Inadmissibility Based on Admissions of Criminal Conduct – INA§212(a)(2)(A)(i)

It is well settled and understood that a criminal conviction may form the basis of determining an individual inadmissible to the United States under the Immigration and Nationality Act (“Act”). In particular, INA § 212(a)(2)(A)(i) provides that arriving aliens are inadmissible to the U.S. if they have been convicted of: (I) a crime involving moral turpitude, or an attempt or conspiracy to commit such a crime or (II) a violation of a controlled substance offense of any State, the United States, or a foreign country.

It is surprising, however, that under INA § 212(a)(2)(A)(i), an individual can also be rendered inadmissible for merely admitting to criminal activity even though they may never have been convicted in a court of law for those offenses. Specifically, except as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of - (I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime, or (II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substance Act (21 USC 802)), is inadmissible.

On its face, the statute indicates that a factual admission of criminal activity by an individual is sufficient to support a criminal charge of inadmissibility. However, ascertaining whether or not an individual has “admitted to committing acts that constitute the essential elements” of such crimes (moral turpitude or a controlled substance offense) is far more complicated.

Fortunately, the Board of Immigration Appeals (“BIA”) has issued case law dictating certain requirements that an “admission” must meet to effectively support a charge of inadmissibility under INA § 212(a)(2)(A)(i). The BIA explained that these rules were not based on any specific statutory requirement but have evolved in an effort to insure a fair hearing and to preclude a later claim of unwitting entrapment. Matter of K, 7 I&N Dec 594, 597 (BIA 1957), citing Matter of J-, 2 I&N Dec 285 (BIA 1945), modified by, Matter of E-V-, 5 I&N Dec 194 (BIA 1953). While a majority of these rules have been defined involving crimes involving moral turpitude, they also apply equally to cases involving controlled substance offenses. Pazcoguin v. Radcliff, 292 F.3d 1209 (9th Cir 2002).

In 1957, the BIA issued a landmark precedent decision in which it set forth the following three-part test for determining the legal sufficiency of an “admission” under INA:

  1. The admitted conduct must constitute the essential elements of the crime in the jurisdiction where it occurred;

  2. The applicant must have been provided with a definition and the essential elements of the offense prior to his admission; and

  3. The admission must be voluntary.

Matter of K, 7 I&N Dec. 594. Unless each of these three (3) elements are met, any “admission” made to a U.S. immigration officer cannot form the basis of a charge of inadmissibility. Additionally, the BIA held that in order for an admission to be valid for INA § 212(a)(2)(A)(i) purposes, it must be unequivocal and complete. Matter of L, 2 I&N Dec. 486 (BIA 1946); Matter of E-N-, 7 I&N Dec. 153 (BIA 1956).

In response to the BIA’s precedent decisions, requirements have been developed for immigration officers to adhere to while obtaining admissions. For example, the Department of State in the FAM issued procedural requirements consular officers must follow when eliciting admissions to a previous criminal offense that mirror the requirements established by these decisions. Specifically, 9 FAM 40.21(a) N5.1 requires officers to:

  1. Give the applicant a full explanation of the purpose of questioning;

  2. The crime the applicant has admitted to must appear to constitute moral turpitude based on the statute and the applicant’s statements;

  3. Before commencing questioning, the applicant must be provided an adequate definition of the crime, including all essential elements in terms that the individual understands, making certain the definition conforms to the law of the jurisdiction where the offense is alleged to have been committed;

  4. The applicant must admit to all factual elements constituting the crime; and

  5. The applicant’s admission must be explicit, unequivocal and unqualified.

Individuals deemed inadmissible under INA § 212(a)(2)(A)(i) based on an “admission” will forever require a nonimmigrant waiver to enter the U.S. This is a serious consequence and as such, we encourage foreign nationals who have been charged with inadmissibility based on an “admission” to a U.S. immigration officer, who never appeared before a judge or was convicted in a court of law, to consider having their situation reviewed to determine whether all the requirements of an “admission” were properly met. If you were found inadmissible under INA § 212(a)(2)(A)(i), contact our office to have us evaluate whether anything can be done to vacate your “admission” and/or discuss your eligibility for the waiver you would require to enter the U.S.

Vacating Criminal Convictions under the Immigration and Nationality Act ("INA")

The Immigration and Nationality Act (“INA”) restricts certain classes of individuals from being able to enter the U.S. - whether temporarily or permanently – by deeming them ‘inadmissible’ to the United States under INA §212. Conversely, the INA also has certain provisions which can render individuals who are already present in the U.S. – whether lawfully or unlawfully – ‘removable’ from the United States under INA §237. One class in particular that is vulnerable to being permanently ‘inadmissible’ and/or ‘removable’ are individuals who have certain prior criminal convictions.

