(A)  What Constitutes an Admission.  As a matter of practice,[52] in order to take an admission sufficient to sustain a finding of inadmissibility equivalent to that of a noncitizen convicted of a crime of moral turpitude (CMT) or controlled substances offense (CSO), an officer of the DOS, DHS,[53] EOIR,[54] or a police officer[55] must:               

 

(1)     Record the entire Q&A for the purpose of creating a verbatim transcript for the record.[56]

 

(2)     Place the noncitizen under oath.[57]

 

(3)     Explain the purposes of the interrogation (i.e., to obtain an admission of committing the crime for inadmissibility purposes, or confession for criminal purposes) to ensure that the statements are voluntarily and freely made.[58] If the officials take any action to threaten or coerce the noncitizen, the resulting admission or confession may be attacked as involuntary or the product of entrapment.[59]

 

(4)     Provide to the noncitizen an adequate definition of the crime, including all essential elements, in terms the noncitizen can understand,[60] before the questioning begins.[61]  This list of elements must conform to the law of the jurisdiction where the offense is alleged to have been committed, and it must be explained in understandable terms.[62]  A “categorical” analysis is applied, and if the minimum conduct punishable under the elements of the law the noncitizen admits violating is not a CMT, the noncitizen cannot be found inadmissible even if the offense in fact was a CMT.[63]

(5)     Ask the noncitizen admit each of the facts necessary to establish the essential elements of the crime.[64]  According to the Foreign Affairs Manual, this is not the same as asking the noncitizen to admit all the elements of the offense.  Using the example of perjury, the Foreign Affairs Manual indicates that the noncitizen must admit to all the fact-based elements (i.e., knowingly making a false statement under oath), but does not need to admit the law-based elements (i.e., that the oath was duly administered, as required by law, and that the false statement was material).[65] 

 

(6)     Ensure the admission of those facts is explicit, unequivocal, and unqualified.[66]  They must also be affirmative or express.[67]

 

(7)     Ensure that (where an admission is taken independent of any other evidence), the admission is developed to the point where “there is no reasonable doubt that the alien committed the crime in question.”[68]

 

The acts must constitute a crime[69] under the law of the United States,[70] in addition to constituting a crime in jurisdiction in which the acts were committed.[71]  Of course, the offense admitted must also constitute a CMT or CSO.[72]

WARNING:  In Pazcoguin v. Radcliffe,[73] the Ninth Circuit found that an admission of marijuana use to a physician was sufficient to sustain a finding that the noncitizen had admitted “committing acts which constitute the essential elements” of a controlled substances offense under Philippine law. The majority held that the admission to the physician was sufficient, even though the physician had not described the elements of the offense. 

 

The majority suggested because the doctor “had no reason to suspect that Pazcoguin would admit to having used marijuana, and her examination was not conducted for the purpose of obtaining any such admission” the admission requirements did not need to be met.  The dissent, however, pointed out that those requirements had been applied in the case of an alleged admission by a police officer in Matter of K,[74] and that the original purposes of ensuring “fair play” are not met by waiving the admission requirements for anyone other than an enforcement officer.  To date no published cases have agreed with, or relied upon, Pazcoguin in respect to this holding.

[52] Matter of K, 7 I. & N. Dec. 594, 597 (BIA 1957) (“The rules which were promulgated were not based on any specific statutory requirement but appear to have been adopted for the purpose of insuring that the alien would receive fair play and to preclude any possible later claim by him that he had been unwittingly entrapped into admitting the commission of a crime of moral turpitude.”).

[53] However, the DHS may not seek to exclude a noncitizen as one who has admitted commission of a controlled substance offense, based solely on having signed the “Agreement to Pay Monetary Penalty” in conjunction with the United States Customs Service “Zero Tolerance Program.” Legal Opinion § 95-4, Excludability under “Zero Tolerance Program’’ of U.S. Customs Service, No. HQ 235-P (Jan. 20, 1995).

[54] Matter of C G, 1 I. & N. Dec. 70 (admission made before “board of special inquiry”).

[55] Foreign Affairs Manual Note 5.7 to 22 C.F.R. § 40.21(a).

[56] Ibid.

[57] Foreign Affairs Manual Note 5.1 to 22 C.F.R. § 40.21(a).

[58] Matter of G, 1 I. & N. Dec. 225 (BIA 1942); Matter of J, 2 I. & N. Dec. 285 (BIA 1945); Matter of EV, 5 I. & N. Dec. 194 (BIA 1953); Matter of G, 1 I. & N. Dec. 225, 227 (BIA 1942) (where there has been a refusal to make an admission, it is not competent to extract an admission that is not voluntary on the part of the noncitizen, as by insistent questioning).

