(C)  Limitations on Use.  Ironically, noncitizens may be in a better position if their illegal activity resulted their being arrested and subjected to some form of criminal disposition than if they had never been subjected to criminal proceedings at all.  Under the Foreign Affairs Manual, “[a]n admission by an alien is deemed ineffective with respect to a crime for which the alien has been tried and acquitted, or for which charges have been dismissed by a court.”[78]  Additionally, “[a] plea of guilty in a trial will not constitute an admission if a conviction does not result or if it is followed by a new trial and subsequent acquittal or dismissal of charges.”[79]

               

                This rule is based upon the idea that the immigration authorities should not go behind, or beyond, the findings of the criminal court.[80]  The rule therefore does not prevent using an admission where the noncitizen was arrested, but released without prosecution.[81]  Likewise, it appears that a criminal case dismissed on technical grounds may not prevent the use of an independent admission.[82]

                The general rule, however, is that where there has been a judicial criminal disposition regarding a particular act, an admission of that act cannot have any greater immigration consequences than the disposition itself: 

 

We are aware of no case in which a plea of guilty made in criminal proceedings, which resulted in something less than a conviction, or in a conviction with a recommendation against deportation or a subsequent pardon or expungement, was found a sufficient admission, without more, to sustain a finding of deportability.  As we pointed out in Matter of G, supra, the plea to an indictment or complaint is so much an integral part of the entire criminal proceeding that it cannot be isolated from the final result of that proceeding, and given more force or finality than that result. Under the interpretation urged by the Service, the mechanics of the criminal proceeding would overshadow the outcome; an alien found guilty after trial, whose case is placed on file, is not excludable, whereas the alien found guilty on his plea, whose case is placed on file, would be excludable.  We are not persuaded that it was ever intended the “admission” provisions of section 212(a)(9) should have such a result. Where, as here, an alien has been the subject of court proceedings on criminal charges and the ultimate disposition of those charges by the court falls short of a conviction, or nullifies that conviction for deportation or exclusion purposes by a recommendation against deportation (or the same result is reached thereafter by a pardon), the “admission” provisions cannot be called into play to give the intermediate step of pleading a stronger effect than the ultimate disposition could have under the immigration laws.[83]

 

Therefore, any non-conviction criminal disposition that works to avoid inadmissibility on the basis of a crime of moral turpitude or controlled substances should also work to avoid inadmissibility on the basis of an admission.[84]  This should be true even if the noncitizen has already made an independent admission to the immigration authorities.[85]

 

For example, an admission to a specific act should have no immigration effect beyond the criminal disposition where:

 

·         The noncitizen was acquitted.[86]

 

·         A finding of guilt was followed by a new trial and subsequent acquittal or dismissal of charges.[87]

 

·         An effective executive pardon has been granted.[88]

 

·         A timely and proper judicial recommendation against deportation was given.[89]

 

·         A guilty plea has been vacated as constitutionally invalid.[90]

               

                When expungements worked to erase the immigration consequences of a conviction, they also worked to block the use of an admission.[91]  While most expungements are no longer effective to erase the immigration consequences of a conviction,[92] an expungement under the Federal First Offender Act, or an equivalent state or foreign expungement when the case arises within the Ninth Circuit,[93] should eliminate the consequences of an admission to committing a first-time simple possession offense or other equivalent offense.

 

An adjudication of a criminal offense in juvenile court does not constitute a criminal “conviction” for immigration purposes, and will therefore not trigger any of the adverse immigration consequences that flow from a “conviction.”  See § 12.21, supra.[94]  Applying the rule, an admission of facts that resulted in a finding of juvenile delinquency likewise should not be sufficient to qualify as an “admission” for immigration purposes.  See § § 12.30 (CSO), 12.32 (CMT), supra.

