate
          and
          identification
          card

          All other            Not CIMT; Not Aggravated
          cases                Felony

          False                Removal (CIMT; Aggravated
          pretenses,           Felony if over $10,000)
          obtaining
          services
          over $500

          False                Not CIMT; Not Aggravated
          pretenses,           Felony
          obtaining
          services
          $500 and
          under

          False                Removal (CIMT)
          swearing

          Firearm,             Removal (Certain firearm
          discharging          offense); Not CIMT; Not
          through              Aggravated Felony
          negligence

          Firearm,             Removal (Certain firearm
          discharging          offense; CIMT; Aggravated
          willfully,           Felony)
          under such
          circumstances
          as to
          endanger
          human life

          Fleeing              Removal (possible CIMT)
          scene of
          accident

          Fraternization       Not CIMT; Not
                               Aggravated Felony

          Gambling             Not CIMT; Not Aggravated
          with                 Felony; however,
          subordinate          Naturalization Denial
                               (Lack of good moral
                               character if more than
                               two gambling offenses)

          Homicide,            Not CIMT; Not Aggravated
          negligent            Felony

          Impersonation        Removal (CIMT; Aggravated
          with                 Felony if over $10,000)
          Intent to
          Defraud
          Impersonation

                               Not CIMT; Not Aggravated
                               Felony

          Indecent             Removal (Crimes against
          language,            children)
          communicated
          to child
          under the
          age of
          sixteen

          Indecent             Not CIMT; Not Aggravated
          language             Felony

          Jumping              Not CIMT; Not Aggravated
          from                 Felony
          vessel
          into the
          water

          Kidnapping           Removal (Aggravated
          Mail:                Felony)
          taking,
          opening,             Removal (Aggravated
          secreting,           Felony if stealing)
          destroying,
          or
          stealing

          Mails:               Not CIMT
          depositing
          or causing
          to be
          deposited
          obscene
          matters in

          Misprision           Removal (Possible
          of serious           CIMT)
          offense

          Obstructing          Removal (Aggravated
          justice              Felony)

          Wrongful             Depends on the underlying
          interference         conduct resulting in the
          with an              interference; potential
          adverse              Aggravated Felony.
          administrative
          proceeding

          Pandering            Removal (CIMT; Aggravated
                               Felony)

          Prostitution         Removal (CIMT)
          and
          patronizing
          a
          prostitute

          Parole,              Not CIMT; Not
          violation            Aggravated Felony
          of

          Perjury,             Removal (Aggravated
          subornation          Felony)
          of

          Public               Not CIMT; Not Aggravated
          record:              Felony
          altering,
          concealing,
          removing,
          mutilating,
          obliterating,
          or
          destroying

          Quarantine,          Not CIMT; Not Aggravated
          breaking             Felony

          Reckless             Not CIMT
          endangerment

          Restriction,         Not CIMT; Not Aggravated
          breaking             Felony

          Seizure:             Not CIMT; Not Aggravated
          destruction,         Felony
          removal,
          or
          disposal
          of
          property
          to prevent

          Self-                Not CIMT; Not
          injury               Aggravated Felony
          without
          intent to
          avoid
          service

          Sentinel             Not CIMT; Not Aggravated
          or                   Felony
          lookout,
          disrespect
          to

          Sentinel             Not CIMT; Not Aggravated
          or                   Felony
          lookout:
          Loitering
          or
          wrongfully
          sitting on
          post while
          receiving
          special
          pay

          Sentinel             Not CIMT; Not Aggravated
          or                   Felony
          lookout:
          Loitering
          or
          wrongfully
          sitting on
          post

          Soliciting           Depends on the underlying
          another to           offense
          commit an
          offense

          Straggling           Not CIMT; Not Aggravated
                               Felony

          Testify,             Removal (Aggravated
          wrongfully           Felony)
          refusing
          to

          Threat,              Removal (Possible
          bomb or              CMIT)
          hoax

          Unlawful             Not CIMT; Not Aggravated
          entry                Felony

          Weapon,              Removal (Certain
          concealed.           firearm offense)
          carrying

          Wearing              Not CIMT; Not
          unauthorized         Aggravated Felony
          insignia,
          decoration,
          badge,
          ribbon,
          device, or
          lapel
          button

Art.      UCMJ               Authority Citations
          Offense

78        Accessory          In re Rivens, 25 I. & N. Dec. 623
          after the          (BIA Oct. 19, 2011) (holding that
          fact               offense of accessory after the fact
                             is a crime involving moral turpitude
                             (CIMT) only if the underlying offense
                             is CIMT).

80        Attempts           8 U.S.C. [section][section]
                             1101(a)(43)(U), 1182(a)(2)(A)(i)(I)
                             (2012) (covering attempt of
                             Aggravated Felony and other
                             enumerated crimes).

81        Conspiracy         8 U.S.C. [section][section]
                             1101(a)(43)(U), 1182(a)(2)(A)(i)(I)
                             (covering conspiracy of Aggravated
                             Felony and enumerated crimes); In re
                             Richardson, 25 I. & N. Dec. 226 (BIA
                             Apr. 22, 2010) (holding that
                             conspiracy does not require overt
                             act). Contra United States v.
                             Gracia-Santana, No. 12-10471, 2014 WL
                             667083 (9th Cir. Feb. 20, 2014)
                             (holding that generic conspiracy
                             requires overt act).

82        Solicitation       Cf Barrage-Lopez v. Mukasey, 507 F.3d
          of                 899, 903 (9th Cir. 2007) (holding
          desertion          that CIMT determination for inchoate
          (art. 85),         crimes depends on the underlying
          mutiny             offense); cf. Rohit v. Holder, 670
          (art. 94),         F.3d. 1085, 1089-90 (9th Cir. 2012)
          misbehavior        (holding that California's conviction
          before             of solicitation for prostitution is
          enemy              CIMT because prostitution is CIMT).
          (art. 99),
          sedition
          (art. 94)

83        Fraudulent         Beiliss, supra note 91, at 58
          enlistment,        ("crimes involving a level of
          appointment,       fraud"); cf. Kariuki v. Tarango, 709
          separation         F.3d. 495 (5th Cir. 2013) (fraudulent
                             enlistment as prior bad acts for lack
                             of good moral character); no
                             corresponding crime in the definition
                             of Aggravated Felony in 8 U.S.C.
                             [section] 1101(a)(43).

84        Effecting          The offense lacks the moral turpitude
          unlawful           element for CIMT. See Beiliss, supra
          enlistment,        note 91, at 59 ("The key is to
          appointment,       identify the existence of any
          separation         knowledge or evil intent (malum in
                             se) on the part of the accused). No
                             corresponding crime in the definition
                             of Aggravated Felony in 8 U.S.C.
                             [section] 1101(a)(43).

85        Desertion          In re S--- B---, 4 I. & N. Dec. 682,
                             683 (BIA July 21, 1952) (holding
                             desertion under Articles of War is
                             not CIMT); 8 U.S.C. [section] 1425
                             (barring naturalization of deserters
                             from armed forces); Polanski v. INS,
                             No. 96 Civ. 9007, 2000 WL 869487
                             (S.D.N.Y. June 29,2000) (permanently
                             barring a Marine deserter from
                             naturalization).

86        Absence            In re Garza-Garcia, No. A77-697-333,
          without            2007 WL 3301468 (BIA Oct. 2, 2007)
          leave              ("The elements of Article 86 of the
                             [UCMJ], which include failing to
                             appear for duty, leaving a place of
                             duty, or absenting oneself from one's
                             unit, similarly do not evince a
                             manifestation of baseness and
                             depravity.").; no corresponding crime
                             in the definition of Aggravated
                             Felony in 8 U.S.C. [section]
                             1101(a)(43).

87        Missing            Akin to UCMJ art. 86, the offense
          movement           lacks the moral turpitude element for
                             CIMT. See Beiliss, supra note 91, at
                             59 ("The key is to identify the
                             existence of any knowledge or evil
                             intent (malum in se) on the part of
                             the accused). No corresponding crime
                             in the definition of Aggravated
                             Felony in 8 U.S.C. [section]
                             1101(a)(43).

88        Contempt           Cf. Fernandez-Ruiz v. Gonzales, 468
          toward             F.3d 1159 (9th Cir. 2006) (holding
          officials          the act of insulting or provoking as
                             "undesirable or unacceptable but ...
                             [does] not constitute baseness or
                             depravity contrary to accepted moral
                             standard'"). The offense lacks the
                             moral turpitude element for CIMT. See
                             Beiliss, supra note 91, at 59 ("The
                             key is to identify the existence of
                             any knowledge or evil intent (malum
                             in se) on the part of the accused").
                             No corresponding crime in the
                             definition of Aggravated Felony in 8
                             U.S.C. [section] 1101 (a)(43).

89        Disrespect         Cf. Fernandez-Ruiz v. Gonzales, 468
          toward             F.3d 1159 (9th Cir. 2006) (holding
          superior           the act of insulting or provoking as
          commissioned       "undesirable or unacceptable but ...
          officer            [does] not constitute baseness or
                             depravity contrary to accepted moral
                             standard'"). The offense lacks the
                             moral turpitude element for CIMT. See
                             Beiliss, supra note 91, at 59 ("The
                             key is to identify the existence of
                             any knowledge or evil intent (malum
                             in se) on the part of the accused").
                             No corresponding crime in the
                             definition of Aggravated Felony in 8
                             U.S.C. [section] 1101 (a)(43).

90        Assaulting         Beiliss, supra note 91, at 59 (crimes
          or                 against the person as CIMT). Contra
          striking a         Uppal v. Holder, 605 F.3d 712 (9th
          superior           Cir. 2010) (holding Canadian's
          commissioned       aggravated assault not CIMT); Partyka
          officer            v. U.S. Attorney Gen., 417 F.3d 408
                             (3d Cir. 2005) (holding NJ's offense
                             of aggravated assault against police
                             officer not CIMT). 8 U.S.C.
                             [section][section] 1101 (a)(43)(F),
                             1227(a)(2)(A)(iii) ("a crime of
                             violence" with possible confinement
                             more than one year as Aggravated
                             Felony).

          Disobeying         Cf. Aguilar-Turcios v. Holder, 740
          superior           F.3d 1294 (9th Cir. 2014) (holding
91        commissioned       order violation depends on the
          officer            underlying order.). Beiliss, supra
          Strike or          note 91, at 59 (crimes against the
          assault a          person as CIMT). Contra Uppal v.
          warrant,           Holder, 605 F.3d 712 (9th Cir. 2010)
          noncommissioned,   (holding Canadian's aggravated
          petty              assault not CIMT); Partyka v. U.S.
          officer            Attorney Gen.. 417 F.3d 408 (3d Cir.
                             2005) (holding NJ's offense of
                             aggravated assault against police
                             officer not CIMT). 8 U.S.C.
                             [section][section] 1101(a)(43)(F),
                             1227(a)(2)(A)(iii) ("a crime of
                             violence" with possible confinement
                             more than one year as Aggravated
                             Felony).

          Willfully          Beiliss, supra note 91, at 59 (crimes
          disobey            against the person as CIMT). Contra.
          the lawful         Uppal v. Holder, 605 F.3d 712 (9th
          order of a         Cir. 2010) (holding Canadian offense
          warrant,           of aggravated assault not CIMT);
          noncommissioned,   Partyka v. U.S. Attorney Gen., 417
          petty              F.3d 408 (3d Cir. 2005) (holding NJ's
          officer            aggravated assault against police
                             officer not CIMT). 8 U.S.C.
                             [section][section] 1101 (a)(43)(F),
                             1227(a)(2)(A)(iii) ("a crime of
                             violence" with possible confinement
                             more than one year as Aggravated
                             Felony).

          Contempt           Maximum allowable confinement is less
          or                 than a year. Cf. Femandez-Ruiz v.
          disrespect         Gonzales, 468 F.3d 1159 (9th Cir.
          in                 2006) (holding the act of insulting
          language           or provoking as "undesirable or
          or                 unacceptable but. .. [does] not
          deportment         constitute 'baseness or depravity
          toward a           contrary to accepted moral
          warrant,           standard'").
          noncommissioned,
          petty
          officer

92        Failure to         Aguilar-Turcios v. Holder, 740 F.3d
          obey               1294 (9th Cir. 2014) (holding access
          order,             to child porn on government computer
          regulation         in violation of UCMJ art. 92 is not
                             aggravated felony because the general
                             order prohibited pornography in
                             general).

93        Cruelty            Beiliss, supra note 91, at 59 (crimes
          and                against the person as CIMT); no
          maltreatment       corresponding crime in the definition
          of                 of Aggravated Felony in 8 U.S.C.
          subordinates       [section] 1101 (a)(43) (not "crime of
                             violence" as no element of violence
                             in the art. 93, UCMJ).

