Criminal Defense of Immigrants

(F)  Arrests, Expungements and Pardons.  An immigration judge or other reviewing authority may take into account criminal acts for which the noncitizen was not convicted,[112] as well as convictions that have been expunged,[113] as long as the noncitizen has admitted commission of the acts.[114] An expunged drug conviction will be considered a “conviction” for GMC purposes even if the noncitizen has not independently admitted committing a drug crime.[115]  A criminal act not resulting in a conviction, that would not be considered a bar if the act did result in a conviction, should not bar a noncitizen from showing Good Moral Character.[116]

An executive pardon is effective to avoid the 180-day confinement bar to GMC. [117]  If obtained before the required GMC period begins, a pardon will eliminate the pardoned conviction for purposes of GMC as long as the applicant can demonstrate rehabilitation before the beginning of the required period.[118]  A pardon received during the statutory period will avoid a GMC bar based upon commission of one or more crimes of moral turpitude or confinement of five years or more in the aggregate if the noncitizen can show “extenuating and/or exonerating circumstances exist” that would establish Good Moral Character.[119]

[112] 8 C.F.R. § 316.10(b)(iv).

[113] 8 C.F.R. § 316.10(c)(3)(ii); Ikenokwalu-White v. INS, 316 F.3d 798 (8th Cir. Jan. 21, 2003) (immigration courts may consider Kansas misdemeanor convictions for theft, battery, and welfare fraud, even though they had been expunged pursuant to a state rehabilitative statute, in making a Good Moral Character determination); Paredes-Urrestarazu v. INS, 36 F.3d 801 (9th Cir. 1994) (pretrial diversion under Cal. Penal Code § 1000.5 does not prevent BIA from using circumstances of arrest as a negative factor in denying respondent’s § 212(c) waiver application).

[114] See, e.g., Matter of Mena, 17 I. & N. Dec. 38 (BIA 1979) (pre-plea admission to narcotics offense constituted an admission for purposes of precluding eligibility for Good Moral Character).  See § 20.28, infra.

[115] 8 C.F.R. § 316.10(c)(3)(i).

[116] See Beltran-Tirado v. INS, 213 F.3d 1179 (9th Cir. 2000) (use of false social security number does not preclude showing of Good Moral Character since conviction of the offense would not do so).  The circumstances of the offense, however, can be weighed as a discretionary factor.

[117] Matter of H, 7 I. & N. Dec. 249 (BIA 1956).  See § 15.6(D), supra.

[118] 8 C.F.R. § 316.10(c)(2)(i).

[119] 8 C.F.R. § § 316.10(c)(2)(ii), 316.10(b)(2)(i), 316.(b)(2)(ii).