 

                Under the Foreign Affairs Manual, juvenile acts of possession or use of a controlled substance, whether prosecuted or not, are not considered grounds of inadmissibility.[95]  However, an admission of a juvenile commission of a drug trafficking, manufacturing, or import/export offense is considered sufficient to create a “reason to believe” illicit trafficking ground of inadmissibility.[96]

The BIA held, in Matter of Winter, [97] that a Massachusetts criminal disposition that was not yet final, because the case had been placed “on file,” could not be used as a “conviction” for immigration purposes, and that an admission of the facts giving rise to the criminal case likewise could not be used to sustain the CMT charge of inadmissibility.  The rule that a criminal proceeding that is not yet “final” cannot be used to trigger removal still applies today in most circuits.  See § 7.37, supra.[98]  Therefore, where a criminal case is proceeding or on direct appeal, an admission of the acts at issue in the case likewise does not trigger inadmissibility. 

 

There are additional non-conviction dispositions, such as deferred prosecution, deferred sentence, and deferred verdict, that should not be considered “convictions” under immigration law.  See § § 7.27-7.32, supra.[99]  Applying the rule announced in Matter of Winter, an admission should not establish a ground of inadmissibility where the noncitizen received one of these non-conviction dispositions.

 

In the context of determining whether a noncitizen on supervised release from immigration detention had violated the term of the release requiring that he not “commit any crimes, “ the Ninth Circuit has held that a plea of no contest in criminal proceedings is insufficient evidence that the noncitizen has committed a crime, since a nolo contendere plea is not an admission of guilt to the underlying crime.[100]  Applied in this context, even if a conviction were vacated on “purely technical grounds,”[101] for example, a no contest plea should not be taken as sufficient to establish “admission” of a CMT or CSO.

 

The Ninth Circuit has also found that facts assumed to be true by a criminal court of appeals for the purpose of deciding the sufficiency of the evidence issue cannot constitute an “admission” for immigration purposes, because for that purpose the facts are presumed true, without any actual admission of their truth by the defendant.[102]  The same should be true for facts assumed to be true for the purpose of establishing a factual basis for a plea, unless there is an express stipulation that those facts are true.  See § 8.65, supra.

 

Statements made by a defendant in the course of plea negotiations should not be taken as sufficient, since such statements are not admissions for any purpose.[103]

 

                Finally, an admission to a criminal act cannot constitute an admission of a crime of moral turpitude or controlled substances offense if the admitted acts do not actually constitute CMTs or CSOs.  Admission of a CMT also will not trigger inadmissibility if the noncitizen is eligible for the petty offense, youthful offender, or political offense exceptions to inadmissibility.  See § § 20.29-20.31, infra.

 

[78] Foreign Affairs Manual Note 5.2 to 22 C.F.R. § 40.21(a).

[79] Foreign Affairs Manual Note 5.6 to 22 C.F.R. § 40.21(a).

[80] See Matter of I, 4 I. & N. Dec. 159 (BIA 1950) (explaining that 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 facts).

[81] Foreign Affairs Manual Note 5.4 to 22 C.F.R. § 40.21(a) (arrest without prosecution will not prevent use of admissions).

[82] Matter of CYC, 3 I. & N. Dec. 623 (BIA 1949) (where there has been a judicial adjudication of the criminal charge before the court, resulting in the dismissal of the proceedings, the noncitizen should not be held bound by an independent admission of the commission of the crime charged unless the criminal court’s action is based on purely technical grounds, such as the running of the statute of limitations or an acquittal obtained on the basis of perjured testimony).

[83] Matter of Winter, 12 I. & N. Dec. 638, 641-642 (BIA 1968) (Massachusetts “placed on file” disposition after guilty plea not sufficiently final to constitute conviction, under Pino v. Landon, 349 U.S. 901 (1955), and plea therefore not considered “admission” of CMT).

[84] Compare Foreign Affairs Manual Note 5.3 to 22 C.F.R. § 40.21(a) (an admission augmenting the facts revealed by a conviction for a crime which does not appear to involve moral turpitude may be such that, on the basis of the facts revealed by the conviction and admission taken together, a finding of ineligibility may be appropriate).  This note goes to the issue of using an admission to supplement a record of conviction where the criminal disposition did result in a conviction, but not necessarily conviction of a CMT or CSO.  See also Matter of I, 4 I. & N. Dec. 159 (BIA, AG 1950) (independent admission supports exclusion where noncitizen convicted on same facts of lesser offense not involving moral turpitude).