94        Mutiny by          8 U.S.C. [section][section]
          creating           1101(a)(43)(F), 1227(a)(2)(A)(iii)
          violence           ("a crime of violence" with possible
          or                 confinement more than one year as
          disturbance        Aggravated Felony); [section]
                             1227(a)(2)(D)(i) (violating 18 U.S.C.
                             [section][section] 2383 (Rebellion
                             and Insurrection), 2384 (Seditious
                             Conspiracy), 2387 (activities
                             affecting armed forces generally),
                             2388 (activities affecting armed
                             forces during war)); [section]
                             1227(a)(4)(A)(ii) ("any other
                             criminal activity which endangers
                             public safety or national security");
                             [section] 1227(a)(4)(A)(iii) ("any
                             activity a purpose of which is the
                             opposition to, or the control or
                             overthrow of, the Government of the
                             United States by force, violence, or
                             other unlawful means.).

          Mutiny by          8 U.S.C. [section] 1227(a)(4)(A)(ii)
          refusing           ("any other criminal activity which
          to obey            endangers public safety or national
          orders or          security"); [section]
          perform            1227(a)(4)(A)(iii) ("any activity a
          duty               purpose of which is the opposition
                             to, or the control or overthrow of,
                             the Government of the United States
                             by force, violence, or other unlawful
                             means.).

          Sedition           8 U.S.C. [section][section]
                             1101(a)(43)(F), 1227(a)(2)(A)(iii)
                             ("a crime of violence" with possible
                             confinement more than one year as
                             Aggravated Felony); [section]
                             1227(a)(2)(D)(i) (violating 18 U.S.C.
                             [section][section] 2383 (Rebellion
                             and Insurrection), 2384 (Seditious
                             Conspiracy), 2387 (activities
                             affecting armed forces generally),
                             2388 (activities affecting armed
                             forces during war)); [section]
                             1227(a)(4)(A)(ii) ("any other
                             criminal activity which endangers
                             public safety or national security");
                             [section] 1227(a)(4)(A)(iii) ("any
                             activity a purpose of which is the
                             opposition to, or the control or
                             overthrow of, the Government of the
                             United States by force, violence, or
                             other unlawful means.).

          Failure to         The offense lacks the moral turpitude
          prevent            element for CIMT or a security
          and                related offense. See Beiliss, supra
          suppress a         note 91, at 59 ("The key is to
          mutiny or          identify the existence of any
          sedition           knowledge or evil intent (malum in
                             se) on the part of the accused"). No
                             corresponding crime in the definition
                             of Aggravated Felony in 8 U.S.C.
                             [section] 1101 (a)(43).

          Failure to         The offense lacks the moral turpitude
          report a           element for CIMT or a security
          mutiny or          related offense. See Beiliss, supra
          sedition           note 91, at 59 ("The key is to
                             identify the existence of any
                             knowledge or evil intent (malum in
                             se) on the part of the accused"). No
                             corresponding crime in the definition
                             of Aggravated Felony in 8 U.S.C.
                             [section] 1101 (a)(43).

          Attempted          8 U.S.C. [section] 1227(a)(2)(D)(i)
          mutiny             (attempting to violate 18 U.S.C.
                             [section][section] 2383 (Rebellion
                             and Insurrection), 2384 (Seditious
                             Conspiracy), 2387 (activities
                             affecting armed forces generally),
                             2388 (activities affecting armed
                             forces during war)).

95        Resisting          The offense lacks the moral turpitude
          apprehension       element for CIMT. See Beiliss, supra
                             note 91, at 59 ("The key is to
                             identify the existence of any
                             knowledge or evil intent (malum in
                             se) on the part of the accused"). No
                             corresponding crime in the definition
                             of Aggravated Felony in 8 U.S.C.
                             [section] 1101 (a)(43). Cf. United
                             States v. Aparicio-Soria, 740 F.3d
                             152 (4th Cir. 2013) (resisting arrest
                             not a "crime of violence" for U.S.
                             sentence guidelines).

          Flight from        Elements lack the moral turpitude
          apprehension       element for CIMT and UCMJ art. 95
                             elements are too broad for High Speed
                             Flight; not aggravated felony because
                             not "crime of violence." Cf. United
                             States v. Aparicio-Soria, 740 F.3d
                             152 (4th Cir. 2013) (resisting arrest
                             not a "crime of violence" for U.S.
                             sentence guidelines).

          Breaking           Elements lack the moral turpitude
          arrest             element for CIMT and UCMJ art. 95
                             elements are too broad for High Speed
                             Flight; not aggravated felony because
                             less than one year confinement.

          Escape             8 U.S.C. [section][section] 1101
          from               (a)(43)(S), 1227(a)(2)(A)(iii)
          custody or         (obstructing justice as Aggravated
          confinement        Felony); United States v. Draper, 996
                             F.2d 982 (9th Cir. 1993) (holding
                             escape from custody as obstruction of
                             justice for U.S. sentence
                             guidelines). Contra In re
                             Duran-Morales, No. A41-777-177, 2008
                             WL 1924674 (BIA Apr. 10, 2008)
                             (holding escape not obstruction of
                             justice under Aggravated Felony);
                             Addo v. U.S. Attorney Gen., 355
                             F.App'x. 672 (3d Cir. 2009) (holding
                             escape conviction was not "crime of
                             violence" and not Aggravated Felony).

96        Releasing          The offense lacks the moral turpitude
          a prisoner         element for CIMT. See Beiliss, supra
          without            note 91, at 59 ("The key is to
          authority          identify the existence of any
                             knowledge or evil intent (malum in
                             se) on the part of the accused"). No
                             corresponding crime in the definition
                             of Aggravated Felony in 8 U.S.C.
                             [section] 1101 (a)(43).

97        Unlawful           The offense lacks the moral turpitude
          detention          element for CIMT. See Beiliss, supra
                             note 91, at 59 ("The key is to
                             identify the existence of any
                             knowledge or evil intent (malum in
                             se) on the part of the accused"). No
                             corresponding crime in the definition
                             of Aggravated Felony in 8 U.S.C.
                             [section] 1101(a)(43).

98        Noncompliance      The offense lacks the moral turpitude
          with               element for CIMT. See Beiliss, supra
          procedural         note 91, at 59 ("The key is to
          rules,             identify the existence of any
          etc.               knowledge or evil intent (malum in
                             se) on the part of the accused"). No
                             corresponding crime in the definition
                             of Aggravated Felony in 8 U.S.C.
                             [section] 1101 (a)(43).

99        Misbehavior        The offense lacks the moral turpitude
          before             element for CIMT. See Beiliss, supra
          enemy              note 91, at 59 ("The key is to
          Subordinate        identify the existence of any
100       compelling         knowledge or evil intent (malum in
          surrender          se) on the part of the accused"). No
                             corresponding crime in the definition
                             of Aggravated Felony in 8 U.S.C.
                             [section] 1101(a)(43). The offense
                             lacks the moral turpitude element for
                             CIMT or a security related offense.
                             See Beiliss, supra note 91, at 59
                             ("The key is to identify the
                             existence of any knowledge or evil
                             intent (malum in se) on the part of
                             the accused"). No corresponding crime
                             in the definition of Aggravated
                             Felony in 8 U.S.C. [section] 1101
                             (a)(43).

101       Improper           The offense lacks the moral turpitude
          use of             element for CIMT or a security
          countersign        related offense. See Beiliss, supra
                             note 91, at 59 ("The key is to
                             identify the existence of any
                             knowledge or evil intent (malum in
                             se) on the part of the accused"). No
                             corresponding crime in the definition
                             of Aggravated Felony in 8 U.S.C.
                             [section] 1101(a)(43).

102       Forcing            8 U.S.C. [section] 1227(a)(4)(A)(ii)
          safeguard          ("any other criminal activity which
                             endangers public safety or national
                             security").

103       Failing to         The offense lacks the moral turpitude
          secure             element for CIMT. See Beiliss, supra
          public             note 91, at 59 ("The key is to
          property           identify the existence of any
          taken from         knowledge or evil intent (malum in
          the enemy          se) on the part of the accused). No
                             corresponding crime in the definition
                             of Aggravated Felony in 8 U.S.C.
                             [section] 1101(a)(43).

          Failing to         The offense lacks the moral turpitude
          report and         element for CIMT. See Beiliss, supra
          turn over          note 91, at 59 ("The key is to
          captured           identify the existence of any
          or                 knowledge or evil intent (malum in
          abandoned          se) on the part of the accused). No
          property           corresponding crime in the definition
                             of Aggravated Felony in 8 U.S.C.
                             [section] 1101 (a)(43).

          Dealing in         Beiliss, supra note 91, at 58
          captured           ("crimes against property" as CIMT
          or                 and "theft crimes" as aggravated
          abandoned          felony); 8 U.S.C. [section]
          property           1101(a)(43)(G) (a theft offense with
                             imprisonment of one year or more as
                             Aggravated Felony).

          Looting            Beiliss, supra note 91, at 58
          and                ("crimes against property" as CIMT
          Pillaging          and "theft crimes" as aggravated
                             felony); 8 U.S.C. [section]
                             1101(a)(43)(G) (a theft offense with
                             imprisonment of one year or more as
                             Aggravated Felony).

104       Aiding the         8 U.S.C. [section][section]
          enemy              1101(a)(43)(L)(i), 1227(a)(2)(A)(iii)
                             (violating treason, 18 U.S.C.
                             [section] 2382, as Aggravated
                             Felony); [section] 1227(a)(3)(D)(i)
                             (violating treason under chapter 115
                             of Title 18).

          Attempting         8 U.S.C. [section][section]1101
          to aid the         (a)(43)(U), 1227(a)(2)(A)(iii)
          enemy              (covering attempts of Aggravated
                             Felony).

          Harboring          8 U.S.C. [section] 1227(a)(3)(D)(i))
          or                 (violating Harboring or concealing
          protecting         person, 18 U.S.C. [section] 792,
          the enemy          under chapter 37 of Title 18).

          Giving             8 U.S.C. [section][section] 1101
          intelligence       (a)(43)(L)(i), 1227(a)(2)(A)(iii)
          to the             (violating 18 U.S.C. [section] 793
          enemy              (gathering, transmitting or losing
                             defense information) as Aggravated
                             Felony); [section] 1227(a)(3)(D)(i)
                             (violating [section] 793 under
                             chapter 37 of Title 18); [section]
                             1227(a)(4(A)(i) ("any activity to
                             violate any law of the United States
                             relating to espionage").

          Communicating      8 U.S.C. [section] 1227(a)(4(A)(i)
          with the           ("any activity to violate any law of
          enemy              the United States relating to
                             espionage").

105       Misconduct         The offense lacks the moral turpitude
          as                 element for CIMT. See Beiliss, supra
          prisoner           note 91, at 59 ("The key is to
                             identify the existence of any
                             knowledge or evil intent (malum in
                             se) on the part of the accused"). No
                             corresponding crime in the definition
                             of Aggravated Felony in 8 U.S.C.
                             [section] 1101 (a)(43).

106       Spying             8 U.S.C. [section][section] 1101
                             (a)(43)(L)(i), 1227(a)(2)(A)(iii)
                             (violating 18 U.S.C. [section] 793
                             (gathering, transmitting or losing
                             defense information) as Aggravated
                             Felony); [section] 1227(a)(3)(D)(i)
                             (violating [section] 793 under
                             chapter 37 of Title 18); [section]
                             1227(a)(4(A)(i) ("any activity to
                             violate any law of the United States
                             relating to espionage").

106a      Espionage          8 U.S.C. [section][section] 1101
                             (a)(43)(L)(i), 1227(a)(2)(A)(iii)
                             (violating 18 U.S.C. [section] 793
                             (gathering, transmitting or losing
                             defense information) as Aggravated
                             Felony); [section] 1227(a)(3)(D)(i)
                             (violating [section] 793 and
                             [section] 794 under chapter 37 of
                             Title 18); [section] 1227(a)(4(A)(i)
                             ("any activity to violate any law of
                             the United States relating to
                             espionage").

107       False              Cf. In re Chavez-Alvarez, 26 I. & N.
          Official           Dec. 274 (BIA Mar. 14, 2014) (noting
          Statement          in dicta that immigration judge found
                             general court-martial conviction of
                             UCMJ art. 107 as CIMT); Itani v.
                             Ashcroft, 298 F.3d 1213 (11th Cir.
                             2002) (quoting United States v.
                             Gloria, 494 F.2d 477,481 (5th Cir.
                             1974) ("Generally, a crime involving
                             dishonesty or false statement is
                             considered to be one involving moral
                             turpitude."); Beiliss, supra note 91,
                             at 58 (crimes involving a level of
                             fraud as CIMT).

108       Selling or         Beiliss, supra note 91, at 58
          otherwise          ("crimes against property" as CIMT
          disposing          and "theft crimes" as aggravated
          of                 felony); 8 U.S.C. [section]
          military           1227(a)(2)(C) (selling firearm or
          property           destructive device as deportable
                             crime).

