(A)  Foreign Convictions and Sentences.  A foreign conviction for conduct not deemed criminal under United States law does not trigger deportation.[317]  For example, “Theft or stealing” under a Canadian statute includes offenses which would not be so characterized under United States law, since it precludes temporary as well as permanent taking, so the BIA may go beyond the foreign statute and to consider such facts as may appear from the record of conviction or the admissions of the noncitizen, in order to determine by independent judgment whether, under United States law, the offense of conviction involves moral turpitude.[318]  The actual sentence imposed by the court is used to determine the immigration effect of a conviction, even if the conviction occurred in a foreign country.[319]  As with convictions occurring in United States federal and state courts, the noncitizen may not go behind a foreign conviction and attempt to show that the underlying conduct does not fall within a ground of deportation.[320]

 

In determining whether a foreign conviction involved moral turpitude, where foreign laws define crimes in terms unlike those found in similar offenses under United States law, the immigration court may consider matters beyond the statute or conviction record.[321]

 

Although the rule is well settled that the nature of a crime is conclusively established by the elements, the court may look beyond a foreign statute under certain circumstances to consider such facts as may appear from either the record of conviction or the noncitizen’s admissions, to reach an independent conclusion as to whether the offense is one which under United States law involves moral turpitude.  The Board said that this rule is applied when it was difficult to determine whether the foreign statute defines offenses which are designated as crimes under United States law.[322]

 

            There is an argument that no foreign conviction can trigger deportability.  Congress certainly knew how to provide for the effects of foreign convictions if it wished to do so.  For example, immigration law expressly provides that a noncitizen convicted of or who admits committing a violation of state law, federal law, or any law or regulation of “a foreign country relating to a controlled substance . . . is inadmissible.”[323]  Similarly, the Controlled Substances Act defines a “felony drug offense” as “an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country.”[324]

 

            There is no express language including foreign convictions within those convictions that trigger deportation.  This gives rise to an argument that foreign convictions cannot trigger deportation.  This makes sense because when someone is seeking admission to the United States, any convictions are likely to have been suffered in foreign lands.  Similarly, it would be unfair to allow any such convictions that did not trigger inadmissibility when the noncitizen was admitted to the United States to trigger deportation later.  Therefore, it makes sense for Congress to have omitted a provision that foreign convictions trigger deportation.  Because of the serious consequences of deportation, this ambiguous legislation must be construed in favor of the noncitizen.  See § 5.25, infra.

[317] Matter of De La Nues, 18 I. & N. Dec. 140 (BIA 1981); Matter of Ramirez-Rivero, 18 I. & N. Dec. 135 (BIA 1981).

[318] Matter of T, 2 I. & N. Dec. 22 (BIA, AG 1944).

[319] See Matter of Scarpulla, 15 I. & N. Dec. 139 (BIA 1974); Matter of M, 8 I. & N. Dec. 453, 454-455 (BIA 1959).

[320] Chiaramonte v. INS, 626 F.2d 1093, 1098 (2d Cir. 1980) (stating that because of comity concerns and practical considerations, “an alien adjudged guilty by a foreign tribunal of a crime of moral turpitude may not attempt to demonstrate . . . [in a deportation  proceeding] that his actions were only undertaken in response to exceptional circumstances and that he is morally blameless”).

[321] Chiaramonte v. INS, 626 F.2d 1093, 1099 (2d Cir. 1980) (the court distinguished the Lennon decision, since the elements of the crime of conviction under Italian statute were equivalent to larceny as understood in U.S. law); Lennon v. INS, 527 F.2d 187 (2d Cir. 1975) (the court examined British judicial opinions to determine whether conviction of violating British statute required guilty knowledge as an essential element); De Lucia v. Flagg, 297 F.2d 58 (7th Cir. 1961), cert. den., 369 U.S. 837, 82 S.Ct. 867 (1962) (record of conviction disclosed Italian homicide conviction was equivalent to voluntary manslaughter conviction under United States law); Matter of S, 9 I. & N. Dec. 496 (BIA 1961) (record disclosed Peru homicide conviction was equivalent to voluntary manslaughter under United States law); Matter of M, 9 I. & N. Dec. 132 (BIA 1960) (Italian conviction for swindling and forgery involved criminal intent; violation of domicile did not; independent study made of conviction records and statutes); Matter of M, 2 I. & N. Dec 686 (1946) (Canadian auto-theft conviction held not CMT, since defendant was a minor at the time of the offense and evidence showed he intended only “joy-riding” rather than a permanent taking); Matter of T, 2 I. & N. Dec. 22 (AG 1944) (court considered facts in Canadian theft conviction record and admissions of noncitizen to determine whether the defendant intended to deprive the owner of the property permanently).

[322] Matter of M, 9 I. & N. Dec. 132 (BIA 1960) (Italian conviction for swindling and forgery involved criminal intent; violation of domicile did not; independent study made of conviction records and statutes).