[85] Matter of CYC, 3 I. & N. Dec. 623, 629 (BIA 1950) (dismissal of charges overcomes independent admission); Matter of EV, supra (expungement under California Penal Code § 1203.4 controls even where admission made to immigration judge).

[86] Matter of CYC, 3 I. & N. Dec. 623, 629 (BIA 1950).

[87] Foreign Affairs Manual Note 5.6 to 22 C.F.R. § 40.21(a); Matter of CYC, 3 I. & N. Dec. 623 (BIA 1949) (where there has been a judicial adjudication of the criminal charge before the court, resulting in the dismissal of the proceedings, the noncitizen should not be held bound by an independent admission of the commission of the crime charged unless the criminal court’s action is based on purely technical grounds, such as the running of the statute of limitations or an acquittal obtained on the basis of perjured testimony).

[88] Matter of EV, 5 I. & N. Dec. 194 (BIA 1953).

[89] Rasmussen v. Robinson, 163 F.2d 732 (3d Cir. 1947).

[90] Matter of Seda, 17 I. & N. Dec. 550 (BIA 1980), overruled on other grounds by Matter of Ozkok, 19 I. & N. Dec. 546 (BIA 1988).

[91] Dillingham v. INS, 267 F.3d 996 (9th Cir. 2001) (admission made in the course of a drug conviction that was later expunged under British rehabilitative relief cannot form the basis of an inadmissibility charge); Matter of EV, 5 I. & N. Dec. 194 (BIA 1953) (California Penal Code § 1203.4 expungement); Matter of G, 1 I. & N. Dec. 96 (BIA 1942) (dismissal pursuant to Texas recidivist statute).

[92] See Matter of Ozkok, 19 I. & N. Dec. 546 (BIA 1988) (providing new definition for resolutions not amounting to a conviction.)

[93] Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000) (a state rehabilitative disposition is not a conviction for immigration law purposes if it is a counterpart to the Federal First Offender Act); Matter of Seda, 17 I. & N. Dec. 550 (BIA 1980) (state counterpart of Federal First Offender Act, does not result in a conviction).

[94] Matter of Devison, 22 I. & N. Dec. 1362 (BIA 2000); Matter of De La Nues, 18 I. & N. Dec. 140 (BIA 1981); Matter of Ramirez-Rivero, 18 I. & N. Dec. 135 (BIA 1981) (Cuban conviction); Matter of F, 4 I. & N. Dec. 726 (BIA 1952) (adult was not inadmissible for admitting a crime involving moral turpitude where the admission concerned juvenile delinquency conduct, not criminal conduct); Matter of A, 3 I. & N. Dec. 368 (BIA 1948); Matter of O’N, 2 I. & N. Dec. 319 (AG 1945); Matter of MU, 2 I. & N. Dec. 92 (BIA 1944) (admission by adult of activity committed while noncitizen was a minor is not an admission of committing a crime involving moral turpitude triggering inadmissibility). The BIA’s holdings in the earlier of these cases were adopted by the State Department in 52 Fed. Reg. 17,942 (May 13, 1987) (amending [former] 22 C.F.R § § 41.91(a)(9) and (10) and 42.91(a)(9) and (10)) (new rule inapplicable to a juvenile tried as an adult for a violent crime).  But see United States v. Gutierrez-Alba, 128 F.3d 1324 (9th Cir. 1997) (without discussion of issue of juvenile delinquency, juvenile’s guilty plea in adult criminal proceedings constitutes admission, regardless of whether adult criminal court prosecution was ineffective due to defendant’s minority status).

[95] Foreign Affairs Manual Note 2.1 to 22 C.F.R. § 40.21(b).

[96] INA § 212(a)(2)(C), 8 U.S.C. § 1182(a)(2)(C).  See Foreign Affairs Manual Note 2.2 to 22 C.F.R. § 40.21(b).  The issues discussed here do not apply to the “reason to believe” drug trafficking ground, or the “drug abuser/addict” ground under INA § 212(a)(1), 8 U.S.C. § 1182(a)(1).  In the context of the “reason to believe” ground of inadmissibility, even a juvenile delinquency disposition finding only simple possession is not sufficient to invalidate an admission to drug trafficking. 