          Damaging,          8 U.S.C. [section][section] 1101
          destroying,        (a)(43)(L)(i), 1227(a)(2)(A)(iii)
          or losing          (violating 18 U.S.C. [section] 2153
          military           (destruction of war materials, war
          property           premises, or war utilities) as
                             Aggravated Felony); cf. In re M-----,
                             21. & N. 629 (BIA June 18, 1946)
                             (holding that respondent damaging war
                             supply ship in violation of 50 U.S.C.
                             [section] 102 (impairing war
                             material) (repealed 1948) as CIMT);
                             cf. In re Escobedo-Gutierrez, No.
                             A78-103-729, 2008 WL 3919068 (BIA
                             July 24, 2008) (holding that GA's
                             offense of interference with
                             government property as Aggravated
                             Felony because of the use of physical
                             force); Beiliss, supra note 91, at 58
                             ("crimes against property" as CIMT
                             and "theft crimes" as Aggravated
                             Felony).

          Suffering          8 U.S.C. [section][section] 1101
          military           (a)(43)(L)(i), 1227(a)(2)(A)(iii)
          property           (violating 18 U.S.C. [section] 2153
          to be              (destruction of war materials, war
          lost,              premises, or war utilities) as
          damaged,           Aggravated Felony); cf. In re M....,
          destroyed,         2 I. & N. 629 (BIA June 18, 1946)
          sold, or           (holding that respondent damaging war
          wrongfully         supply ship in violation of 50 U.S.C.
          disposed           [section] 102 (impairing war
          of                 material) as CIMT); Beiliss, supra
                             note 91, at 58 ("crimes against
                             property" as CIMT and "theft crimes"
                             as aggravated felony).

109       Property           Beiliss, supra note 91, at 58
          other than         ("crimes against property" as CIMT
          U.S.               and "theft crimes" as Aggravated
          military           Felony).
          property:
          waste,
          spoilage,
          or
          destruction

110       Improper           8 U.S.C. [section][section] 1101
          hazarding          (a)(43)(L)(i), 1227(a)(2)(A)(iii)
          of vessel          (violating 18 U.S.C. [section] 2153
                             (destruction of war materials, war
                             premises, or war utilities) as
                             Aggravated Felony); cf. In re M---, 2
                             I. & N. 629 (BIA June 18, 1946)
                             (holding that respondent damaging war
                             supply ship in violation of 50 U.S.C.
                             [section] 102 (impairing war
                             material) as CIMT).

111       Wanton or          Cf. Keunge v. U.S. Attorney Gen., 561
          reckless           F.3d. 1281, 1285-86 (11th Cir. 2009)
          operation          (quoting Knapik v. Ashcroft, 384 F.3d
          of                 84, 90 n.5 (3d Cir. 2004)) ("With
          vehicle,           regard to reckless acts, moral
          aircraft,          turpitude inheres in the conscious
          or vessel          disregard of a substantial and
                             unjustifiable risk of severe harm or
                             death.").

          Drunk or           Cf. In re Lopez-Meza, 22 I. & N. Dec.
          impaired           1188, 1194 (B1A 1999) ("Simple
          operation          [driving under influence] is
          of                 ordinarily a regulatory offense that
          vehicle,           involves no culpable mental state
          aircraft,          requirement, such as intent or
          or vessel          knowledge.... [A] simple DU1 offense
                             does not inherently involve moral
                             turpitude."); cf. Padilla v.
                             Kentucky, 559 U.S. 356, 379 (2010)
                             (Alito, J., concurring) (citing R.
                             McWhirter, Am. Bar Assoc., The
                             Criminal Lawyer's Guide to
                             Immigration Law 136 (2d ed. 2006)
                             ("[DUI] may be a CIMT if the DUI
                             results in injury....").

          Operation          Cf. In re Lopez-Meza, 22 I. & N. Dec.
          of                 1188, 1194 (BIA 1999) ("Simple
          vehicle,           [driving under influence] is
          aircraft,          ordinarily a regulatory offense that
          or vessel          involves no culpable mental state
          with blood         requirement, such as intent or
          alcohol            knowledge.... [A] simple DUI offense
          concentration      does not inherently involve moral
          of 0.1             turpitude."); cf. Padilla v.
                             Kentucky, 559 U.S. 356, 379 (Alito,
                             J., concurring) (citing R. McWhirter,
                             Am. Bar Assoc., The Criminal Lawyer's
                             Guide to Immigration Law 136 (2d ed.
                             2006) ("[DUI] may be a CIMT if the
                             DUI results in injury----").

112       Drunk on           The offense lacks the moral turpitude
          duty               element for CIMT; no corresponding
                             crime in the definition of Aggravated
                             Felony in 8 U.S.C. [section] 1101
                             (a)(43); lack of good moral character
                             due to "habitual drunkard." Id.
                             [section] 1101(f)(1).

112a      Wrongful           8 U.S.C. [section] 1227(a)(2)(B)
          use,               (violating any law or regulation
          possession,        relating to controlled substance,
          manufacturing,     other than single marijuana use (less
          or                 than thirty grams), is deportable
          introduction       crime).
          of
          controlled
          substance

113       Misbehavior        The offense lacks the moral turpitude
          of                 element for CIMT; no corresponding
          sentinel           crime in the definition of Aggravated
          or lookout         Felony in 8 U.S.C. [section] 1101
                             (a)(43); [section] 1227(a)(4)(A)(ii)
                             ("any other criminal activity which
                             endangers public safety or national
                             security").

114       Dueling            8 U.S.C. [section][section] 1101
                             (a)(43)(F), 1227(a)(2)(A)(iii)
                             (incorporating "crime of violence"
                             under 18 U.S.C. [section] 16 as
                             Aggravated Felony). 18 U.S.C.
                             [section] 16 states, "an offense that
                             has as an element the use, attempted
                             use, or threatened use of physical
                             force against the person or property
                             of another, or ... any other
                             offense that is a felony and that, by
                             its nature, involves a substantial
                             risk that physical force against the
                             person or property of another may be
                             used in the course of committing the
                             offense."

115       Malingering        The offense lacks the moral turpitude
                             element for CIMT or security related
                             offense. See Beiliss, supra note 91,
                             at 59 ("The key is to identify the
                             existence of any knowledge or evil
                             intent (malum in se) on the part of
                             the accused"). No corresponding crime
                             in the definition of Aggravated
                             Felony in 8 U.S.C. [section] 1101
                             (a)(43).

116       Riot               Cf United States v.
                             Hernandez-Rodriguez, 388 F.3d 779
                             (10th Cir. 2004) (holding Utah riot
                             conviction as Aggravated Felony).

          Breach of          Maximum allowable confinement is less
          Peace              than a year.

117       Provoking          Maximum allowable confinement is less
          speech,            than a year. Cf. Femandez-Ruiz v.
          gestures           Gonzales, 468 F.3d 1159 (9th Cir.
                             2006) (holding the act of insulting
                             or provoking as "undesirable or
                             unacceptable but ... [does] not
                             constitute 'baseness or depravity
                             contrary to accepted moral
                             standard'").

118       Murder             8 U.S.C. [section][section] 1101
                             (a)(43)(A), 1227(a)(2)(A)(iii)
                             (designating "murder" as Aggravated
                             Felony).

119       Voluntary          8 U.S.C. [section][section] 1101
          Manslaughter       (a)(43)(F), 1227(a)(2)(A)(iii)
                             (incorporating "crime of violence"
                             under 18 U.S.C. [section] 16 as
                             Aggravated Felony).

          Involuntary        Cf. Franklin v. INS, 72 F.3d 571 (8th
          Manslaughter       Cir. 1995) (holding involuntary
                             manslaughter as CIMT). But see In re
                             Ghunaim, 15 I. & N. Dec. 269, 270
                             (BIA 1975) (quoting In re Lopez, 13
                             I. & N. Dec. 725 (BIA 1971) ("Murder
                             and voluntary manslaughter are
                             [CIMT]; involuntary manslaughter is
                             not.").

119a      Death or           UCMJ art. 119a requires the proof of
          injury of          commission of certain UCMJ offenses
          an Unborn          causing the death or injury of the
          Child              unborn child, or attempt thereof. 18
                             U.S.C. [section] 1841 recognizes
                             unborn child as a human being.

120       Rape               8 U.S.C. [section][section] 1101
                             (a)(43)(A), 1227(a)(2)(A)(iii)
                             (designating "rape" as Aggravated
                             Felony); Nunez v. Holder, 594 F.3d
                             1124 (9th Cir. 2010) ("[R]ape is
                             categorically a crime of moral
                             turpitude.").

          Sexual             8 U.S.C. [section][section] 1101
          Assault            (a)(43)(F), 1227(a)(2)(A)(iii)
                             (incorporating "crime of violence"
                             under 18 U.S.C. [section] 16 as
                             Aggravated Felony); Beiliss, supra
                             note 91, at 58 ("crimes against
                             person" as CIMT).

          Aggravated         8 U.S.C. [section][section] 1101
          Sexual             (a)(43)(F). 1227(a)(2)(A)(iii)
          Contact            (incorporating "crime of violence"
                             under 18 U.S.C. [section] 16 as
                             Aggravated Felony); Beiliss, supra
                             note 91, at 58 ("crimes against
                             person" as CIMT).

          Abusive            8 U.S.C. [section][section] 1101
          Sexual             (a)(43)(F), 1227(a)(2)(A)(iii)
          Contact            (incorporating "crime of violence"
                             under 18 U.S.C. [section] 16 as
                             Aggravated Felony); Beiliss, supra
                             note 91, at 58 ("crimes against
                             person" as CIMT).

120a      Stalking           8 U.S.C. [section] 1227(2)(E)(i)
                             (designating stalking deportable
                             crime).

120b      Rape of a          8 U.S.C. [section][section]
          Child              1101(a)(43)(A), 1227(a)(2)(A)(iii)
                             (designating "rape" as Aggravated
                             Felony); Beiliss, supra note 91, at
                             58 ("crimes against person" as CIMT).

          Sexual             8 U.S.C. [section][section] 1101
          Assault of         (a)(43)(A), 1227(a)(2)(A)(iii)
          a Child            (designating "sexual abuse of a
                             minor" as Aggravated Felony);
                             Beiliss, supra note 91, at 58
                             ("crimes against person" as CIMT).

          Aggravated         8 U.S.C. [section][section] 1
          Sexual             l01(a)(43)(A), 1227(a)(2)(A)(iii)
          Contact of         (designating "sexual abuse of a
          a Child            minor" as Aggravated Felony);
                             Beiliss, supra note 91, at 58
                             ("crimes against person" as CIMT).

          Abusive            8 U.S.C. [section][section] 1
          Sexual             l01(a)(43)(A), 1227(a)(2)(A)(iii)
          Contact of         (designating "sexual abuse of a
          a Child            minor" as Aggravated Felony);
                             Beiliss, supra note 91, at 58
                             ("crimes against person" as CIMT).

120c      Indecent           Beiliss, supra note 91, at 58
          Viewing,           ("crimes against person" as CIMT).
          Visual
          Recording,
          or
          Broadcasting

          Forcible           Cf Rohit v. Holder, 670 F.3d 1085,
          Pandering          1089-90 (9th Cir. 2012) (holding
          Indecent           solicitation of prostitution as CIMT
          Exposure           because no less vile than engaging in
                             prostitution which is CIMT); 8 U.S.C.
                             [section][section] 1101(a)(43)(K(i)),
                             1227(a)(2)(A)(iii) (designating
                             "offense that ... relates to the
                             owning, controlling, managing, or
                             supervising of a prostitution
                             business" as Aggravated Felony). Cf.
                             Nunez v. Holder, 594 F.3d 1124 (9th
                             Cir. 2010) (holding that California's
                             indecent exposure conviction is not
                             "inherently base, vile, and
                             depraved").

121       Larceny            Cf. Lecky v. Holder, 723 F.3d 1 (1st
                             Cir. 2013) (holding that
                             Connecticut's larceny conviction is
                             Aggravated Felony under 8 U.S.C.
                             [section] 1101(a)(43)(G) ("theft
                             offense")).

          Wrongful           Cf. Wala v. Mukasey, 511 F.3d 102 (2d
          Appropriation      Cir. 2007) (remanding BIA's ruling
                             that larceny was CIMT because failed
                             to determine whether the taking was
                             permanent or temporary); cf. In re
                             Grazley, 14 I. & N. Dec. 330, 333
                             (BIA 1973) ("[A] conviction for theft
                             is considered to involve moral
                             turpitude only when a permanent
                             taking is intended."); cf. In re R---,
                             2 I. & N. Dec. 819, 828 (BIA 1947)
                             ("It is settled law that the offense
                             of taking property temporarily does
                             not involve moral turpitude."); cf.
                             Artega v. Mukasey, 511 F.3d 940, 947
                             (9th Cir. 2007) (holding unlawfully
                             taking a vehicle with the intent to
                             either permanently or temporarily
                             deprive the owner of possession is a
                             theft offense and an Aggravated
                             Felony); 8 U.S.C. [section]
                             1227(2)(C) (Certain firearm offense)
                             ("Any alien who ... is convicted
                             under any law of ... possessing ...
                             any weapon ... which is a firearm
                             ... is deportable.").

