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.

ERO and Underlying Charge of Inadmissibility Based on Fraud Vacated by CBP for Canadian Citizen

Our Client, a Canadian citizen, was an engineer who also worked part-time for a test-prep company in Canada as an Instructor. The test-prep company sought to send him to the U.S. for a weekend trainiForm I-601ng assignment where he would be training other prospective instructions. Being a Canadian citizen who is visa-exempt, our Client presented himself at a POE for inspection and admission in B-1 status to carry out this short-term assignment for his Canadian employer. When questioned at the POE, he explained his purpose – he was seeking to enter the U.S. to complete a training assignment on behalf of his Canadian employer for the weekend and would be returning home to Canada at its conclusion. However, he was incorrectly advised that he was not qualified to enter the U.S. in B-1 status to carry out his enumerated purpose and denied him entry.

After leaving the POE, and feeling pressured to complete the training assignment and not being advised that he could not apply again, our Client thought to seek entry at another POE. The next day, he appeared at another POE and this time, he only indicated that he was seeking to enter the U.S. to shop. However, the CBP Officer reviewed our Client’s CBP records and noticed that our Client had been denied entry the previous day and sent him to secondary inspection. During secondary inspection, our client retracted his previous statement and truthfully informed the officer that his primary purpose was still to enter the United States to complete the training assignment for his Canadian employer. At that time, our Client was issued an Order of Expedited Removal under INA §235(b)(1) based on the underlying charges of inadmissibility under INA §§ 212(a)(6)(C)(i) [Fraud/Material Misrepresentation] and (7)(A)(i)(I). Consequently, our Client was now permanently inadmissible to the United States under INA § 212(a)(6)(C)(i), and inadmissible for a five (5) year period under INA § 212(a)(9)(A)(i) based on his order of Expedited Removal. To re-enter the U.S., our Client would now minimally require a non-immigrant waiver pursuant to INA §212(d)(3) [Form I-192] or an immigrant waiver pursuant to INA §212(i) [Form I-601] to waive his inadmissibility under INA §212(a)(6)(C)(i), depending on the purpose of his entry. In addition, if he wanted to re-enter the U.S. within the five (5) year bar imposed as a consequence of the Order of Expedited Removal, our Client would need a waiver pursuant to INA §212(a)(9)(A)(iii) [Form I-212].

Concerned about his ability to re-enter the U.S. in the future, especially as a professional engineer, our Client and his employer contacted our office. We went over the incidents very carefully with our Client, reviewed the paperwork provided by CBP (Record of Sworn Statement, Order of Expedited Removal, etc.), and reviewed the purpose of our Client’s proposed entry into the U.S. Our review revealed that CBP had erred in denying our Client entry in the first place, as he had been admissible in B-1 (in lieu of H-1B) status. In addition, our review revealed that while our Client had indeed made a false statement to CBP, his false statement did not meet the definition of a ‘material’ misrepresentation as required by the applicable law/guidance. Specifically, the false statement was not material because it did not ‘tend to shut off a line of inquiry’ since the information that our Client was presumably intending to hide was available to them in their own internal records.

We submitted a detailed legal brief, together with supporting documentation, to CBP and requested that they review this incident to determine whether they agreed that the Order of Expedited Removal and the underlying charges of inadmissibility had been improvidently issued. After several weeks, we received notification from CBP that they agreed with our analysis and they would update CBP’s records to vacate the Order of Expedited Removal, as well as the underlying charge of inadmissibility under INA §212(a)(6)(C)(i). As a result, our Client is no longer inadmissible to the U.S.

Seeking to Terminate Removal Proceedings to Apply for Naturalization

Lawful Permanent Residents who have been placed in removal proceedings (whether it is because they are subject to ground of removability under INA §237 or grounds of inadmissibility under INA §212) may be able to request termination of their removal proceedings under 8 C.F.R. § 1239.2(f) so that he or she can pursue an application for naturalization with U.S. Citizenship & Immigration Services (USCIS).  This defense to removal is available to LPR’s who can establish prima facie eligibility for naturalization as well as exceptionally appealing or humanitarian factors. 

