Criminal Defense of Immigrants

If a noncitizen admits the essential elements of the commission of a drug offense or crime involving moral turpitude, that creates a ground of inadmissibility even if there is no criminal conviction and even if s/he does not admit the legal conclusion of having committed the crime.[216]  See § 18.8, infra.

                A juvenile, however, commits an act of juvenile delinquency, rather than a crime.  Thus, an admission of this act cannot constitute an admission of a crime involving moral turpitude or drug offense, so a juvenile is not subject to these conduct-based grounds of inadmissibility.[217]

                The Board’s decision in Matter of MU,[218] holding a juvenile’s admission of a crime of moral turpitude admits a juvenile adjudication, not a crime, should also control the case of a noncitizen who admits having committed conduct as a juvenile that would constitute a controlled substance offense if it had committed by an adult, because the language in the two statutes defining the grounds of inadmissibility, concerning sufficiency of admissions, is identical. 

                The Ninth Circuit, however, implied to the contrary.  In United States v. Gutierrez-Alba,[219] a juvenile lied about his age and pleaded guilty in Idaho adult court to grand theft, a crime involving moral turpitude.  He was then deported, re-entered, and was prosecuted in federal court for illegal re-entry.[220]  He argued that his deportation hearing violated due process, since the INS used an adult conviction to deport him although the INS knew he had been under 18 at the time the offense was committed, and the adult court was therefore without jurisdiction.  The Ninth Circuit assumed, arguendo, that the immigration court violated his due process rights, but held there was no prejudice.  It held that in pleading guilty, the juvenile admitted commission of a crime involving moral turpitude.  Therefore, even without a valid conviction, the admission created a bar to showing Good Moral Character.[221]  It therefore held the juvenile would have been deported in any event and suffered no prejudice as a result of the (assumed) due process violation of using an adult court conviction to deport a juvenile.

                The argument that prevailed in Matter of MU,[222] however, was apparently not raised in Gutierrez-Alba, which therefore should not be taken as rejecting it, since a case cannot be read as rejecting an argument that was not made.[223]

[216] See INA § 212(a)(2)(A)(i), 8 U.S.C. § 1182(a)(2)(A)(i) (CMT admission); INA § x212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II) (controlled substance crime admission), Appendix E, infra, section [4] (CMT admission), section [5] (controlled substance crime admission).

[217] 9 Foreign Affairs Manual 40.21(b) N.2.1; Matter of MU, 2 I. & N. Dec. 92 (BIA 1944) (admission of the commission of “theft ‘ in a State jurisdiction (California), where the offense is considered to be an act of juvenile delinquency because of the age of the offender, is merely an admission of juvenile delinquency for which the alien is not deportable); Matter of F, 4 I. & N. Dec. 726 (BIA 1952) (BIA did not treat as an inadmissible offense an adult’s admission to perjury committed as a juvenile).

[218] Matter of MU, 2 I. & N. Dec. 92 (BIA 1944).

[219] United States v. Gutierrez-Alba, 128 F.3d 1324 (9th Cir. 1997).

[220] INA § 276, 8 U.S.C. § 1326.

[221] Rashtabadi v. INS, 23 F.3d 1562, 1568 (9th Cir. 1994).  In Matter of F, 4 I. & N. Dec. 726 (BIA 1952), however, the BIA did not treat as an inadmissible offense an adult’s admission to perjury committed as a juvenile.

[222] Matter of MU, 2 I. & N. Dec. 92 (BIA 1944) (admission of the commission of theft in California, where the offense is considered to be an act of juvenile delinquency because of the age of the offender, is merely an admission of juvenile delinquency for which the noncitizen is not deportable).

[223] RAV v. City of St. Paul, 112 S.Ct. 2538, 2545 (1992) (“It is of course contrary to all traditions of our jurisprudence to consider the law on [a] point conclusively resolved by broad language in cases where the issue was not presented or even envisioned”); United States v. Vroman, 975 F.2d 669, 672 (9th Cir. 1992) (precedent not controlling on issue not presented to prior panel), cert. denied, 113 S.Ct. 1611 (1993); United States v. Faulkner, 952 F.2d 1066, 1071 n.3 (9th Cir. 1991) (same); DeRobles v. INS, 58 F.3d 1355 (9th Cir. 1995).)