122       Robbery            Cf. Medonza v. Holder, 623 F.3d 1299
                             (9th Cir. 2010) (holding that
                             California's robbery conviction is
                             CIMT); 8 U.S.C. [section][section]
                             1101(a)(43)(F), 1227(a)(2)(A)(iii)
                             (incorporating "crime of violence"
                             under 18 U.S.C. [section] 16 as
                             Aggravated Felony).

123       Forgery            Cf. Cetik v. Gonzales, 181 F.App'x
                             117 (2d Cir. 2006) (holding that New
                             York forgery conviction is CIMT).

123a      Making,            Cf. In re Haller, 12 I. & N. Dec. 319
          drawing,           (BIA 1967) (holding issuing
          or                 fraudulent check as CIMT).
          uttering
          check,
          draft, or
          order
          without
          sufficient
          funds

124       Maiming            8 U.S.C. [section][section] 1101
                             (a)(43)(F), 1227(a)(2)(A)(iii)
                             (incorporating "crime of violence"
                             under 18 U.S.C. [section] 16 as
                             Aggravated Felony); cf. Singh v.
                             Holder, 568 F.3d 525 (5th Cir. 2009)
                             (holding Virginia's unlawful wounding
                             conviction as "crime of violence"
                             triggering Aggravated Felony).

125       Sodomy             Cf. Velez-Lozano v. INS, 463 F.2d
                             1305, 1307 (D.C. Cir. 1972) (holding
                             that "sodomy is a crime of moral
                             turpitude"); cf. In re Morsy, No.
                             A77-043-593, 2007 WL 416704 (BIA Jan.
                             26, 2007) (holding that sodomy is
                             CIMT).

126       Arson              Cf. Pretelet v. U.S. Attorney Gen.,
                             370 F.App'x 338 (3d Cir. 2010)
                             (holding New Jersey's arson
                             conviction as CIMT); Cf. Santana v.
                             Holder, 714 F.3d 140 (holding New
                             York's attempted arson conviction as
                             "crime of violence," triggering
                             Aggravated Felony).

127       Extortion          Cf. In reZeng, No. A040-009-879, 2010
                             WL 2601513 (BIA June 8, 2010)
                             (holding New York's extortion
                             conviction as "crime of violence,"
                             triggering Aggravated Felony).

128       Simple             Maximum allowable confinement is less
          Assault            than a year. Cf. Popal v. Gonzales,
          (without           416 F.3d 249 (3d Cir. 2005) (holding
          firearm);          that misdemeanor simple assault is
          Assault            not Aggravated Felony).
          consummated
          by
          battery;
          Assault
          upon
          noncommissioned
          or petty
          officer
          not in
          execution
          of office

          Other              8 U.S.C. [section][section] 1101
          Assaults           (a)(43)(F), 1227(a)(2)(A)(iii)
                             (incorporating "crime of violence"
                             under 18 U.S.C. [section] 16 as
                             Aggravated Felony); 8 U.S.C.
                             [section] 1227(2)(C) (Certain firearm
                             offenses) ("Any alien who ... is
                             convicted under any law of ... using
                             ... any weapon ... which is a
                             firearm ... is deportable.").

129       Burglary           8 U.S.C. [section][section] 1101
                             (a)(43)(G), 1227(a)(2)(A)(iii)
                             (designating "burglary" as Aggravated
                             Felony).

130       Housebreaking      Cf. In re E-----, 2 I. & N. Dec. 134
                             (BIA 1944) (holding Ohio
                             housebreaking with larceny intent
                             conviction as CIMT).

131       Perjury            8 U.S.C. [section][section] 1101
                             (a)(43)(S), 1227(a)(2)(A)(iii)
                             (designating "perjury" as Aggravated
                             Felony).

132       Frauds             In re Antigua, No. A75-401-302, 2003
          against            WL 23269935 (BIA Oct. 22, 2003)
          the United         (quoting Jordan v. De George, 341
          States             U.S. 223, 229 (1951) ("Fraud has
                             consistently been regarded as such a
                             contaminating component in any crime
                             that American courts have, without
                             exception, included such crimes
                             within the scope of moral
                             turpitude."); 8 U.S.C.
                             [section][section] 1101(a)(43)(M),
                             1227(a)(2)(A)(iii) (designating fraud
                             with $10,000 loss as Aggravated
                             Felony).

133       Conduct            Manual for Courts-Martial, United
          unbecoming         States pt. IV, [paragraph] 59.c.(3)
          officer            (2012) (listing examples of crimes,
                             including "committing or attempting
                             to commit a crime involving moral
                             turpitude."); 8 U.S.C. [section]
                             1227(2)(A)(i) (CIMT).

134       Disorders          Manual for Courts-Martial, United
          and                States pt. IV, U 60.c.(2).
          neglects
          to the
          prejudice
          of good
          order and
          discipline
          in the
          armed
          forces
          (clause 1)

          Conduct of         Manual for Courts-Martial, United
          a nature           States pt. IV, H 60.c.(3).
          to bring
          discredit
          upon the
          armed
          forces
          (clause 2)

          Crimes and         Manual for Courts-Martial, United
          offenses           States pt. IV, H 60.c.(4).
          not
          capital
          (clause 3)

          Abusing            Maximum allowable confinement is less
          public             than a year. Cf. In re B---, 7 1. & N.
          animal             Dec. 166 (BIA 1956) (holding adultery
          Adultery           as CIMT). Schmidt v. United States,
                             177 F.2d 450 (2d Cir. 1949) (holding
                             that adultery not evidence of lack of
                             good moral character for
                             naturalization).

          Assault            Akin to attempt or conspiracy as the
          with               elements require the intent to commit
          intent to          the underlying offense. Cf. Ceron v.
          commit             Holder, 712 F.3d 426 (9th Cir. 2013)
          murder,            (holding California's assault with
          voluntary          deadly weapon as CIMT).
          manslaughter,
          rape,
          robbery,
          sodomy,
          arson,
          burglary,
          or
          housebreaking

          Bigamy             Cf Injeti v. USCIS, 737 F.3d 311, 318
                             (4th Cir. 2013) (stating in dicta
                             bigamy is CIMT). But see Forbes v.
                             Brownwell, 149 F.Supp. 848 (D.D.C.
                             1957) (holding that Canadian bigamy
                             not CIMT because it lacks mens rea).

          Bribery            8 U.S.C. [section][section]
          and Graft          1101(a)(43)(J), 1227(a)(2)(A)(iii)
                             (2012) (designating racketeering
                             activity, which includes bribery and
                             graft under 18 U.S.C. [section] 201,
                             as Aggravated Felony).

          Burning            Cf. In re Antigua, No. A75-401-302,
          with               2003 WL 23269935 (BIA Oct. 22, 2003)
          intent to          (quoting Jordan v. De George, 341
          defraud            U.S. 223, 229 (1951) ("Fraud has
                             consistently been regarded as such a
                             contaminating component in any crime
                             that American courts have, without
                             exception, included such crimes
                             within the scope of moral
                             turpitude.").

          Check              Maximum allowable confinement is less
          worthless,         than a year.
          making and
          uttering

          Child              Cf. Hemandez-Perez v. Holder, 569
          endangerment       F.3d 345 (8th Cir 2009) (holding
                             Iowa's child endangerment conviction
                             as CIMT); 8 U.S.C. [section]
                             1227(a)(2)(i) (designating "child
                             abuse, child neglect, and child
                             abandonment" as deportable crimes).

          Child              8 U.S.C. [section][section] 1101
          pornography        (a)(43)(I), 1227(a)(2)(A)(iii) (2012)
                             (designating child pornography
                             related offenses under 18 U.S.C.
                             [section][section] 2251,2251 A, 2252
                             as Aggravated Felony); 8 U.S.C.
                             [section] 1227(a)(2)(i) (designating
                             "child abuse, child neglect, and
                             child abandonment" as deportable
                             crimes).

          Cohabitation,      Maximum allowable confinement is less
          wrongful           than a year.

          Correctional       Maximum allowable confinement is less
          custody,           than a year. Cf. Salazar-Luviano v.
          escape             Mukasey, 551 F.3d 857 (9th Cir 2008)
          from               (holding escape from custody is not
                             obstruction of justice under
                             Aggravated Felony).

          Correctional       Maximum allowable confinement is less
          custody,           than a year.
          breach of

          Debt,              Maximum allowable confinement is less
          dishonorably       than a year.
          failing to
          pay

          Disloyal           8 U.S.C. [section] 1227(a)(2)(D)(i)
          statements         (incorporating 18 U.S.C. [section]
                             2387 (activities affecting armed
                             forces generally) as deportable
                             crime).

          Disorderly         Maximum allowable confinement is less
          conduct            than a year.

          Drunkenness        Maximum allowable confinement is less
          aboard             than a year. 8 U.S.C. [section]
          ship               1101(f)(1) ("habitual drunkard").

          Drunk and          Maximum allowable confinement is less
          disorderly         than a year. 8 U.S.C. [section]
                             1101(f)(1) ("habitual drunkard").

          Drinking           Maximum allowable confinement is less
          liquor             than a year.
          with
          prisoner

          Drunk              Maximum allowable confinement is less
          prisoner           than a year. 8 U.S.C. [section]
                             1101(f)(1) ("habitual drunkard").

          Drunkenness-       Maximum allowable confinement is less
          incapacitating     than a year. 8 U.S.C. [section]
          oneself            1101(f)(1) ("habitual drunkard").
          for
          performance
          of duties

          Possessing         Cf. In re Antigua, No. A75-401-302,
          or using           2003 WL 23269935 (BIA Oct. 22, 2003)
          with               (quoting Jordan v. De George, 341
          intent to          U.S. 223, 229 (1951) ("Fraud has
          defraud or         consistently been regarded as such a
          deceive,           contaminating component in any crime
          or making          that American courts have, without
          altering,          exception, included such crimes
          counterfeiting,    within the scope of moral
          tampering          turpitude."); 8 U.S.C.
          with, or           [section][section] 1101(a)(43)(M),
          selling            1227(a)(2)(A)(iii) (designating fraud
          military           with $10,000 loss as Aggravated
          or                 Felony).
          official
          pass,
          permit,
          discharge
          certificate
          and
          identification
          card

          All other          Maximum allowable confinement is less
          cases              than a year.

          False              Cf In re Antigua, No. A75-401-302,
          pretenses,         2003 WL 23269935 (BIA Oct. 22, 2003)
          obtaining          (quoting Jordan v. De George, 341
          services           U.S. 223, 229 (1951) ("Fraud has
          over $500          consistently been regarded as such a
                             contaminating component in any crime
                             that American courts have, without
                             exception, included such crimes
                             within the scope of moral
                             turpitude."); 8 U.S.C.
                             [section][section] 1101(a)(43)(M),
                             1227(a)(2)(A)(iii) (designating fraud
                             with $10,000 loss as Aggravated
                             Felony).

          False              Maximum allowable confinement is less
          pretenses,         than a year.
          obtaining
          services
          $500 and
          under

          False              Cf Grajales v. Mukasey, 303 F.App'x
          swearing           942 (2d Cir. 2008) (holding that
                             offense making a false statement on
                             passport application is CIMT even if
                             the offense did not require the moral
                             turpitude element as an element); cf.
                             Calvo-Ahumada v. Rinaldi, 435 F.2d
                             544 (3d Cir. 1970) (holding federal
                             conviction of false statement under
                             oath for permanent residence
                             application as CIMT).

          Firearm,           8 U.S.C. [section] 1227(2)(C)
          discharging        (Certain firearm offense) ("Any alien
          through            who ... is convicted under any law
          negligence         of ... using ... any weapon ...
                             which is a firearm ... is
                             deportable"). Not CIMT or Aggravated
                             Felony because the maximum allowable
                             confinement is less than a year. 8
                             U.S.C. [section] 1101(f)(1).

          Firearm,           8 U.S.C. [section] 1227(2)(C)
          discharging        (Certain firearm offense) ("Any alien
          willfully,         who ... is convicted under any law
          under such         of ... using ... any weapon ... which
          circumstances      is a firearm ... is deportable."); cf
          as to              Keunge v. U.S. Attorney Gen., 561
          endanger           F.3d. 1281, 1285-86 (11th Cir. 2009)
          human life         (quoting Knapik v. Ashcroft, 384 F.3d
                             84, 90 n.5(3d Cir. 2004)) ("With
                             regard to reckless acts, moral
                             turpitude inheres in the conscious
                             disregard of a substantial and
                             unjustifiable risk of severe harm or
                             death."); 8 U.S.C. [section][section]
                             1101(a)(43)(F), 1227(a)(2)(A)(iii)
                             (incorporating "crime of violence"
                             under 18 U.S.C. [section] 16 as
                             Aggravated Felony). 18 U.S.C.
                             [section] 16 states, "an offense that
                             has as an element the use, attempted
                             use, or threatened use of physical
                             force against the person or property
                             of another, or ... any other offense
                             that is a felony and that, by its
                             nature, involves a substantial risk
                             that physical force against the
                             person or property of another may be
                             used in the course of committing the
                             offense." Id.

