(D)  Avoiding Admissions.  Counsel who has a client intending to travel outside the United States, or who is seeking admission, should carefully advise the client regarding the possibilities of being questioned about prior criminal history.  In the best case, a well informed and prepared client can avoid inadmissibility altogether.  It may be sufficient, however, to create enough doubt to preserve arguments that can be made before an immigration judge.

 

                If a client has engaged in illegal activity, counsel should determine whether an admission of the activity will trigger inadmissibility as a crime of moral turpitude or a controlled substances offense.  If an argument can be made that the activity does not trigger inadmissibility, the client may want to carry a letter (and any supporting documents) explaining why the activity is not a CMT or CSO.

 

                The client should never lie to a federal official regarding criminal history, and counsel should never advise a client to lie.  Making a material false statement to obtain immigration benefits is both a ground of inadmissibility,[104] and a federal criminal offense.[105]  However, there is no reason a client cannot state (if true), that s/he does not remember the particular details of the prior activity.  Counsel should inform clients of their options in answering DHS questions, and the possible consequences of those answers.

 

                If necessary, the client can assert the right against self-incrimination.  The Fifth Amendment privilege against self-incrimination can be asserted before the immigration authorities.[106]  However, it is effective only with regard to testimony which could make the noncitizen subject to criminal prosecution.[107]  The Fifth Amendment cannot be invoked when the question is merely whether a noncitizen may be admitted to the United States.[108]  Because Congress has defined so many criminal offenses relating to immigration issues, however, the Fifth Amendment privilege is very broad.  The noncitizen has a Fifth Amendment right to remain silent concerning immigration matters, since the answers to questions could provide a link in the chain of evidence necessary to convict the defendant of immigration offenses such as giving a false statement to a federal officer,[109] illegal entry,[110] or illegal re-entry after deportation.[111]  The privilege against self-incrimination can be exercised even after a guilty plea has been entered.[112]  Miranda warnings do, however, not have to be given, except possibly “if the inspector’s questions objectively cease to have a bearing on the grounds for admissibility and instead only further a potential criminal prosecution . . . .”[113]

 

                The factfinder can also draw an adverse inference from assertion of the Fifth Amendment privilege.[114]  Where the noncitizen is seeking admission to the United States, such an adverse inference is sufficient, without further evidence, to allow the fact finder to sustain a ground of inadmissibility.[115]  Therefore, asserting the Fifth Amendment will not generally prevent a finding of inadmissibility.

               

If the noncitizen retracts the admission of a crime of moral turpitude, a consular official will evaluate the admission for its truthfulness and can decide to credit the retraction and reject a finding of inadmissibility.[116]

[104] INA § 212(a)(6)(C), 8 U.S.C. § 1182(a)(6)(C).

[105] See, e.g., 18 U.S.C. § 1001.

[106] See Kastigar v. United States, 406 U.S. 441, 444 (1972) (person may invoke Fifth Amendment privilege “in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory”); Bigby v. USINS, 21 F.3d 1059 (11th Cir. 1994) (attorney may invoke privilege on behalf of client, at least where there is no objection to him or her doing so); Matter of Carrillo, 17 I. & N. Dec. 30 (BIA 1989) (Fifth Amendment privilege against self-incrimination properly invoked despite District Director’s representation the INS would not bring criminal charges against respondent). 

[107] Matter of Santos, 19 I. & N. Dec. 105, 109 n.2 (BIA 1984).

[108] See, e.g., 8 C.F.R. § 236.1(d)(1) (burden on noncitizen to show admissibility); United States v. Gupta, 183 F.3d 615 (7th Cir. 1999).

[109] 18 U.S.C. § 1001.

[110] INA § 275, 8 U.S.C. § 1325.

[111] INA § 276, 8 U.S.C. § 1326.

[112] Mitchell v. United States, 526 U.S. 314 (1999).

[113] United States v. Kiam, 432 F.3d 524, 530 (3d Cir. Jan. 3, 2006).

[114] INS v. Lopez-Mendoza, 468 U.S. 1032 (1984); Bilokumsky v. Tod, 263 U.S. 149, 154 (1923); United States v. Solano-Godines, 120 F.3d 957, 962 (9th Cir. 1997).

[115] United States v. Sing Tuck, 194 U.S. 161 (1904). 

[116] Foreign Affairs Manual Note 5.8 to 22 C.F.R. § 40.21(a).

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.").