Specifically, pursuant to INA § 212(a)(2)(A)(i) (which tends to be a common ground of inadmissibility but is not the sole ground of criminal inadmissibility): Any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of: (I) a crime involving moral turpitude or an attempt or conspiracy to commit such a crime, or (II) a violation of any law or regulation of a State, the United States, or a foreign country relating to a controlled substance, is inadmissible.

The various grounds of removability based on criminal convictions can be found in INA §237.

Crimes Involving Moral Turpitude

A crime involving moral turpitude (“CIMT”) is generally defined as a crime that is “inherently base, evil, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.” The definition of a CIMT is somewhat difficult to understand by many; however, the following crimes have been commonly found by courts to be CIMTs: Assault (in the second degree), Battery (aggravated), Child/Spouse Abuse, Criminal Reckless Conduct, Driving Under the Influence (aggravated), Arson, Blackmail, Theft, Possession of Stolen Property, and Bribery. However, since each state statute differs, and each case is unique factually, foreign nationals are urged to have an experienced immigration attorney review their case to ensure/confirm whether or not their specific conviction is a CIMT. Additionally, even if the conviction is a CIMT, an experienced immigration attorney can determine whether the conviction may fall under one of two the enumerated exceptions (Petty Offense Exception and/or Juvenile Exception) provided under INA §212.

Convictions for Violations of Federal, State, or Foreign Drug Laws The INA is exceptionally harsh when it comes to dealing with drug related convictions because of the severe negative impact that drugs have on our society. For example, while the INA provides for a nonimmigrant waiver for drug conviction(s) to allow individuals to visit the United States under INA §212(d)(3), it does not provide for an immigrant waiver for drug convictions other than a single offense of simple possession of 30 grams or less of marijuana. Thus, while individuals with drug convictions may apply to temporarily enter the United States with non-immigrant status, they will be forever barred from immigrating to the United States (beyond the aforementioned exception) because of their previous drug-related conviction.

Inadmissibility Based on Conviction

The INA defines the term “conviction” as: “a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where— (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and

(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.” INA § 101(a)(48)(A).

What does this mean? Well a conviction itself is easy enough to understand – but there may be situations in which the foreign national has been advised that the case has been dismissed pursuant to a conditional discharge or some other means, but an underlying plea of guilt remains. The underlying plea of guilt could still be a ‘conviction’ for immigration purposes.

Inadmissibility Based on Admission

Surprisingly, under INA § 212(a)(2)(A)(i), an individual can be found inadmissible, even if they have not been convicted in a court of law, as long as they “[admit to] having committed, admit [to] committing acts which constitute the essential elements of ” a CIMT or a controlled substance related offense. On its face, INA § 212(a)(2)(A)(i) seems to run contrary to well-established constitutional principles, such as due process; however, the INA is intentionally written this way to give immigration officers greater authority to prevent individuals (who may have committed a crime, but were not arrested or convicted for it) from entering the United States. When an immigration officer makes a finding of inadmissibility based on an admission, it is equal to that of a conviction by a court of law for immigration purposes and will remain on your immigration record and forms a permanent ground of inadmissibility. However, there are procedural safeguards in place within the law to ensure that any such ‘admission’ is legally sufficient.

Our Services

In the past, our firm has successfully assisted numerous clients in clearing up/resolving their inadmissibility. In some situations, it was a matter of establishing that the disposition of their criminal matter did not result in a conviction for immigration purposes. In some, it was a matter of reminding immigration officials that while the individual had a conviction for immigration purposes, their conviction fell into an enumerated exception. For others, it has been discussing the client’s case in detail with them and determining whether, through the assistance of a criminal attorney, their conviction could be vacated because there seems to be a technical/legal defect in the underlying criminal proceedings which forms the basis of their inadmissibility. If the conviction is vacated, we then prepare a legal memo explaining to the proper authority (whether a U.S. Consulate abroad or U.S. Customs & Border Protection) that the foreign national is no longer inadmissible and that the appropriate records be updated to reflect the same.

And for the fortunate few that have contacted us during their criminal proceedings, we have been able to work with their criminal attorney to help resolve their criminal matters in a way that does not render them inadmissible to the U.S.

What should you take away from this posting? If you are currently in criminal proceedings and are a foreign national, contact our office to team up with your criminal attorney to avoid a conviction which can render you removable and/or inadmissible. If you have completed your criminal proceedings and have a conviction, contact our office to have us evaluate your current immigration status and options moving forward.