          Fleeing            Cf. Garcia-Maldonado v. Gonzales, 491
          scene of           F.3d 284 (5th Cir. 2007) (holding
          accident           Texas's conviction of driver failing
                             to stop and render aid in an accident
                             resulting in death or injury as
                             CIMT); cf. Latu v. Mukasey, 547 F.3d
                             1070 (9th Cir. 2008) (holding that
                             Hawaii's conviction of driver fleeing
                             the accident resulting in injury as
                             not CIMT).

          Fraternization     The offense lacks the moral turpitude
                             element for CIMT. See Beiliss, supra
                             note 91, at 59 ("The key is to
                             identify the existence of any
                             knowledge or evil intent (malum in
                             se) on the part of the accused"). No
                             corresponding crimes in the
                             definition of Aggravated Felony in 8
                             U.S.C. [section] 1101 (a)(43).

          Gambling           Maximum allowable confinement is less
          with               than a year. 8 U.S.C. [section]
          subordinate        1101(f)(5) (lack of good moral
                             character when convicted of two or
                             more gambling offenses).

          Homicide,          Elements lack the moral turpitude
          negligent          element for CIMT. Cf. States v.
                             Dominguez-Ochoa, 386 F.3d 639 (5th
                             Cir. 2004) (holding that Texas's
                             conviction for criminal negligent
                             homicide is not "crime of violence"
                             for U.S. sentence guidelines); cf.
                             Leocal v. Ashcroft, 543 U.S. 1, 1-2
                             (2004) (holding that state DUI
                             offenses without a mens rea and only
                             requiring negligence in operating a
                             vehicle is not "crime of violence"
                             under Aggravated Felony).

          Impersonation      Cf In re Antigua, No. A75-401-302,
          with               2003 WL 23269935 (BIA Oct. 22, 2003)
          Intent to          (quoting Jordan v. De George, 341
          Defraud            U.S. 223, 229 (1951) ("Fraud has
          Impersonation      consistently been regarded as such a
                             contaminating component in any crime
                             that American courts have, without
                             exception, included such crimes
                             within the scope of moral
                             turpitude."); 8 U.S.C.
                             [section][section] 1101(a)(43)(M),
                             1227(a)(2)(A)(iii) (designating fraud
                             with $10,000 loss as Aggravated
                             Felony). Maximum allowable
                             confinement is less than a year.

          Indecent           8 U.S.C. [section] 1227(a)(2)(E)(i)
          language,          (listing "child abuse" as
          communicated       deportable). The elements, however,
          to child           may be too broad to trigger removal.
          under the
          age of
          sixteen

          Indecent           Maximum allowable confinement is less
          language           than a year.

          Jumping            Maximum allowable confinement is less
          from               than a year.
          vessel
          into the
          water

          Kidnapping         8 U.S.C. [section][section] 1101
          Mail:              (a)(43)(F), 1227(a)(2)(A)(iii)
          taking,            (incorporating "crime of violence"
          opening,           under 18 U.S.C. [section] 16 as
          secreting,         Aggravated Felony); cf.
          destroying,        Delgado-Hernandez v. Holder,697 F.3d
          or                 1125 (9th Cir. 2012) (holding
          stealing           California's ordinary kidnapping as
                             Aggravated Felony). Cf. Randhawa v.
                             Ashcroft, 298 F.3d 1148 (9th Cir.
                             2002) (holding possession of stolen
                             mail as theft offense under
                             Aggravated Felony).

          Mails:             Cf. In re D---, 1 I. & N. Dec. 190
          depositing         (BIA 1942) (holding federal
          or causing         conviction for mailing obscene letter
          to be              is not CIMT).
          deposited
          obscene
          matters in

          Misprision         Cf. Itani v. Ashcroft, 298 F.3d 1213
          of serious         (11th Cir. 2002) (holding misprision
          offense            of felony as CIMT). But see
                             Robles-Urrea v. Holder, 678 F.3d 702
                             (9th Cir. 2012) (holding misprision
                             of felony is not categorically a CIMT
                             but may be under modified categorical
                             match).

          Obstructing        8 U.S.C. [section][section] 1101
          justice            (a)(43)(S), 1227(a)(2)(A)(iii)
                             (designating obstruction of justice
                             as Aggravated Felony).

          Wrongful           Manual for Courts-Martial, United
          interference       States pt. IV, U 96.c (2012).
          with an            Potential Aggravated Felony for
          adverse            obstruction of justice for
          administrative     obstructing proceedings before
          proceeding         agencies. 8 U.S.C. [section][section]
                             1101 (a)(43)(S), 1227(a)(2)(A)(iii)
                             (designating obstruction of justice
                             as Aggravated Felony); 18 U.S.C.
                             [section] 1505 (2012) (criminalizing
                             "imped[ing] or endeavoring] to
                             influence, obstruct, or impeding] the
                             due and proper administration of the
                             law under which any pending
                             proceeding is being had before any
                             department or agency of the United
                             States").

          Pandering          Cf. Rohit v. Holder, 670 F.3d 1085,
                             1089-90 (9th Cir. 2012) (holding
                             solicitation of prostitution as CIMT
                             because no less vile than engaging in
                             prostitution which is CIMT); 8 U.S.C.
                             [section][section] 1101
                             (a)(43)(K(i)), 1227(a)(2)(A)(iii)
                             (designating an "offense that.. .
                             relates to the owning, controlling,
                             managing, or supervising of a
                             prostitution business" as Aggravated
                             Felony).

          Prostitution       8 U.S.C. [section] 1182(2)(D)
          and                (prostitution and procurement of
          patronizing        prostitution).
          a
          prostitute

          Parole,            Maximum allowable confinement is less
          violation          than a year.
          of

          Perjury,           8 U.S.C. [section][section] 1101
          subornation        (a)(43)(S), 1227(a)(2)(A)(iii)
          of                 (designating "subornation of perjury"
                             as Aggravated Felony).

          Public             The offense lacks the moral turpitude
          record:            element for CIMT. See Beiliss, supra
          altering,          note 91, at 59 ("The key is to
          concealing,        identify the existence of any
          removing,          knowledge or evil intent (malum in
          mutilating,        se) on the part of the accused"). No
          obliterating,      corresponding crime in the definition
          or                 of Aggravated Felony in 8 U.S.C.
          destroying         [section] 1101 (a)(43).

          Quarantine,        Maximum allowable confinement is less
          breaking           than a year.

          Reckless           Cf Knapik v. Ashcroft, 384 F.3d 84
          endangerment       (3d Cir. 2004) (holding New York's
                             conviction of attempted reckless
                             endangerment as not CIMT); But see
                             Keunge v. U.S. Attorney Gen., 561
                             F.3d. 1281, 1285-86 (11th Cir. 2009)
                             (quoting Knapik v. Ashcroft, 384 F.3d
                             84, 90 n.5) ("With regard to reckless
                             acts, moral turpitude inheres in the
                             conscious disregard of a substantial
                             and unjustifiable risk of severe harm
                             or death").

          Restriction,       Maximum allowable confinement is less
          breaking           than a year.

          Seizure:           The offense lacks the moral turpitude
          destruction,       element for CIMT. See Beiliss, supra
          removal,           note 91, at 59 ("The key is to
          or                 identify the existence of any
          disposal           knowledge or evil intent (malum in
          of                 se) on the part of the accused"). No
          property           corresponding crime in the definition
          to prevent         of Aggravated Felony in 8 U.S.C.
                             [section] 1101(a)(43).

          Self-              The offense lacks the moral turpitude
          injury             element for CIMT. See Beiliss, supra
          without            note 91, at 59 ("The key is to
          intent to          identify the existence of any
          avoid              knowledge or evil intent (malum in
          service            se) on the part of the accused). No
                             corresponding crime in the definition
                             of Aggravated Felony in 8 U.S.C.
                             [section] 1101 (a)(43).

          Sentinel           Maximum allowable confinement is less
          or                 than a year.
          lookout,
          disrespect
          to

          Sentinel           The offense lacks the moral turpitude
          or                 element for CIMT. See Beiliss, supra
          lookout:           note 91, at 59 ("The key is to
          Loitering          identify the existence of any
          or                 knowledge or evil intent (malum in
          wrongfully         se) on the part of the accused). No
          sitting on         corresponding crime in the definition
          post while         of Aggravated Felony in 8 U.S.C.
          receiving          [section] 1101(a)(43).
          special
          pay

          Sentinel           Maximum allowable confinement is less
          or                 than a year.
          lookout:
          Loitering
          or
          wrongfully
          sitting on
          post

          Soliciting         Cf. Barrage-Lopez v. Mukasey, 507
          another to         F.3d 899, 903 (9th Cir. 2007)
          commit an          (holding CIMT determination for
          offense            inchoate crimes depends on the
                             underlying offense); see also Rohit
                             v. Holder, 670 F.3d. 1085, 1089-90
                             (9th Cir. 2012).

          Straggling         Maximum allowable confinement is less
                             than a year.

          Testify,           Cf. Alwan v. Ashcroft, 388 F.3d 507
          wrongfully         (5th Cir. 2004) (holding federal
          refusing           contempt of court conviction of
          to                 failing to testify at federal grand
                             jury as Aggravated Felony for
                             obstructing justice). 8 U.S.C.
                             [section][section] 1101 (a)(43)(S),
                             1227(a)(2)(A)(iii) (designating
                             obstruction of justice as Aggravated
                             Felony).

          Threat,            Cf. Latter-Singh v. Holder, 663 F.3d
          bomb or            1156 (9th Cir. 2012) (holding that
          hoax               California's conviction for making
                             threats to terrorize is CIMT). But
                             see Abpikar v. Holder, 544 F.App'x
                             719 (9th Cir. 2013) (holding that
                             Ohio's conviction of telephoning bomb
                             threat is not CIMT).

          Unlawful           Maximum allowable confinement is less
          entry              than a year.

          Weapon,            8 U.S.C. [section] 1227(2)(C)
          concealed.         (Certain firearm offense) ("Any alien
          carrying           who ... is convicted under any law
                             of ... carrying ... any weapon ...
                             which is a firearm ... is
                             deportable.").

          Wearing            Maximum allowable confinement is less
          unauthorized       than a year.
          insignia,
          decoration,
          badge,
          ribbon,
          device, or
          lapel
          button


(1) Padilla v. Kentucky, 559 U.S. 356, 374 (2010) (citation omitted) (holding that defense counsel violated a noncitizen's Sixth Amendment right to counsel by not advising the immigration consequences for pleading guilty).

(2) Id. at 365-66, 369. "We conclude that advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel." Id.

(3) See U.S. Army Trial Judiciary, Approved Change #10-03 (Effect of Guilty Plea on Immigration Status) to U.S. DEP'T OF ARMY, PAM. 27-9, Military Judges' Benchbook (1 Jan. 2010). This interim change requires military judges to inquire into noncitizen accused's understanding of potential immigration consequences and to verify the existence of defense counsel's written advisement regarding such consequence. Id.

(4) See Margaret D. Stock, Immigration Law & the Military 31 (2012); see infra Part III.A.3.

(5) This article addresses U.S. citizens who were naturalized based on military service as "military-naturalized" citizens, distinguishing them from other U.S. citizens who were naturalized under the regular process. See Immigration and Nationality Act (INA) [section][section] 328-329, 8 U.S.C. [section][section] 1439 1440 (2012). These military naturalizations "waive ... age, continuous residence, physical presence, and state residence requirements of the civilian naturalization...." STOCK, supra note 4, 33-34.

(6) Currently, Army judge advocates only receive familiarization of immigration law for legal assistance purposes at The Judge Advocate General's Legal Center and School and typically rely on civilian attorneys and paralegals in the field to handle most immigration matters. This assertion is based on the author's recent professional experience teaching immigration law for the 190th Officer Basic Course, The Judge Advocate General's School in April 2013.

(7) See John F. Kennedy, a Nation of Immigrants (1964).

(8) Richard D. Steel, Steel on Immigration [section] 1.1 (2013).

(9) Id. [section] 1.2. Despite being codified under the U.S. Code, federal immigration agencies and immigration practitioners still cite to the sections in the INA, rather than the U.S. Code. See Laws: Immigration and Nationality Act, U.S. CITIZENSHIP & IMMIGRATION SERVS., http://www. uscis.gov/laws/immigration-and-nationality-act (last updated Sept. 13, 2013). To be consistent with prevailing immigration practice, this article provides citations to both. For example, section 329 of the INA is cited as "INA [section] 329, 8 U.S.C. [section] 1439 (2012)."

