(A) Conduct Not Criminal Under U.S. Law.  Certain foreign convictions are for conduct that is not considered criminal under United States law, and are therefore not considered convictions of crime.[90]

 

                A foreign conviction for conduct not deemed criminal under United States law does not trigger deportation.[91]  In Matter of Eslamizar,[92] the BIA indicated: “[W]e have found that Congress intended other limitations with respect to the recognition of foreign convictions for immigration purposes, holding, inter alia, that a foreign conviction must be for conduct recognized as criminal by United States standards in order to be deemed a crime under the immigration laws.  See Matter of De La Nues, 18 I. & N. Dec. 140 (BIA 1981); Matter of McNaughton, 16 I. & N. Dec. 569 (BIA 1978), aff’d, 612 F.2d 457 (9th Cir. 1980).”

 

                In Lennon v. INS,[93] the Second Circuit held that John Lennon was not inadmissible on account of a controlled substances conviction, where he had suffered a conviction in Great Britain for possession of cannabis resin under a statute in which guilty knowledge was not an essential element of the offense. The court determined that United States law did not criminalize drug possession where the offense does not require guilty knowledge as an essential element, and held a noncitizen convicted under a foreign law for conduct that would not be criminal under United States law is not considered to have been convicted for purposes of the United States immigration laws.  In 1994, however, the BIA held a controlled substance conviction does trigger deportation offense regardless of whether guilty knowledge is an element of the offense.[94]  In so doing, the BIA rejected years of settled case law to the contrary and indicated that it will not follow Lennon even in the Second Circuit. It is not clear whether the Second Circuit will accept the Board’s new interpretation.[95]

 

Whether a foreign conviction constitutes an offense involving moral turpitude is assessed under United States standards.[96]  If a party relies on foreign law, however, it bears the burden of establishing the elements of the offense under foreign law.[97] 

                For example, in United States ex rel. McKenzie v Savoretti,[98] the court held that the INS did not have to prove that the British West Indies convictions of crimes of forgery, uttering, and stealing involved moral turpitude in the foreign jurisdiction by investigating the substantive foreign law.  The noncitizen argued that his convictions were actually for juvenile delinquency, and that he was tried and convicted as an adult offender because a juvenile court had not been set up in the British West Indies.  The court rejected this argument, saying that moral turpitude within the scope of the immigration laws is determined without reference to the laws of foreign jurisdictions, and that where the noncitizen had admitted the accuracy of the record showing his conviction of the crimes of forgery, uttering, and stealing, the determination that he had been convicted of crimes involving moral turpitude was correct, since under United States standards these crimes are considered to be crimes of moral turpitude.  It is not clear whether immigration or federal courts would reach the same result today.  See § 7.23(A), supra. 

 

The Seventh Circuit rejected the contention a hearing officer erred in referring to Italian law in his decision as to moral turpitude, since no proof of the foreign law was made at the hearing.  The court in De Lucia v. Flagg[99] held that it was only necessary for the hearing officer to consider the record of conviction in Italy of voluntary homicide “with grave provocation” and apply the prevalent United States standards of what constitutes moral turpitude to reach his conclusion.

 

In Vidal y Planas v. Landon,[100] the court held that a noncitizen convicted in Spain of homicide with extenuating circumstances, when he had evidently shot a man in self-defense after having been attacked, had not been convicted of a crime involving moral turpitude.  The record of conviction established that the defendant, at the time of the slaying, was in a blind rage incited by the victim.  The court applied standards supplied by the Solicitor General of the Department of Justice, for use by immigration officers, which excepted from the category of crimes involving moral turpitude those offenses which were “the outcome merely of natural passions, of animal spirits, of infirmity of temper, of weakness of character, or of mistaken principles, unaccompanied by a vicious motive or corrupt mind.”

                In Mercer v. Lence,[101] the court rejected the noncitizen’s argument that Canadian statutes must be consulted in order to determine whether the crime of conspiracy to defraud involves moral turpitude, and that without proof as to whether the crime proscribed by the foreign statute involved moral turpitude, the question could not be determined here.  The court held that moral turpitude for immigration purposes must be determined according to United States standards, and concluded that the noncitizen had been convicted of a crime which U.S. courts regard as involving moral turpitude.

 

                “Theft or stealing” under a Canadian statute includes offenses which would not be so characterized under United States law, since it prohibits temporary as well as permanent taking, so the BIA may go beyond the foreign statute and 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 particular offense of conviction involves moral turpitude.[102]  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.[103]  As with convictions occurring in United States federal and state courts, the noncitizen may not go behind the face of a foreign conviction and attempt to show that the underlying conduct does not fall within a ground of deportation.[104]

[90] Matter of De La Nues, 18 I. & N. Dec. 140 (BIA 1981); Matter of Ramirez-Rivero, 18 I. & N. Dec. 135 (BIA 1981). See N. Tooby & J. Rollin, Safe Havens: How To Identify And Construct Non-Deportable Convictions § 4.35(A) (2005).

[91] Matter of De La Nues, 18 I. & N. Dec. 140 (BIA 1981); Matter of Ramirez-Rivero, 18 I. & N. Dec. 135 (BIA 1981); Matter of McNaughton, 16 I. & N. Dec. 569 (BIA 1978).

