Safe Havens

(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).