[97] Matter of Winter, 12 I. & N. Dec. 638 (BIA 1967, 1968) (case placed “on file” under Massachusetts statute).

[98] Pino v. Landon, 349 U.S. 901 (1955); Zamora-Morel v. INS, 905 F.2d 833, 839 n.3 (5th Cir. 1990) (Texas deferred adjudication disposition held not to be a final conviction); Martinez-Montoya v. INS, 904 F.2d 1018, 1025 (5th Cir. 1990) (same); Aguilera-Enriquez v. INS, 516 F.2d 565, 570 (6th Cir. 1975) (a person has not been convicted of a federal crime for purposes of deportation until a judgment has been entered and direct appeal has been exhausted or waived); Matter of Winter, 12 I. & N. Dec. 638 (BIA 1968) (no conviction despite guilty plea); Matter of LR, 7 I. & N. Dec. 318, 322 (BIA 1956, AG 1957); Matter of O, 7 I. & N. Dec. 539, 541 (BIA 1957).  But see Montenegro v. Ashcroft, 355 F.3d 1035, 1037 (7th Cir. 2004) (new IIRAIRA statutory definition of “conviction” eliminated finality requirement) (possibly dictum); Renteria-Gonzales v. INS, 322 F.3d 804 (5th Cir. 2002) (same); Moosa v. INS, 171 F.3d 994, 1008-1010 (5th Cir. 1999) (same).  See N. Tooby & J. Rollin, Safe Havens: How to Identify and Construct Non-Deportable Convictions § § 4.20-4.23 (2005).

[99] See N. Tooby & J. Rollin, Safe Havens: How to Identify and Construct Non-Deportable Convictions (2005), § § 4.17-4.19.

[100] United States v. Nguyen, 465 F.3d 1128 (9th Cir. Oct. 18, 2006) (federal conviction under 8 U.S.C. § 1253(b) for willful failure to comply with a term of release under supervision -- which required that he not “commit any crimes” -- is reversed where misdemeanor nolo contendere convictions were legally insufficient to support his conviction, because a nolo contendere plea is not an admission of guilt to the underlying crime; a conviction based on such a plea does not prove that he “commit[ted] any crimes;” the convictions should not have been admitted under Federal Rules of Evidence 410, 803(22), or 803(8) for the purpose of proving that he actually committed the underlying crimes charged).

[101] See Matter of CYC, supra.

[102] Morales v. Gonzales, 472 F.3d 689 (9th Cir. Jan. 3, 2007) (defendant did not admit truth of facts stated in criminal court of appeals decision, deciding question of sufficiency of evidence to sustain conviction, for purposes of inclusion in record of conviction to determine nature of conviction for immigration purposes, because admission was for limited criminal purposes only, and not in a way that is binding for the purposes of conviction and subsequent proceedings or for all future purposes; “No factual findings are actually made, and no admissions are entered into by the defendant. Instead, for the sole purpose of determining the sufficiency of the evidence, the evidence is presumed true. It was from this isolated context that the IJ drew the facts and circumstances of Morales’s conviction. This is far different from relying on a charging document read in conjunction with a valid plea agreement, where a defendant admits the alleged facts in a way that is binding for the purposes of conviction and subsequent proceedings. See Lara-Chacon v. Ashcroft, 345 F.3d 1148, 1152 (9th Cir. 2003). Here, in her appeal, Morales did not admit the truth of the evidence presented by the State for all future purposes; she simply allowed the state appellate court to assume the truth of the State’s evidence for the purpose of her challenge to its sufficiency.”).

[103] A criminal defendant’s offer to plead guilty “is inadmissible in any action or in any proceeding of any nature . . . . “California Evid. Code, § 1153.  “The purpose of the statute is to promote the public interest by encouraging the parties to settle a criminal case without the necessity of a trial.”  People v. Magana (1993) 17 Cal.App.4th 1371, 1376.  “Bona fide plea negotiations include statements made to the trial court and to the prosecuting attorney because those are the participants in a plea bargain.”  Id. at p. 1377.

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.").