Absent evidence of political motivation for a wrongful prosecution, the adjudicator cannot look behind a conviction to determine whether the applicant was guilty of the offense for purposes of determining inadmissibility under INA 212(a)(2)(A)(i)(I), although evidence of a wrongful conviction can be relevant to waiver considerations. 9 FAM 40.21(A).



In challenging a foreign conviction counsel can:



A. Argue that the foreign conviction documents were not properly authenticated (8 C.F.R. 1287.6(b)), or were not admissible or reliable evidence of the record of conviction (INA 240(c)(3)(B); 8 C.F.R. 1003.41).



B.Argue that the foreign conviction was fundamentally unfair, i.e., that the applicant was abused by the police and there were not adequate procedural safeguards to ensure a reliable conviction.



C.Argue that the conviction was for a purely political offense. (See, e.g., INA 212(A)(2)(a)(i) (CMT)).



D.Establish that the evidence upon which the conviction was based was improper. Evidence against an alien must, at a minimum, be "probative" and "fundamentally fair." Ezeagwuna v. Ashcroft, 325 F.3d 396, 405 (3d Cir. 2003). As the Third Circuit Court of Appeals has stated, "fairness is closely related to the reliability and trustworthiness of the evidence." Id. at 405. United States courts have always scrutinized whether evidence has been obtained in a manner that satisfies fundamental fairness. See, e.g., Hutto v. Ross, 429 U.S. 28 (1976); Schneckloth v. Bustamonte, 412 U.S. 218 (1973); United States v. Abu Ali, 528 F.3d 210 (4th Cir. 2008); United States v. Karake, 443 F. Supp. 2d 8 (D.C. Dist. Ct. 2006); United States v. Marturo, 982 F. 2d 57 (2d Cir. 1992); United States v. Santos-Garcia, 313 F.3d 1073, 1079 (8th Cir. 2002); United States v. Marzook, 435 F. Supp. 2d 708 (N.D. Ill. 2006). This includes scrutiny of foreign convictions. In a case involving sentence enhancement imposed on account of a prior drug conviction in the Philippines, the Third Circuit Court of Appeals carefully analyzed whether the defendants foreign conviction was "obtained in a manner inconsistent with concepts of fundamental fairness and liberty endemic in the Due Process Clause of the Fifth Amendment of the United States Constitution." United States v. Kole, 164 F.3d 164, 171 (3d Cir. 1998). Similarly, a court ruling on whether a Japanese conviction could be used as a predicate offense held, "Given the uncertainty surrounding foreign convictions, a defendant should have an opportunity to challenge those convictions which were obtained in such a manner as to raise serious doubts about the credibility of the fact-finding process and, thus, to render it fundamentally unfair." U.S. v. Small, 183 F. Supp. 2d 755, 762 (W.D. Penn. 2002).



E. A foreign conviction in absentia cannot be considered in determining whether an alien is inadmissible for a crime involving moral turpitude. 22 C.F.R. 40.21(a)(4). Although the Board has stated that a foreign conviction need not conform exactly to the constitutional guarantees provided by the United States, Matter of M, 9 I. & N. Dec. 132, 138 (BIA 1960), there is no support for the governments suggestion that convictions obtained in foreign military courts through torture or procedures completely lacking in fundamental fairness should be considered reliable evidence of guilt.



The harsh sanction of deportation, or denial of relief from deportation, should not be imposed where there is no reliable proof of moral culpability, notwithstanding the existence of a foreign conviction. See, e.g., Lennon v. INS, 527 F.2d 187, 193 (2d Cir. 1975). Indeed, it is deeply offensive to American notions of justice to suggest that foreign convictions obtained through the use of physical and psychological abuse, or by methods totally lacking in fundamental fairness, should be relied upon as proof of guilt or considered to be valid. See Matter of Oliver, 333 U.S. 257, 268-70 (1948) ("The traditional Anglo-American distrust for secret trials has been variously ascribed to the notorious use of this practice by the Spanish Inquisition, to the excesses of the English Court of Star Chamber, and to the French monarchy's abuse of the lettre de cachet"); U.S. v. Karake, 443 F. Supp. 2d 8, 51 (D.C. Dist. Ct. 2006) (holding defendants confessions inadmissible where obtained through psychological and physical abuse). Thanks to Jason Cade.