Normally, in order to demonstrate that the LPR is prima facie eligible for naturalization, a draft of the Form N-400, Application for Naturalization, should be included with the Motion to Terminate with the Immigration Court.  Some ICE Chief Counsel’s Office also may want to see evidence that the application has already been filed with USCIS, such as the N-400 Receipt Notice issued by USCIS. However, ultimately, if the Immigration Court declines to terminate removal proceedings, USCIS may not grant naturalization to an LPR in removal proceedings pursuant to INA §318.

While most of the eligibility requirements can presumably be demonstrated, the most debatable one is usually the ‘good moral character’ requirement.  For most LPR’s, pursuant to INA § 316(a), an application for naturalization need only demonstrate that he or she has been a person of good moral character during the five (5) year continuous residence requirement. Thus, any act that establishes a lack of good moral character that has been committed outside of the five (5) year requirement is not a statutory bar to naturalization under INA §101(f).  (Some LPR’s have a reduced continuous residence requirement and thus need to establish their ‘good moral character’ during that period.)

If the LPR has been convicted of an aggravated felony, they are permanently ineligible for naturalization and will not be able to seek to terminate their removal proceedings through this avenue.  However, if such aggravated felony conviction occurred prior to November 29, 1990, the LPR is not statutorily barred from establishing good moral character for purposes of naturalization.  Specifically, pursuant to the USCIS’ Adjudicator’s Field Manual (“AFM”) Ch. 73.6(a)(3)(A): 

“[a]n aggravated felony conviction prior to November 29, 1990, does not preclude a finding of good moral character for purposes of naturalization… Rather, a conviction of an aggravated felony prior to November 29, 1990 should be considered in combination with the applicants present day moral character measured against the standards of the community. Thus, if an applicant's actions during the statutory period do not reflect reform and rehabilitation, then the applicant may not be able to demonstrate good moral character during the statutory period.”

Thus, pursuant to USCIS AFM Ch. 73.6(a)(3)(A), an LPR with an aggravated felony conviction from prior to November 29, 1990 is not permanently precluded from establishing good moral character for the purposes of naturalization. Instead, when adjudicating the LPR’s naturalization application, USCIS must weigh the LPR’s conviction against their reformation since that time and their present day strong moral character.

In addition to establishing their prima facie eligibility for naturalization, the LPR also has to provide evidence that their case involves exceptionally appealing and humanitarian factors.  These factors can include, but are not limited to, the LPR’s length of residence in the U.S., their U.S. citizen or LPR family members, evidence of reformation or rehabilitation since the LPR’s conviction(s). 

In an ideal world, the Immigration Court will terminate removal proceedings, without prejudice.  (Without prejudice means that the government may seek to reinstate removal proceedings in the future – in this example, if the naturalization application is ultimately denied by USCIS, the government can put the LPR back into removal proceedings.)  Once the removal proceedings are terminated, the LPR can conclude their naturalization application process through USCIS.  If approved for naturalization, the LPR will become a U.S. citizen and will no longer be subject to grounds of removability or inadmissibility in the future. 

Petty Offense Exception to CIMT's

Under INA §212(a)(2)(A)(i)(I), a foreign national who has committed a crime involving moral turpitude (CIMT) is inadmissible. In order to overcome this inadmissibility, the foreign national must obtain either a non-immigrant waiver under INA §212(d)(3) or an immigrant waiver under INA §212(h).

However, if the foreign national’s sole conviction for a CIMT falls under the enumerated ‘Petty Offense Exception’ found under INA §212(a)(2)(A)(ii)(II), the foreign national will not be inadmissible and thus, will not require a waiver to re-enter the United States.

The Petty Offense Exception applies when: 1. the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year; and 2. if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).

If the Petty Offense Exception applies, the foreign national needs to establish their eligibility for such exception to the satisfaction of the Consular Officer and/or U.S. Customs & Border Protection Officer. In order to meet this burden, the foreign national should have certified copies of the disposition, as well as copies of the relevant statute and punishment range, available for the Officer’s review. As a reminder, the relevant statute and punishment range should be the version that was applicable when the foreign national was convicted.

If you would like to determine whether your conviction may fall under the Petty Offense Exception, please contact our office to schedule a consultation - we can determine whether your conviction is a 'conviction' for immigration purposes, whether the conviction truly meets the definition of a CIMT, and whether the Petty Offense Exception applies.