[59] Foreign Affairs Manual Note 4.9 to 22 C.F.R. § 40.21(a).  The regulations instruct consular officers not to threaten noncitizens or make promises when attempting to elicit an admission. Foreign Affairs Manual Note 5.9 to 22 C.F.R. § 40.21(a).

[60] Merely translating the legal text of a statute into the noncitizen’s native language is insufficient.  Matter of GM, 7 I. & N. Dec. 40 (BIA 1956).

[61] Foreign Affairs Manual Note 5.1 to 22 C.F.R. § 40.21(a).

[62] Matter of K, 7 I. & N. Dec. 594, 596-98 (BIA 1957) (admission to police officer insufficient because police officer failed to provide definition and essential elements of the crime).  But see Pazcoguin v. Radcliffe, 292 F.3d 1209, 1216-18 (9th Cir. June 25, 2002).

[63] Matter of R, 2 I. & N. Dec. 819, 828-829 (BIA 1947).

[64] Matter of GM, 7 I. & N. Dec. 40 (BIA 1955) (to sustain a finding of inadmissibility as one who has admitted acts constituting the essential elements of a crime involving moral turpitude, the noncitizen must have admitted all the elements of the crime involved and must have been furnished with a definition of such crime in understandable terms).  The admission of acts that lead only to an inference of the commission of a crime involving moral turpitude is not sufficient.  Howes v. Tozer, 3 F.2d 849 (1st Cir. 1925).  See also Matter of CG, 1 I. & N. Dec. 70 (BIA 1941) (when a noncitizen in applying for admission falsely testifies that a woman accompanying him is his wife, whereas in fact he intended to resume an illicit relationship with her, he is not inadmissible as a person admitting the commission of perjury, a crime involving moral turpitude, since his false testimony was not material to his right to enter the United States); Matter of C, 1 I. & N. Dec. 14 (BIA, AG 1940) (record discloses merely that respondent had lied as to his employment but had not admitted the essential elements of the crime of perjury).

[65] Foreign Affairs Manual Note 5.10 to 22 C.F.R § 40.21(a). The problem with this rule is that admitting merely the factual elements does not necessarily equate with admitting commission of a CMT.  In the perjury context, the noncitizen may admit to having knowingly made a false statement under oath, but unless the statement was material, he has not admitted to commission of a CMT.  See Matter of CG, 1 I. & N. Dec.  70 (BIA 1941).

[66] Foreign Affairs Manual Note 5.1 to 22 C.F.R § 40.21(a); Matter of L, 2 I. & N. Dec. 486 (BIA 1946) (to constitute a ground of inadmissibility, the admission of the commission of an offense involving moral turpitude must be voluntary, unequivocal, and unqualified).

[67] Matter of GM, 7 I. & N. Dec. 40 (BIA 1956) (that noncitizen did not deny committing an element of an offense is not the same as an admission).

[68] Foreign Affairs Manual Note 5.11 to 22 C.F.R. § 40.21(a).

[69] Cf. United States v. Karaouni, 379 F.3d 1139 (9th Cir. Aug. 24, 2004) (“A defendant may not be convicted on the basis of an admission that he committed a crime, when the actions that he believed to be unlawful did not, in fact, violate any statute. Torcia, 1 Wharton’s Criminal Law § 79 (15th ed., 1993) (“It is fundamental that conduct which is not penally prohibited does not become criminal simply because the actor believed his conduct constituted a crime.”).”)

[70] Matter of McNaughton, 16 I. & N. Dec. 569, 572 (BIA 1978) (Canadian conviction for conduct that was illegal under Canadian law: “[W]hen a foreign conviction is the basis for a finding of inadmissibility, the conviction must be for conduct which is deemed criminal by United States standards.  It is a necessary element that the act underlying the conviction be something forbidden by United States law.”).

[71] 22 C.F.R. § 40.21(a)(1), 64 Fed. Reg. 55417 (Oct. 13, 1999); Pazcoguin v. Radcliffe, 292 F.3d 1209, 1216 (9th Cir. June 25, 2002); Matter of K, 7 I. & N. Dec. 594 (BIA 1957) (an admission of a crime involving moral turpitude must involve an admission of acts constituting each of the essential elements of a crime involving moral turpitude, and must have been made after the noncitizen had been furnished a definition of the offense in understandable terms, since that is required to insure a fair hearing and to preclude a later claim of unwitting entrapment); Matter of L, 1 I. & N. Dec. 666 (BIA 1943) (admission of crime involving moral turpitude irrelevant unless law in jurisdiction where committed forbids the conduct and the conduct involves moral turpitude); Matter of P, 1 I. & N. Dec. 33 (BIA, AG 1941) (admission of stealing money in Italy does not constitute admission of crime involving moral turpitude when there is no evidence of criminal intent or that noncitizen’s conduct constituted a crime).  But see Matter of G, 5 I. & N. Dec. 559 (BIA 1959) (noncitizen inadmissible for prostitution notwithstanding that the acts took place in former French Morroco where noncitizen’s actions were legal).