(10) STEEL, supra note 8, [section][section] 1:2-1:3. See generally INA, tits. I-V, 8 U.S.C. subchs. I-V (2012).

(11) See generally 8 C.F.R. ch. I (Department of Homeland Security), ch. V (Executive Office of Immigration Review, Department of Justice) (2013).

(12) E.g., compare INA [section] 329, 8 U.S.C. [section] 1440 (providing the statutory requirements for wartime military naturalization), with 8 C.F.R. pt. 329 (providing the regulatory requirements for wartime military naturalization). In addition, the State Department's regulation governs the issuance of U.S. passports and visas abroad. 22 C.F.R. pts. 22, 40-42, 45-46, 50-53, 62, 97, 99, 104(2013).

(13) See STEEL, supra note 8, [section] 1:8; Stephen H. Legomsky & Cristina M. Rodriguez, Immigration and Refugee Law and Policy 2-3 (5th ed. 2009); Yafang Deng, When Procedure Equals Justice: Facing the Pressing Constitutional Needs of a Criminalized Immigration System, 42 COLUM. J.L. & Soc. PRODS. 261, 261 (2008) (pointing out that immigration law has not developed Ihe procedural due process to match the increasingly quasicriminal process of immigration enforcement).

(14) Legomsky & Rodriguez, supra note 13, at 2.

(15) Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (2002) [section][section] 428 (visa issuance), 441-46 (immigration enforcement functions), 451-62 (citizenship and immigration functions), 471-78 (general immigration provisions).

(16) Legomsky & Rodriguez, supra note 13, at 3.

(17) See About Us, U.S. CITIZENSHIP & IMMIGRATION SERVS., http://www. uscis.gov/aboutus (last updated Sept. 12, 2009).

(18) Timeline, U.S. CUSTOMS & BORDER PROTECTION, http://nemo.cbp.gov/ opa/timeLine_04212011.swf (last visited Nov. 26, 2013); About ICE: Overview, ICE, http://www.ice.gov/about/overview/ (last visited Nov. 26, 2013).

(19) Exec. Office of Immigration Review, About the Office, U.S. Dep't of Justice, http://www.justice.gov/eoir/orginfo.htm (last updated Oct. 2013): Legomsky & Rodriguez, supra note 13, at 3-4,504.

(20) See infra Part II.D.6.

(21) Legomsky & Rodriguez, supra note 13, at 4.

(22) One must be aware that "status" and "visa" are two separate authorizations. "Visa" is a U.S. consular endorsement on a passport permitting the holder to apply for admission into the United States in a particular immigration category and duration; whereas, "status" is a U.S. Customs and Border Protection (CBP) issued authorization to enter and remain in the United States in a particular classification and for an applicable period of time. See Visa, U.S. CITIZENSHIP & IMMIGRATION Servs., http://www.uscis.gov/tools/glossary/visa (last visited Jan. 22, 2014); Black's Law Dictionary 1706 (9th ed. 2009) ("visa").

(23) There are several other statuses such as "refugee," "asylee," and "temporary protective status:" however, they will not be discussed as they are in-between nonimmigrant and immigrant status.

(24) The INA differentiates U.S. nationals from U.S. citizens, defining "U.S. national" as being either "U.S. citizen" or "a [noncitizen] who ... owes permanent allegiance to the United States." INA [section] 101(a)(22), 8 U.S.C. [section] U01(a)(22) (2012). Thus, some U.S. nationals are "born in outlying possessions" but are not citizens. INA [section] 308, 8 U.S.C. [section] 1408. U.S. nationals must naturalize to gain citizenship. See STOCK, supra note 4, at 10 n.6 (listing examples of U.S. noncitizen nationals born in American Samoa and Swain's Island). People from Micronesia, the Marshall Islands, and Palau are not U.S. nationals but are permitted to join the U.S. military. E-mail from Ms. Margaret D. Stock, Esq., to author, subj: Footnotes Requested (Oct. 22, 2014, 12:40PM EST), cmt. MDS2 [hereinafter Stock email].

(25) Lawful Permanent Resident (LPR), U.S. CITIZENSHIP & IMMIGRATION Servs., http://www.uscis.gov/tools/glossary/lawful-permanent-resident-lpr (last visited Jan. 22, 2014). There are also conditional permanent residents (CPRs) who receive permanent residency on a two-year conditional basis--by marriage or for entrepreneurship. Conditional Permanent Residence, U.S. Citizenship & Immigration Servs., http://www.uscis.gov/greencard/ after-green-card-granted/conditional-permanent-residence (last visited Feb. 27, 2014). Many of these CPRs do serve in the military. Stock e-mail, supra note 24, cmt. MDS3.

(26) INA [section] 101(a)(15), 8 U.S.C. [section] 1101 (a)(15) (listing categories of nonimmigrant statuses for foreigners who are temporarily present in the United States).

(27) INA [section] 301, 8 U.S.C. [section] 1401. There are also "derivative" citizens who obtain their citizenship as a child due to parents' naturalization or a foreign born child adopted by U.S. citizens. Derivative Citizenship, U.S. Citizenship & Immigration Servs., http://www.uscis.gov/tools/glossary/ derivative-citizenship (last visited, Oct. 22, 2014).

(28) INA [section] 101 (a)(20), 8 U.S.C. [section] 1101 (a)(20) (definition of "lawfully admitted for permanent residence"); INA [section] 101(a)(15)(A)--(V), 8 U.S.C. [section] [section] 1101 (a)(15)(A)--(V) (providing various nonimmigrant status for specific purpose and period of time); RUTH E. Wasem, Cong. Research Serv., RS20916, Immigration and Naturalization Fundamentals 1 (2003).

(29) A nonimmigrant can become a lawful permanent resident (LPR) based on her U.S. employment or familial relationship, and a LPR can seek to be naturalized once she meets the citizenship requirements. INA [section][section] 245 (status change from nonimmigrant to LPR), 310 (U.S. authority to naturalize foreigners), 8 U.S.C. [section][section] 1255, 1421. Though rare, U.S. citizens can also renounce citizenship by naturalizing in another country, joining a foreign military, accepting a foreign government position, or committing treason. INA [section] 349, 8 U.S.C. [section] 1481.

(30) INA [section] 212(a), 8 U.S.C. [section] 1182(a), cited in Robert C. Divine, Immigration Practice: 2010-2011 Edition [section] 10-6(f), at 10-79 (2010); Legomsky & Rodriguez, supra note 13, at 1140 (referring to aliens who enter without inspection as "undocumented immigrants").

(31) See infra Appendices B (Inadmissibility Grounds) & C (Deportability Grounds).

(32) LEGOMSKY & Rodriguez, supra note 13, at 420, 431. See generally, INA [section][section]212 ("inadmissible alien"), 237 ("deportable alien"), 8 U.S.C. [section][section] 1182, 1227. Though "substantially similar," inadmissibility grounds and deportable grounds are slightly different so one must be careful to review the actual statute and corresponding regulation. DIVINE, supra note 30, [section] 10-6, at 10-8.

(33) See Appendix A (Immigration and Naturalization Process) (providing graphic illustration).

(34) A foreigner may also immediately qualify for LPR status based on employment or family sponsorship. See infra Part II.D.3 discussion.

(35) See INA [section][section] 214(c) (certain employment-related visas requiring U.S. Citizenship and Immigration Services (USCIS) pre-approval before applying for visa), 221 (consular officer's responsibility to issue visa), 8 U.S.C. [section][section] 1184(c), 1201.

(36) Divine, supra note 30, [section] 10-2(a), at 10-3 to 10-4. The system includes checks against the FBI's National Crime Information Center criminal history information and against other U.S. law enforcement and intelligence agencies' databases. Id.

(37) INA [section] 235(b)(2)(A), 8 U.S.C. [section] 1225(b)(2)(A).

(38) IBIS-General Information, U.S. CUSTOMS & BORDER PROTECTION (July 31, 2013, 3:46 PM), https://help.cbp.gov/app/answers/detail/a_id/151//ibis--general-information. It provides DHS inspectors access to interagency law enforcement database, including FBI National Crime Information Center and the National Law Enforcement Telecommunications Systems, which connects with all fifty states' law enforcement agencies. Id.

(39) U.S. Customs & Border Protection, Customs and Border Protection (CBP) Inspector's Field Manual (FM) ch. 15.2 (Feb. 10, 2006) [hereinafter, CBP INSPECTOR'S FM] (redacted for Public Release); see also LEGOMSKY & RODRIGUEZ, supra note 13, at 503.

(40) INA [section][section] 239-240, 8 U.S.C. [section][section] 1229-1229a; see Legomsky & RODRIGUEZ, supra note 13, at 504. For details on removal proceedings, see infra Part II.D.5 discussion.

(41) In 2011, 1.9 million nonimmigrants lived in the United States. Bryan Baker, Office of Immigration Statistics, U.S. Dep't of Homeland Sec., Estimates of the Size and Characteristics of the Resident Nonimmigrant Population in the United States: January 2011, POPULATION ESTIMATE 1 (Sept. 2012).

(42) Nonimmigrants find their statuses too tenuous because most cannot be extended indefinitely and any change in circumstances (e.g., graduation or loss of job) requires a new nonimmigrant petition. See, e.g., 8 C.F.R. [section] 214.2(h) (2013).

(43) INA [section][section] 203(a) (family sponsored immigration), 203(b) (employment-based immigration), 8 U.S.C. [section][section] 1153(a), 1153(b). Though most obtain LPR status through family- or employment-based immigration, there are several other ways to obtain LPR such as diversity visa, special immigrant juvenile status, battered spouse/child, and etc. Other Ways to Get a Green Card, U.S. Citizenship & Immigration Servs., http://www.usds. gov/green-card/other-ways-get-green-card (last updated Jan. 8, 2014).

(44) This process subjects the foreigner to examination by U.S. consulate abroad and then by the CBP at the border. See supra Part II.D. 1-2.

(45) The USCIS examines her adjustment application for inadmissibility and deportability because the bureau deems her "adjustment" as a new "admission" and reviews for deportability. See DIVINE, supra note 30, [section]10-4, at 10-7. If denied for other than inadmissibility or deportable grounds, the applicant must seek reopening or reconsideration of the case or seek an immigrant visa from the consulate. See 8 C.F.R. [section] 103.5 (2013). If the denial is based on inadmissibility or deportable grounds, the USCIS can initiate removal proceeding. INA [section][section] 239-240, 8 U.S.C. [section][section] 1229-1229a. See infra Part II.D.5 discussion.

(46) In 2012, there were 13.3 million LPRs residing in the United States. Nancy Rytina, Office of Immigration Statistics, U.S. Dep't of Homeland Sec., Estimates of the Lawful Permanent Resident Population in 2012, Population Estimate 1 (July 2013).

(47) Compare Rights and Responsibilities of a Green Card Holder (Permanent Resident), U.S. CITIZENSHIP & IMMIGRATION SERVS., http:// www.uscis.gov/green-card/after-green-card-granted/ rights-and-responsibilities-permanent-resident/rights-and-responsibilities-green-card-holder-permanent-resident (last visited May 13, 2014) (listing a LPR's rights to live and work in the United States permanently and be protected by the laws of the United States and responsibility to pay taxes and register for selective service), and Maintaining Permanent Residence, U.S. Citizenship & IMMIGRATION SERVS., http://www.uscis.gov/green-card/after-green-cardgranted/maintaining-permanent-residence (last visited May 13, 2014) (listing conditions in which a LPR can lose the LPR status), with Citizenship Rights and Responsibilities, U.S. CITIZENSHIP & IMMIGRATION SERVS., http://www.uscis.gov/citizenship/leamers/citizenship-rights-andresponsibilities (last visited May 13, 2014) (listing U.S. citizen's rights to vote, serve on a jury, and gain federal employment).

(48) The review of good moral character is critical as it triggers potential referral to removal proceedings based on inadmissibility or deportable grounds. See DIVINE, supra note 30, [section] 12-3(C)(l)(iv), at 12-16. The INA defines "good moral character" in the negative, enumerating what acts would render one a person not of good moral character. INA [section] 101 (f). 8 U.S.C. [section]1101(f). See Appendix F (Definition of "Good Moral Character") (providing the full text). Furthermore, there are other statutory bars against naturalization, such as being a member of or affiliated with anarchist, communist, or totalitarian principles, advocating overthrow of the U.S. government, avoiding the draft, deserting the armed forces during wartime, and being discharged from the armed forces based on alienage. INA [section][section] 313-315, 8 U.S.C. [section][section] 1424-1426.

(49) INA [section][section]312 (English and civics requirement), 316 (requirements for residence, good moral character, and attachment to U.S. Constitution), 8 U.S.C. [section][section] 1423, 1427. The spouse of a U.S. citizen has a shorter time in residence and physical presence requirements. INA [section] 319 (U.S. citizen spouse exceptions), 8 U.S.C. [section] 1430.