[323] INA § 212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II) (“[A]ny alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of -- (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 802 of Title 21), . . . is inadmissible.”).

[324] 21 U.S.C. § 802(44).

FOREIGN CONVICTIONS - SPECIFICALLY LISTED IN FEDERAL LEGISLATION
Burgess v. United States, ___ U.S. ___, ___,(Apr. 16, 2008) ("Notably, [21 U.S.C.] 802(44) includes foreign offenses punishable by more than one year, while 802(13) includes only federal and state offenses. Incorporation of 802(13) into 841(b)(1)(A) would exclude enhancement based on a foreign offense, notwithstanding the express inclusion of foreign offenses in 802(44)'s definition of "felony drug offense." Furthermore, some States and many foreign jurisdictions do not label offenses as felonies or misdemeanors.").

FOREIGN CONVICTIONS - SPECIFICALLY LISTED IN FEDERAL LEGISLATION
Burgess v. United States, ___ U.S. ___, ___,(Apr. 16, 2008) ("Notably, [21 U.S.C.] 802(44) includes foreign offenses punishable by more than one year, while 802(13) includes only federal and state offenses. Incorporation of 802(13) into 841(b)(1)(A) would exclude enhancement based on a foreign offense, notwithstanding the express inclusion of foreign offenses in 802(44)'s definition of "felony drug offense." Furthermore, some States and many foreign jurisdictions do not label offenses as felonies or misdemeanors.").

CONVICTION - DEPORTATION - FOREIGN CONVICTIONS - CONGRESS EXCLUDED FOREIGN CONVICTIONS FROM CONVICTIONS TRIGGERING DEPORTATION, EXCEPT WHERE IT EXPRESSLY PROVIDED OTHERWISE
Small v. United States, ___ U.S. ___ (April 26, 2005) (18 U.S.C. 922(g)(1), which prohibits a person who has been "convicted in any court" from possessing a firearm, encompasses only domestic, not foreign, convictions), abrogating United States v. Atkins, 872 F.2d 94, 96 (4th Cir. 1989), and United States v. Winson, 793 F.2d 754, 757-759 (6th Cir. 1986).
http://laws.findlaw.com/us/000/03-750.html       In Small v. United States, ___ U.S. ___ (April 26, 2005), the United States Supreme Court held that 18 U.S.C. 922(g)(1), which prohibits a person who has been "convicted in any court" from possessing a firearm, encompasses only domestic, not foreign, convictions. This suggests an argument that Congress excluded foreign convictions from those convictions which trigger deportation, except where it expressly provided otherwise.      For aggravated felonies, for example, foreign convictions falling within the aggravated felony definition were expressly listed by Congress as constituting aggravated felonies, but only if the term of imprisonment was completed within the previous 15 years. INA 101(a)(43), 8 U.S.C. 1101(a)(43). Foreign convictions not meeting this test do not fall within the definition.      There is an argument that no foreign conviction can trigger deportability. Congress certainly knew how to provide for the effects of foreign convictions if it wished to do so. Safe Havens 4.35(A). For example, immigration law expressly provides that a noncitizen convicted of or who admits committing a violation of state law, federal law, or any law or regulation of "a foreign country relating to a controlled substance . . . is inadmissible." INA 212(a)(2)(A)(i)(II), 8 U.S.C. 1182(a)(2)(A)(i)(II) ("[A]ny alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of -- (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 802 of Title 21), . . . is inadmissible.").      Moreover, the U.S. Sentencing Guidelines define "felony" to include "any federal, state or local offense punishable by imprisonment for a term exceeding one year." U.S.S.G. 2L1.2, Application Note 1. As the Supreme Court pointed out, this does not include foreign convictions.      Additionally, the Controlled Substances Act defines a "felony drug offense" as "an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country." 21 U.S.C. 802(44). See Safe Havens 7.22(E).      The domestic violence conviction ground of deportation covers a victim who "is protected from that individuals acts under the domestic or family violence laws of the United States or any State, Indian tribal government, or unit of local government." INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i) (emphasis supplied). A conviction under foreign law is not listed here, and is therefore not included as a ground of deportation. Congress certainly knew how to include foreign convictions when it wished to do so. E.g., INA 101(a)(43)(U), 8 U.S.C. 1101(a)(43)(U) (sentence following subparagraph U) ("The term [aggravated felony] 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.") (emphasis supplied).      The unlawful voting deportation ground lists only voting in violation of federal, state, or local law, so Congress in effect excluded voting in violation of foreign law from this ground of deportation. See Safe Havens 7.16, 7.192.      Noncitizens are deportable who have, outside the United States, committed, ordered, incited, assisted, or otherwise participated in the commission of, under color of law of any foreign nation, any extrajudicial killing, as defined in Torture Victim Protection Act of 1991, 3(a), 28 U.S.C. 1350 note. INA 237(a)(4)(D), 8 U.S.C. 1237(a)(4)(D), referencing INA 212(a)(3)(E)(iii)(II).      With respect to any conviction-based ground of deportation that does not expressly include foreign convictions, there is an excellent argument that Congress did not include them within the ground of deportation. All grounds of deportation, that are based on convictions, provide that only convictions received "after admission" trigger deportation. See Safe Havens 4.34.      There is no express language including foreign convictions within those convictions that trigger deportation. This gives rise to an argument that foreign convictions cannot trigger deportation. This makes sense because when someone is seeking admission to the United States, any convictions are likely to have been suffered in foreign lands. Similarly, it would be unfair to allow any such convictions that did not trigger inadmissibility when the noncitizen was admitted to the United States to trigger deportation later. Therefore, it makes sense for Congress to have omitted a provision that foreign convictions trigger deportation.      In addition, in general, a conviction must have occurred "after the date of admission" in order to trigger deportation. The statute defining grounds of deportation, INA 237(a), provides that noncitizens "admitted to the United States" shall be deportable if they fall within one or more specified classes of deportable noncitizens. INA 237(a)(2)(A)(i)(I), 8 U.S.C. 1227(a)(2)(A)(i)(I) (conviction of crime of moral turpitude); INA 237(a)(2)(A)(ii), 8 U.S.C. 1227(a)(2)(A)(ii) (multiple convictions of crimes of moral turpitude "at any time after admission"); INA 237(a)(2)(A)(iii), 8 U.S.C. 1227(a)(2)(A)(iii) (aggravated felony "at any time after admission"); INA 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i) (controlled substances conviction "at any time after admission"); INA 237(a)(2)(B)(ii), 8 U.S.C. 1227(a)(2)(B)(ii) (drug abuser or addict who is or "at any time after admission has been" convicted); INA 237(a)(2)(C), 8 U.S.C. 1227(a)(2)(C) (firearms conviction). Many specific statutory grounds of deportation also expressly require a conviction after admission to the United States. E.g., INA 237(a)(2)(A)(i)(I), 8 U.S.C. 1227(a)(2)(A)(i)(I) (conviction of crime of moral turpitude); INA 237(a)(2)(A)(ii), 8 U.S.C. 1227(a)(2)(A)(ii) (multiple convictions of crimes of moral turpitude "at any time after admission"); INA 237(a)(2)(A)(iii), 8 U.S.C. 1227(a)(2)(A)(iii)(aggravated felony "at any time after admission"); INA 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i)(controlled substances conviction "at any time after admission"); INA 237(a)(2)(B)(ii), 8 U.S.C. 1227(a)(2)(B)(ii) (drug abuser or addict who is or "at any time after admission has been" convicted); INA 237(a)(2)(C), 8 U.S.C. 1227(a)(2)(C)(firearms conviction "at any time after admission"); INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i)(domestic violence conviction "at any time after admission"). Because a deportable conviction must occur after admission to the United States, there is every reason to believe that Congress was considering convictions suffered within the United States when it defined the conviction-based grounds of deportation.      Because of the serious consequences of deportation, this ambiguous legislation must be construed in favor of the noncitizen. See Safe Havens 5.25.