[72] Matter of N & B, 2 I. & N. Dec. 206 (BIA 1944) (admission of making false statement before Board of Special Inquiry concerning matter which, if admitted, would not have triggered inadmissibility was not material, and therefore could not have constituted perjury in violation of 18 U.S.C. § 231, and was therefore not an admission of a crime involving moral turpitude).

[73] Pazcoguin v. Radcliffe, 292 F.3d 1209 (9th Cir. 2002).

[74] Matter of K, 7 I. & N. Dec. 594 (BIA 1957).

BIA

CONTROLLED SUBSTANCES -- INADMISSIBILITY -- ADMISSION IN LIEU OF CONVICTION
In the absence of a conviction, a finding of guilt cannot be based on inferences of facts that the noncitizen has failed or refused to admit. Matter of GM, 7 I. & N. Dec. 40 (Att'y Gen. 1956); Matter of EN, 7 I. & N. Dec. 153 (BIA 1956).

INADMISSIBILITY - ADMISSION OF FACTS - FINDING OF GUILT CANNOT BE BASED ON INFERENCES FROM FACTS RESPONDENT REFUSES TO ADMIT
In the absence of a conviction, a finding of guilt cannot be based on inferences of facts that the noncitizen has failed or refused to admit. Matter of GM, 7 I. & N. Dec. 40 (Att'y Gen. 1956); Matter of EN, 7 I. & N. Dec. 153 (BIA 1956).

Sixth Circuit

ALFORD PLEA
United States v. Tunning, 69 F.3d 107 (6th Cir. 1995) (''Alford'' plea refers to defendant who pleads guilty but maintains that he is innocent).

Ninth Circuit

POST CON RELIEF - STATE REHABILITATIVE RELIEF - IMMIGRATION EFFECTS - NINTH CIRCUIT - ADMISSION OF DRUG OFFENSE
Romero v. Holder, 568 F.3d 1054, 1062 (9th Cir. 2009) ("the facts underlying a conviction that would have been eligible for relief under the FFOA, but was expunged under a state rehabilitative statute, cannot serve as an admission of a drug offense, statutorily barring a finding of good moral character under 8 U.S.C. 1101(f)(3).").

POST CON RELIEF - STATE REHABILITATIVE RELIEF - IMMIGRATION EFFECTS - NINTH CIRCUIT - ADMISSION OF DRUG OFFENSE
Romero v. Holder, 568 F.3d 1054, 1062 (9th Cir. 2009) ("the facts underlying a conviction that would have been eligible for relief under the FFOA, but was expunged under a state rehabilitative statute, cannot serve as an admission of a drug offense, statutorily barring a finding of good moral character under 8 U.S.C. 1101(f)(3).").

INADMISSIBILITY - ADMISSIONS OF CONDUCT
Garcia-Lopez v. Ashcroft, 334 F.3d 840 n.4 (9th Cir. June 26, 2003) (respondent's representative cannot in proceedings concede a conviction that is not a conviction: "The INS also contends that Garcia-Lopez "admitted" that he was convicted of a felony because, in support of the initial application, Garcia-Lopez's accredited representative stated that Garcia-Lopez had received a felony sentence. As an initial matter, the representative's statement was patently inaccurate, as Garcia-Lopez was never actually sentenced. More importantly, Garcia-Lopez's belief about the nature of his offense is irrelevant to the purely legal question of how the offense was categorized or what the maximum penalty was. Similarly, the statement of Garcia-Lopez's representative as to a matter of law has no legal effect. See Matter of Ramirez-Sanchez, 17 I & N Dec. 503 (BIA 1980). The INS's contention that Garcia-Lopez is bound by this statement must fail.").

Other

CRIMES OF MORAL TURPITUDE - ADMISSIONS
22 C.F.R. 40.21(a)(1) ("A Consular Officer may make a finding of ineligibility under INA 212(a)(2)(A)(i)(I) based upon an alien's admission of the commission of acts which constitute the essential elements of a crime involving moral turpitude, only if the acts constitute a crime under the criminal law of the jurisdiction where they occurred. However, a Consular Officer must base a determination that a crime involves moral turpitude upon the moral standards generally prevailing in the United States.").