Safe Havens

(C)  Admission of the Elements of a CMT or Drug Offense.  Further, a person who admits all the elements of a drug offense or crime involving moral turpitude is excludable, even though the person receives no actual criminal conviction in criminal court.[136]  However, if the incident is disposed of by the court in some manner (e.g., dismissal), the government may not be allowed to go behind the dismissal at all.  While immigration authorities may make independent determinations of excludability without regard to judicial action in criminal proceedings because neither proceeding is res judicata of the other, there is a long-standing custom for the immigration courts to consider the criminal court’s adjudication as binding.  For example, the immigration courts generally will not look beyond the criminal court’s disposition of a charge to hold the noncitizen on an “admission” that may arise from the set of facts.[137]

            PRACTICE TIP.  In plea bargaining, as well as generally in defending criminal cases, do not allow the client to make an admission or provide other new evidence of any offense involving drugs or prostitution.  For example, the defendant may make a declaration to establish equities, describing the facts of her previous life and how she has changed.  In doing so it is important for the defendant to avoid any admission of sale, addiction or abuse of drugs, or of engaging in prostitution.  See § § 2.9-2.10, supra.

[136] See K. Brady, et al., California Criminal Law and Immigration § § 3.3, 4.4 (2004).

[137] Matter of I, 4 I. & N. Dec. 159 (BIA 1950).