(50) Under a pilot military exception, a qualified nonimmigrant may also be naturalized through the Military Accessions Vital to the National Interest (MAVNI) program, now available until May 2015. See Fact Sheet, U.S. Dep't of Def., Military Accessions Vital to the National Interest (MANV1) Recruitment Pilot (May 2012), available at http://www.defense. gov/news/mavni-fact-sheet.pdf; MAVNI Program: Direct U.S. Citizenship Without Green Card, Int'l STUDENT VOICE Mag. (May 5, 2014), http:// www.isvmag.com/05/05/mavni-program-direct-u-s-citizenship-withoutgreen-card/5366. On 25 September 2014, The Department of Defense further announced that it would also allow qualified undocumented aliens to enlist under this program. See Julia Preston, Military< Path Opened for Young Immigrants, N.Y. TIMES, Sept. 25, 2014, http://www.nytimes.com/2014/09/26/us/military-path-opened-for-youngimmigrants.html? j=0.

(51) INA [section][section] 328-329, 8 U.S.C. [section][section] 1439-1440; see also supra note 5.

(52) Investigation includes (1) the FBI criminal background check, (2) a name check against the FBI's Universal Index, and (3) "other inter-agency criminal background and security checks." U.S. Citizenship & Immigration Servs., 12 USCIS Policy Manual pt. B, ch. 2, at 110 (Sept. 30, 2013) [hereinafter, USCIS POLICY Manual VOL. 12], available at http://www.uscis.gov/policymanual/PDF/PolicyManual.pdf. Though not named in the policy manual, the author suspects that IBIS is also queried in this investigation. See supra note 38.

(53) INA [section][section] 238(e), 239(a), 8 U.S.C. [section][section] 1439(e), 1440(a). See infra Part III.B.3.

(54) 8 C.F.R. [section] 337.1 (2013) (the naturalization oath).

   I hereby declare, on oath, that I absolutely and
   entirely renounce and abjure all allegiance and
   fidelity to any foreign prince, potentate, state, or
   sovereignty, of w'hom or which I have heretofore
   been a subject or citizen; that I will support and
   defend the Constitution and laws of the United
   States of America against all enemies, foreign and
   domestic; that I will bear true faith and allegiance
   to the same; that I will bear arms on behalf of the
   United States when required by the law; that I will
   perform noncombatant service in the Armed
   Forces of the United States when required by the
   law; that 1 will perform work of national
   importance under civilian direction when required
   by the law; and that I take this obligation freely,
   without any mental reservation or purpose of
   evasion; so help me God.


Id.

(55) For arriving noncitizens who lack proper documents or misrepresent information to a border inspection officer, the CBP can remove such noncitizens without a removal proceeding. See INA [section] 235(b), 8 U.S.C. [section] 1225(b).

(56) In 1996, the term "remove" replaced the terms "exclude," which only applied to aliens denied admission, and "deport," which only applied to aliens already admitted but found deportable. LEGOMSKY & RODRIGUEZ, supra note 13, at 421. Due to familiarity, however, the term "deport" is still interchangeably used with "remove." Id.

(57) INA [section] 239, 8 U.S.C. [section] 1229.

(58) Divine, supra note 30, [section] 11-1, at 11-2.

(59) Id. Though aliens may be represented by counsel, Ms. Stocks notes that most do not. Stock e-mail, supra note 24, cmt. MDS6.

(60) Charles a. Wiegand III, Exec. Office of Immigration Rev., U.S. Dep't of Justice, Fundamentals of Immigration Law 69 (Oct. 2011); INA [section] 240(b)(4), 8 U.S.C. [section] 1229a(b)(4).

(61) INA [section] 240(c)(2), 8 U.S.C. [section] 1229a(c)(2) (burden on arriving aliens and aliens present in the United States without being inspected or paroled); Divine, supra note 30, [section]11-1, at 11-3.

(62) INA [section] 240(c)(3)(A), 8 U.S.C. [section] 1229a(c)(3)(A); 8 C.F.R. [section] 1240.8 (2014) ("Burdens of Proof in removal proceedings").

(63) INA [section] 240(c), 8 U.S.C. [section] 1229a(c). The immigration judge may terminate the proceeding, adjust the noncitizen's status to LPR if eligible, cancel the removal of certain LPRs and nonimmigrants, or waive certain deportahility grounds. DIVINE, supra note 30, [section] 11 -5(c), (d), (f), (g).

(64) 8 C.F.R. [section] 1003.1.

(65) Id. [section] 1003.3(b); see DIVINE, supra note 30, [section] 11 -6(a), at 11-100.

(66) DIVINE, supra note 30, [section] 11 -6(b), at 11-101. Due to the complexity of federal courts' jurisdiction over immigration matters, this article does not address federal appeal processes. See id. [section] 2-2(a)(l)(I), at 2-24 to 2-32.

(67) INA [section] 238(c), 8 U.S.C. [section] 1228(c); see infra Appendix E (Definition of "Aggravated Felony" in the INA). Conditional permanent residents are those immigrants who receive permanent residency on a two-year conditional basis--by marriage or for entrepreneurship. See supra note 25. By written policy, however, the DHS does not utilize expedited removal of CPRs. Stock e-mail, supra note 24, cmt. GR10.

(68) INA [section] 238(b), 8 U.S.C. [section] 1228(b); DIVINE, supra note 30, [section] I l-4(h), at 11-56.

(69) INA [section] 238(c), 8 U.S.C. [section] 1228(c). This subsection was erroneously renumbered; it is supposed to be subsection (d). DIVINE, supra note 30, at 11-58, n.267.

(70) INA [section] 238(c), 8 U.S.C. [section] 1228(c). DIVINE, supra note 30, [section] ll-4(i), at 11-57. Often, the noncitizen defendants will agree to judicial removal as a part of the plea bargain, td.

(71) DIVINE, supra note 30, [section] 12-5, at 12-46.

(72) The three civil grounds for denaturalization are (1) "illegal procurement of naturalization," (2) "concealment of a material fact or willful misrepresentation," and (3) for military-naturalized citizen, being "discharged [from service] under other than honorable conditions before serving honorably for five years." USCIS POLICY MANUAL VOL. 12, supra note 52, pt. L, ch. 1, at 291. Under the criminal process, one's conviction of the federal offense of procuring naturalization unlawfully results in revocation. Id.', 18 U.S.C. [section] 1425 (Procurement of citizenship or naturalization unlawfully). The USCIS has an administrative authority to reopen the naturalization "to correct, reopen, alter, modify, or vacate" a naturalization order. INA [section] 340(h), 8 U.S.C. [section] 1451(h). However, this article focuses only on the revocation.

(73) USCIS Policy Manual Vol. 12, supra note 52, pt. L, ch. 1, at 291.

(74) Kungys v. United States, 485 U.S. 759, 767 (1988), cited in USCIS Policy Manual Vol. 12, supra note 52, pt. L, ch. 1, at 291.

(75) USCIS Policy Manual Vol. 12, supra note 52, pt. L, ch. 1, at 291.

(76) Office of the U.S. Attorneys, U.S. Dep't of Justice, 9 United States Attorneys Manual [section] 9-73.801 (May 2010) [hereinafter 9 U.S. Attorneys Manual], available at http://www.justice.gov/usao/eousa/ foia_reading_room/usam/title9/73mcrm.htm#9-73. In practice, Office of Immigration Litigation (OIL) initiates and prosecutes civil denaturalization cases. Stock e-mail, supra note 24, cmt. MDS13.

(77) 9 U.S. Attorneys Manual, supra note 76. Beginning in 2010, the DHS reviews all proposed civil denaturalization actions prior to being presented to OIL and U.S. attorney's office. Stock e-mail, supra note 24, cmt. GR14.

(78) See supra note 5 (explanation of "military-naturalized").

(79) Prior to 2004, there were a few cases of illegal aliens joining the service with fraudulent documents. Mary D. Stock, Essential to the Fight: Immigrants in the Military Eight Years After 9/11, IMMIGRATION POL'Y CTR. SPECIAL Rep. 9 n.13 (Nov. 2009), available at http://www. immigrationpolicy.org/sites/default/files/docs/Immigrants_in_the_Military_ -_Stock_l 10909_0.pdf (citing Douglas Gillison, The Few, the Proud, the Guilty: Marines Recruiter Convicted of Providing Fake Documents to Enlist Illegal Aliens, VILLAGE VOICE, Oct. 11, 2005, http://www.villagevoice.com/ 2005-l0-ll/news/the-few-the-proud-the-guilty/). Since 2004, the armed services verify a noncitizen recruit's status via the USCIS database. STOCK, supra note 4. at 15 n.33.

(80) 10 U.S.C. [section][section] 504 (requiring U.S. citizenship, LPR, or U.S. nationality for enlistment in the armed forces), 532 (requiring U.S. citizenship for receiving regular commission in the armed forces unless Secretary of Defense waives for LPRs and U.S. nationals) (2012).

(81) See supra Part II.D.4 and notes 5 & 24.

(82) Again, U.S. citizens, regardless of whether by birth or by regular naturalization, can lose their citizenship by certain acts such as formal renunciation or foreign naturalization. See supra note 72. For regular-naturalized citizens, it may be possible that a military adverse action may reveal one's illegal procurement or willful misrepresentation to procure naturalization; however, the underlying conduct is not military-specific. Therefore, these topics are beyond the scope of this article.

(83) STOCK, supra note 4, at 81; Stock e-mail, supra note 24, cmt. MDS9 ("There are some limited protections such as military naturalization and the [Servicemembers'] Civil Relief Act."). There is, however, a limited protection for noncitizen servicemembers from removal when traveling in and out of the United States while on official military orders. 8 C.F.R. [section] 235.1(c) (2013).

(84) See supra note 72 and Part II.D.4.-6.

(85) STOCK, supra note 4, at 87.

(86) See supra note 1 and accompanying text.

(87) INA [section] 237(a), 8 U.S.C. [section] 1227(a) (2012); see infra Appendix C (Deportability Grounds). The six categories are (I) immigration law violation; (2) deportable criminal offenses; (3) security related grounds; (4) failure to comply with immigration registration requirements or falsely claiming citizenship; (5) public charge; and (6) unlawful voter. Id.

(88) In 2012, 47.6 percent of total removal were based on criminal grounds. John F. Simanski & Lesley M. Sapp, Office of Immigration Statistics, U.S. Dep't of Homeland Sec., Immigration Enforcement Action: 2012, ANNUAL REPORT tbl.7, at 6 (Dec. 2013).

(89) Office of Immigration Litig., U.S. Dep't of Justice, Immigration Consequences for Criminal Convictions: Padilla v. Kentucky 718 (2010) [hereinafter USDOJ-OIL Monograph].

(90) Id. at 7-11. Technically, these crimes are divided between deportable and inadmissible criminal convictions; however, for the purpose of determining removability, they are applied equally. Hence, this article does not distinguish them. For the definition of a crime of moral turpitude, see Appendix D of this article.

(91) Major Richard D. Beiliss, Consequences of a Court-Martial Conviction for United States Service Members Who Are Not United States Citizens, 51 Naval L. Rev. 53, 57 (2005); USDOJ-OIL Monograph, supra note 89, at 6-25, app. D.

(92) Beiliss, supra note 91, at 56-57.

(93) Id. at 57-63 (explaining how to determine whether a crime is a crime involving moral turpitude, aggravated felony, and other deportable offenses); USDOJ-OIL MONOGRAPH, supra note 89, app. D (providing excellent summary of the two-step process called "categorical" and "modified categorical" approaches used by federal courts and Board of Immigration Appeals (BIA) to determine whether a particular federal or state conviction matches the generic definition of criminal grounds for removal as well as a "circumstance-specific" approach for non-generic criminal grounds for removal). See infra note 151 (explaining these approaches).

(94) USDOJ-OIL MONOGRAPH, supra note 89, at 7, 11-18.

(95) U.S. Dep't of Army, Reg. 380-67, Personnel Security Program para. 3-22a (14 Jan. 2014).

(96) See supra note 47 and accompanying text.

(97) INA [section][section] 212(f), 316, 8 U.S.C. [section][section] 1101(f), 1427 (2012); see supra note 48 and infra Appendix F.

(98) INA [section][section] 314-315, 328-329, 8 U.S.C. [section][section] 1425-1426, 1439-1440 (2012). See also supra note 5 and accompanying text.

(99) See supra Part II.D.6.

(100) INA [section][section] 328-329, 8 U.S.C. [section][section] 1439-1440; see also STOCK, supra note 4, at 57.

(101) See 8 C.F.R. [section][section]328.1,329.1 (2013).

