(B)  Admission of a Conviction.  The Second Circuit has found that a noncitizen may properly admit having been convicted of a controlled substances offense.  In Francis v. Gonzales,[75] the court found that a Jamaican rap-sheet, in conjunction with a properly taken admission, could suffice to show, by clear and convincing evidence, that an LPR had (prior to admission to the United States) been convicted of a controlled substances offense.  However, the court found that the admission in immigration proceedings had been insufficient, because the colloquy between the Immigration Judge and the noncitizen had not established each of the elements of a “conviction”[76] as defined for immigration purposes.

 

                The Ninth Circuit has found that a noncitizen cannot “admit” in immigration proceedings to having been convicted for immigration purposes when the noncitizen had not actually been convicted.[77] 

[75] Francis v. Gonzalez, 442 F.3d 131 (2d Cir. Mar. 27, 2006)

[76] See § § 7.8-7.20, supra.

[77] Garcia-Lopez v. Ashcroft, 334 F.3d 840, 844 n.4 (9th Cir. June 26, 2003) (“The INS also contends that Garcia-Lopez ‘admitted’ that he was convicted of a felony because, in support of the initial application, Garcia-Lopez’s accredited representative stated that Garcia-Lopez had received a felony sentence. As an initial matter, the representative’s statement was patently inaccurate, as Garcia-Lopez was never actually sentenced. More importantly, Garcia-Lopez’s belief about the nature of his offense is irrelevant to the purely legal question of how the offense was categorized or what the maximum penalty was. Similarly, the statement of Garcia-Lopez’s representative as to a matter of law has no legal effect. See Matter of Ramirez-Sanchez, 17 I. & N. Dec. 503 (BIA 1980). The INS’s contention that Garcia-Lopez is bound by this statement must fail.”).

BIA

CONTROLLED SUBSTANCES -- INADMISSIBILITY -- ADMISSION IN LIEU OF CONVICTION
In the absence of a conviction, a finding of guilt cannot be based on inferences of facts that the noncitizen has failed or refused to admit. Matter of GM, 7 I. & N. Dec. 40 (Att'y Gen. 1956); Matter of EN, 7 I. & N. Dec. 153 (BIA 1956).

INADMISSIBILITY - ADMISSION OF FACTS - FINDING OF GUILT CANNOT BE BASED ON INFERENCES FROM FACTS RESPONDENT REFUSES TO ADMIT
In the absence of a conviction, a finding of guilt cannot be based on inferences of facts that the noncitizen has failed or refused to admit. Matter of GM, 7 I. & N. Dec. 40 (Att'y Gen. 1956); Matter of EN, 7 I. & N. Dec. 153 (BIA 1956).

Sixth Circuit

ALFORD PLEA
United States v. Tunning, 69 F.3d 107 (6th Cir. 1995) (''Alford'' plea refers to defendant who pleads guilty but maintains that he is innocent).

Ninth Circuit

POST CON RELIEF - STATE REHABILITATIVE RELIEF - IMMIGRATION EFFECTS - NINTH CIRCUIT - ADMISSION OF DRUG OFFENSE
Romero v. Holder, 568 F.3d 1054, 1062 (9th Cir. 2009) ("the facts underlying a conviction that would have been eligible for relief under the FFOA, but was expunged under a state rehabilitative statute, cannot serve as an admission of a drug offense, statutorily barring a finding of good moral character under 8 U.S.C. 1101(f)(3).").

POST CON RELIEF - STATE REHABILITATIVE RELIEF - IMMIGRATION EFFECTS - NINTH CIRCUIT - ADMISSION OF DRUG OFFENSE
Romero v. Holder, 568 F.3d 1054, 1062 (9th Cir. 2009) ("the facts underlying a conviction that would have been eligible for relief under the FFOA, but was expunged under a state rehabilitative statute, cannot serve as an admission of a drug offense, statutorily barring a finding of good moral character under 8 U.S.C. 1101(f)(3).").

INADMISSIBILITY - ADMISSIONS OF CONDUCT
Garcia-Lopez v. Ashcroft, 334 F.3d 840 n.4 (9th Cir. June 26, 2003) (respondent's representative cannot in proceedings concede a conviction that is not a conviction: "The INS also contends that Garcia-Lopez "admitted" that he was convicted of a felony because, in support of the initial application, Garcia-Lopez's accredited representative stated that Garcia-Lopez had received a felony sentence. As an initial matter, the representative's statement was patently inaccurate, as Garcia-Lopez was never actually sentenced. More importantly, Garcia-Lopez's belief about the nature of his offense is irrelevant to the purely legal question of how the offense was categorized or what the maximum penalty was. Similarly, the statement of Garcia-Lopez's representative as to a matter of law has no legal effect. See Matter of Ramirez-Sanchez, 17 I & N Dec. 503 (BIA 1980). The INS's contention that Garcia-Lopez is bound by this statement must fail.").

Other

CRIMES OF MORAL TURPITUDE - ADMISSIONS
22 C.F.R. 40.21(a)(1) ("A Consular Officer may make a finding of ineligibility under INA 212(a)(2)(A)(i)(I) based upon an alien's admission of the commission of acts which constitute the essential elements of a crime involving moral turpitude, only if the acts constitute a crime under the criminal law of the jurisdiction where they occurred. However, a Consular Officer must base a determination that a crime involves moral turpitude upon the moral standards generally prevailing in the United States.").