Criminal Defense of Immigrants

(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.  See § 8.40(B), supra.  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.  See § 16.8, infra.  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.[159] 

The client can suffer immigration penalties for some acts even if there is no criminal conviction.  Some grounds of deportation, [160] and some grounds of inadmissibility, [161] do not depend upon the existence of a conviction, but are triggered instead by certain conduct or other factors.  For example, a person may be inadmissibility (but not deportable) if a DHS officer has “reason to believe” the person has been a drug trafficker, [162] or if s/he “has engaged in” prostitution.[163]  Drug addiction and drug abuse are grounds for deportation and inadmissibility.[164] 

Even successful avoidance (in the first place) or elimination (by means of post-conviction relief) of the conviction will not necessarily resolve these problems, if the DHS has independent evidence of these “facts,” since these conduct-based grounds of deportation and inadmissibility do not depend upon the existence of a formal conviction.

                Example:  Bertram was convicted of possession of heroin for sale.  The conviction is vacated by writ of habeas corpus, and the original charges are dismissed for lack of evidence.  Bertram no longer has a drug conviction and is thus not deportable or excludable for having been convicted.  The INS might charge, however, that the police reports constitute “reason to believe” that he was a drug trafficker and that he is therefore excludable.

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

[160] See Chapter 17, infra.

[161] See Chapter 18, infra.

[162] See § 21.6, infra.

[163] See § 18.24, infra.

[164] See § § 21.10, 21.15, infra.