(102) There are only two denaturalization cases based on other than honorable discharge from the armed forces, and only one resulted in denaturalization. See United States v. Sommerfeld, 211 F. Supp. 493, 495 (E.D. Pa. 1962) (denaturalizing an Air Force veteran who received dishonorable discharge); see also United States v. Tarantino, 122 F. Supp. 929, 932 (E.D.N.Y. 1954) (denying denaturalization of an Army veteran who received dishonorable discharge).

(103) STOCK, supra note 4, at 59-60, 80. There are other adverse actions such as administrative reprimand or counseling that may create an official document that evidences servicemember's misconduct; however, they are unlikely to trigger immigration consequences unless they become a matter of public record. Id. at 59-60.

(104) See id. at 60-65.

(105) IN A [section] 101 (a)(48)(A), 8 U.S.C. [section] 1101 (a)(48)(A); see STOCK, supra note 4, at 57.

(106) In re Eslamizar, 23 1. & N. Dec. 684, 687 (B1A 2004) (holding that conviction at an Oregon violation proceedings without counsel is not a conviction for immigration purposes).

(107) See In re Rivera-Valencia, 241 I. & N. Dec. 484 (BIA 2008) (holding that the alien's general court-martial conviction for carnal knowledge is conviction for immigration purposes); see also Gregory E. Fehlings, Deportation as a Consequence of a Court-Martial Conviction, 7 Geo. Immigr. L.J. 295 (June 1993) (explaining that the additional constitutional safeguards for the military accused have made general and special court-martial convictions qualifying under the INA).

(108) INA [section] 101(a)(48), 8 U.S.C. [section] 1101 (a)(48); see Fehlings, supra note 107, at 300 (citing Middendorfv. Henry, 425 U.S. 25, 34 (1976)).

(109) U.S. Dep't of Army, Reg. 190-45, Law Enforcement Reporting para. 4-10 (30 Mar. 2007) [hereinafter AR 190-45]; U.S. DEP'T OF Def., Instr. 5505.1 1, Fingerprinting Card and Final Disposition Report Submission Requirements enclosures 2, 3 1) 2.b.(l) (9 July 2010) (Cl, 3 May 2011) [hereinafter DODI 5505.11] (requiring reporting of summary court-martial convictions when resulting from a Department of Defense (DOD) law enforcement investigation); see STOCK, supra note 4, at 63.

(110) DODI 5505.1 1, supra note 109, enclosure 4, para. 2.d.(1)-(2). E.g., a summary court-martial conviction for wrongful use of controlled substance may trigger the deportable ground of being a "drug abuser or addict" without having a criminal conviction. INA [section] 237(a)(2)(B)(ii), 8 U.S.C. [section] 1227(a)(2)(B)(ii).

(111) See infra Appendices B, C, F. For denaturalization, the substance of the crime is irrelevant so long as one receives a punitive discharge--a discharge worse than under other than honorable conditions. See supra Part III.A.3.

(112) See Beiliss, supra note 91, at 57-63 (explaining how to determine whether a crime is a crime involving moral turpitude, aggravated felony, and other deportable offenses); USDOJ-OIL MONOGRAPH, supra note 89, app. D (providing a two-step process used to determine immigration consequences of a conviction).

(113) Compare INA [section] 212(a)(2)(B) (stating that an alien is inadmissible when he is "convicted of two or more offenses ... for which the aggregate sentences to confinement were 5 years or more"), with id. [section] 237(a)(2)(A)(i)(II) (stating that an alien is deportable when he is "convicted of a crime for which a sentence of one year or longer may be imposed").

(114) For a good research starting point, the readers should review USDOJ-OIL Monograph, supra note 89.

(115) See supra Part III.A.3 & note 101.

(116) U.S. Dep't of Def., Instr. 1325.07, Administration of Military Correctional Facilities and Clemency and Parole Authorities enclosures 2, H 2.d. (11 Mar. 2013) [hereinafter DODI 1325.07].

(117) Criminal Alien Program, U.S. Immigration & Customs ENFORCEMENT, http://www.ice.gov/criminal-alien-program/ (last visited Jan. 30,2014).

(118) DODI 1325.07, supra note 116, enclosures 2, [paragraph] 2.d.

(119) UCMJ art. 15(2012).

(120) See supra note 105 and accompanying text; see also STOCK, supra note 4, 58-59.

(121) AR 190-45, supra note 109, para. 4-10; DODI 5505.11, supra note 109, enclosures 2, 3 [paragraph] 2.b.(1).

(122) STOCK, supra note 4, at 59 n.5. "[Nonjudicial punishment] can affect a good moral character determination not because they are convictions, but because U.S. Citizenship and Immigration Services (USCIS) is permitted to use its discretion when deciding whether someone has good moral character." Id.

(123) INA [section][section] 328(f), 329(c), 8 U.S.C. [section][section] 1439(f), 1440(c) (2012) (denaturalization for OTH discharge). One should note that there is no reported case of denaturalization solely based on an OTH characterization of service; however, it remains a potential consequence to a military naturalized servicemember.

(124) STOCK, supra note 4, at 67; see supra Parts III.A.1.b and III.A.2.

(125) INA [section] 329(a), 8 U.S.C. [section] 1440(a) (conscientious objector bar to wartime naturalization); see supra Part III.A.2.

(126) For example in the Army, section IV of the Enlisted or Officer Record Brief provides the country of citizenship. Ms. Stock points out that these records often have errors, listing derivative citizens as non-U.S. citizens and listing noncitizens as U.S. citizens. Stock e-mail, supra note 24, cmt. MDS13.

(127) U.S. Dep't of Def., DD Form 1966/1, Record of Military Processing-Armed Forces of the United States sec. I, box 5 (Aug. 2011), available at http://www.dtic.mil/whs/directives/infomgt/forms/eforms/dd1966.pdf.

(128) U.S. Citizenship & Immigration Services, Form N-426, Request for Certification of Military or Naval Service (Apr. 30, 2013), available at http://www.uscis.gov/sites/default/files/files/form/n-426.pdf.

(129) See supra note 50.

(130) STOCK, supra note 4, at 72; Beiliss, supra note 91, at 88-89. Ms. Stocks does warn that the DHS agencies are not necessarily well-versed in military immigration benefits. Stock e-mail, supra note 24, cmt. MDS15.

(131) AILA Military Assistance Program, AM. IMMIGR. LAW. ASS'N (Dec. 19, 2007), http://www.aila.org/content/default.aspx?docid=24108. For more information on AILA Military Assistance Program contact, Ms. Michelle Singleton, at msingleton@aila.org. Id.

(132) E.g., Mr. Terry Spearman, XVIII Airborne Corps Legal Assistance Office, is such an expert within the Army legal community.

(133) See supra note 3 and accompanying text.

(134) INA [section][section] 328-329, 8 U.S.C. [section][section] 1439-1440 (2012); see also STOCK, supra note 4, at 57.

(135) See STOCK, supra note 4, at 58-59, 63, 67.

(136) Beiliss, supra note 91, at 84. Though one may seek post-trial relief under Article 60, UCMJ to alleviate the conviction sentence, the DHS may still pursue removal based on the conviction, regardless of suspension of a sentence. USDOJ-OIL MONOGRAPH, supra note 89, app. C; UCMJ art. 60 (2012).

(137) Vivian Chang, Where Do We Go from Here: Plea Colloquy Warnings and Immigration Consequences Post-Padilla, 45 U. MICH. J.L. Reform 189, 194 (2011) ("Prosecutors in particular have utilized this relationship between criminal and immigration law, often to their significant advantage. If a prosecutor is aware of a defendant's noncitizen status, he or she is able to start off plea negotiations in a particularly powerful position, because noncitizen defendants may be interested in serving longer sentences in order to avoid adverse immigration consequences, or vice versa.").

(138) Id. at 194.

(139) U.S. Dep't of Army, Reg. 635-200, Active Duty Enlisted Administrative Separations para. 1-39 (6 June 2005) (RAR 6 June 2011) [hereinafter AR 635-200], One should note that the regulation still refers to the obsolete Immigration & Naturalization Service, which were dismantled when the DHS immigration agencies were created. See supra Part II.B. Hence, until the regulation is updated with a new point of contact, the author recommends sending the notice to the ICE, DOJ's Office of Immigration Litigation, and the local U.S. Attorney's office for action.

(140) AR 635-200, supra note 139, para. 1-39.

(141) Drax v. Reno, 338 F.3d 98, 99 (2d Cir. 2003) ("This case vividly illustrates the labyrinthine character of modern immigration law--a maze of hyper-technical statutes and regulations that engender waste, delay, and confusion for the Government and petitioners alike.").

(142) See supra Part II (explaining the immigration process).

(143) See Public Charge, U.S. CITIZENSHIP & IMMIGRATION SERVS. (Sept. 3, 2009), http://www.uscis.gov/green-card/green-card-proeesses-and-procedures/ public-charge.

(144) 50 U.S.C. app. [section][section] 451-473 (2012).

(145) Id. app. [section][section] 1-44.

(146) Public Charge, U.S. CITIZENSHIP & IMMIGRATION Servs. (Sept. 3, 2009), http://www.uscis.gov/green-card/green-card-processes-and-procedures/publiccharge.

(147) Exec. Office of Immigration Rev., Immigration Judge Benchbook, U.S. Dep't OF JUSTICE, http://www.justice.gov/eoir/vII/benchbook/ templates/benchbook%20law%20on%20inadmissibility%20and%20removability.htm (last visited Jan. 29,2014).

(148) U.S. DEP'T OF State, 9 FOREIGN AFF. Manual sec. 40.21(a) n.2 (Oct. 06, 2011), available at http://www.state.gov/documents/ organization/86942.pdf.

(149) INA [section] 101(a)(43), 8 U.S.C. [section] 1101(a)(43) (2012).

(150) See Appendix E (Definition of "Aggravated Felony" in the INA).

(151) INA [section] 101(f), 8 U.S.C. [section] 1101(f) (2012) (emphasis added).

(152) Aguilar-Turcious v. Holder, 740 F.3d 1294, 1300 n.8 (9th Cir. 2014) ("We have found no other case from our circuit or our sister circuits discussing the application of the categorical and modified categorical approaches to convictions under the UCMJ, although clearly the federal government does rely on UCMJ convictions to remove citizens.").

(153) This chart is inspired by and relies on the works by Margret D. Stock and Richard D. Beiliss as a basis. STOCK, supra note 4, at 75-76; Beiliss, supra note 91, at 57-63.

(154) Because of the DHS's broad discretionary authority to determine whether one lacks good moral character, this chart will only mention naturalization denial when it is specifically enumerated as evidencing lack of good moral character. See supra Appendix F.

(155) Because the denaturalization ground for military-naturalized servicemember depends solely on the characterization of service, it will not be discussed in this chart.

(156) 8 U.S.C. [section] 1101(f)(8) (2012).

(157) See USDOJ-OIL MONOGRAPH, supra note 89, app. D, at 6-25. Federal courts and BIA use the two-step method, "categorical" and then "modified categorical," to determine whether a federal/state criminal conviction constitutes a criminal ground for removal under the INA. Id. app. D. In the first step, "categorical" approach (or analysis), the court determines whether the elements of the criminal conviction matches the elements of the "generic definition" of the criminal removal ground. Id. at D-1 to D-2. If the elements matches or is narrower than the generic definition of the INA's removal ground, the court will find the conviction alone is sufficient to find the removal ground triggered without looking at the underlying conduct resulting in the conviction; however, if the elements is broader than the generic definition, it will go to the second step of "modified categorical" approach. Id. at D-2 to D-3. Under the "modified categorical" approach, the court will look to the underlying conduct of the criminal conviction and determine whether the generic definition of the INA's criminal grounds are triggered by the actual conduct, not the elements of the conviction. Id. at D-3 to D-4. If the INA criminal ground of removal is a specific act or circumstances and does not have a generic definition, the courts apply the "circumstance-specific" approach, which is to look at the underlying conduct without regard to the elements of the conviction. Id. at D-5 to D7. Readers are recommended to review the DOJ's monograph, which provides excellent explanation. See id.

Major Takashi Kagawa, Judge Advocate, U. S. Army. Presently assigned as Assistant Executive Officer, Military Law and Operations, Office of The Judge Advocate General, U. S. Army, Washington, D.C. LL.M., 2014, The Judge Advocate General's School, U.S. Army, Charlottesville, Virginia; J.D.. 1998, New York Law School at New York; B.A., 1995, The Citadel, The Military College of South Carolina, at Charleston. Member of the bars of the Supreme Court of the United States, the Court of Appeals for the Armed Forces, and New York. This article was submitted in partial completion of the Master of Laws requirements of the 62d Judge Advocate Officer Graduate Course. The author wishes to thank the following people who assisted in the drafting of this article to include: Major M. Eric Bahm, Lieutenant Colonel Jonathan E. Cheney, Major Keirsten H. Kennedy, Ms. Margaret D. Stock, Esq., and Ms. Glenda M. Regnart, Esq.
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Author:Kagawa, Takashi
Publication:Army Lawyer
Date:Oct 1, 2014
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