[92] Matter of Eslamizar, 23 I. & N. Dec. 684 (BIA Oct. 19, 2004) (en banc) (court procedures under Ore. Rev. Stat. § 153.076, did not constitute a conviction for immigration purposes, since the proceedings do not allow a jury trial, right to court-appointed counsel, a sentence to custody, or proof beyond a reasonable doubt), overruling Matter of CR, 8 I. & N. Dec. 59 (BIA 1958) (police court adjudication of petty theft under a municipal ordinance, on a standard of preponderance of the evidence, constituted a conviction for immigration purposes).

[93] Lennon v. INS, 527 F.2d 187 (2d Cir. 1975).  But see Matter of Esqueda, 20 I. & N. Dec. 850 (BIA 1994) (controlled substance convictions trigger deportation even though guilty knowledge is not an element of the crime).

[94] Matter of Esqueda, 20 I. & N. Dec. 850 (BIA 1994).

[95] The Second Circuit has not been reluctant, in other contexts, to overrule BIA decisions. See, e.g., Anderson v. McElroy, 953 F.2d 803 (2d Cir. 1992) (indefinite stay of deportation until BIA reopens case); Bedoya-Valencia v. INS, 6 F.3d 891 (2d Cir. 1993) (BIA violated equal protection by denying § 212(c) eligibility to respondent who was deportable for entry without inspection); Montilla v. INS, 926 F.2d 162 (2d Cir. 1991) (rejecting BIA decision holding violation of right to counsel requires showing of prejudice).

[96] Squires v. INS, 689 F.2d 1276, 1278 (6th Cir. 1982) (appraisal of petty offense statute);

United States ex rel. Ventura v. Shaughnessy, 219 F.2d 249 (2d Cir. 1955) (Portuguese crime “very similar to what we call burglary or larceny”); McKenzie v. Savoretti, 200 F.2d 546 (5th Cir. 1952); Mercer v. Lence, 96 F.2d 122 (10th Cir.), cert. denied, 305 U.S. 611 (1938); Whitty v. Weedin, 68 F.2d 127 (9th Cir. 1933) (bigamy committed in Canada); Pillisz v. Smith, 46 F.2d 769 (7th Cir. 1931) (manslaughter committed in Hungary); United States ex rel. Ulrich v. Kellogg, 58 App. D.C. 360, 30 F.2d 984, 71 A.L.R. 1210 (D.C. Cir.), cert. denied, 279 U.S. 868, 49 S.Ct. 482 (1929) (conviction in foreign country of larceny, irrespective of whether it was petit or grand larceny under American standards); Matter of McNaughton, 16 I. & N. Dec. 569 (BIA 1978) (securities fraud); Matter of M, 9 I. & N. Dec. 132 (BIA 1960); Ex parte Isojoki, 222 Fed. 151 (D. Cal. 1915) (unmarried woman living in Sweden with unmarried man, and having isolated intercourse with other unmarried men, both in Sweden and on a ship en route to Australia); Siniscalchi v. Thomas, 195 F. 701 (6th Cir. 1912) (conviction of rape in Italy); United States ex rel. Huber v. Sibray, 178 F. 144 (C.C.Pa. 1910), rev’d on other grounds, 185 F. 401 (3d Cir. 1910) (adultery committed in Austria); Forbes v. Brownell, 149 F.Supp. 848 (D.D.C. 1957) (bigamy in Canada); United States ex rel. Cumberbatch v. Shaughnessy, 117 F.Supp. 152 (D.N.Y. 1953) (false statement before United States consular officer in Trinidad); United States ex rel. Teper v. Miller, 87 F.Supp. 285 (D.N.Y. 1949) (noncitizen’s conviction in England of “stealing a fur” from his wife); United States ex rel. Ciarello v. Reimer, 32 F.Supp. 797 (D.N.Y. 1940) (assault and battery in Italy); United States ex rel. Chartrand v. Karnuth, 31 F.Supp. 799 (D.N.Y. 1940) (conviction in Canada of theft of shoes valued at $12); United States ex rel. Schreiber v. Reimer, 19 F.Supp. 719 (D.N.Y. 1937) (embezzlement committed in Belgium); Matter of Katsanis, 14 I. & N. Dec. 266 (BIA 1973); Matter of Awaijane, 14 I. & N. Dec. 117 (BIA 1972); Matter of M, 9 I. & N. Dec. 132 (1960) (swindling, forgery, and “violation of domicile” in Italy); Matter of D, 4 I. & N. Dec. 149 (BIA 1950) (attempted suicide); Matter of M, 2 I. & N. Dec. 686 (BIA 1946) (Canadian conviction for “joy riding”).

[97] Matter of Soleimani, 20 I. & N. Dec. 99 (BIA 1989); but see Sadeghi v. INS, 40 F.3d 1139, 1143 (10th Cir. 1994).

[98] United States ex rel. McKenzie v. Savoretti, 200 F.2d 546 (5th Cir. 1952).

[99] De Lucia v. Flagg, 297 F.2d 58 (7th Cir. 1961), cert. denied, 369 U.S. 837, 82 S.Ct. 867 (1962).

[100] Vidal y Planas v. Landon, 104 F.Supp. 384 (S.D.Cal. 1952).

[101] Mercer v. Lence, 96 F.2d 122 (10th Cir.), cert. denied, 305 U.S. 611, 59 S.Ct. 69 (1938).

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

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

[104] 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”).

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.").

Other

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.