Other

CONVICTION - FOREIGN CONVICTIONS
Congress recently provided, with respect to a specified new statute, that "A foreign conviction is not a sex offense for the purposes of this title if it was not obtained with sufficient safeguards for fundamental fairness and due process for the accused under guidelines or regulations established under section 112." The Adam Walsh Child Protection and Safety Act of 2006, H.R. 4472, Pub. L. 109-248, 111(5)(B) (July 27, 2006).

CONVICTION - CRIMINAL OFFENSE -- FOREIGN OFFENSE
Congress knows how to refer to foreign criminal offenses if it wishes to do so. For example, Congress recently provided, with respect to a specific new statute, that "The term `criminal offense' means a State, local, tribal, foreign, or military offense (to the extent specified by the Secretary of Defense under section 115(a)(8)(C)(i) of Public Law 105-119 (10 U.S.C. 951 note)) or other criminal offense." The Adam Walsh Child Protection and Safety Act of 2006, H.R. 4472, Pub. L. 109-248, 111(6) (July 27, 2006).

SAFE HAVEN - STATE REHABILITATIVE RELIEF - PRIOR FOREIGN CONVICTION DOES NOT DISQUALIFY DEFENDANT FROM FFOA TREATMENT
The Federal First Offender Act, 18 U.S.C. 3607(a)(1), does not permit an expungement if the defendant has prior to the commission of the current offense suffered a conviction under "Federal or State" law. This provision does not include foreign convictions as a disqualification for this relief.

REMOVAL PROCEEDINGS - FOREIGN CONVICTIONS - CHALLENGING FOREIGN CONVICTIONS IN IMMIGRATION COURT
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.