Criminal Defense of Immigrants

(F)  Date of Determination of Admissibility.  The determination of whether the person qualifies for the Petty Offense Exception is made under the law as it existed at the time entry was sought, rather than under the law at the time the criminal acts or conviction occurred.[196]  A returning resident, however, who was paroled into the United States because of pending criminal charges, and who was later convicted of a crime involving moral turpitude, was excludable on the basis of the conviction.[197]  If a United States citizen was convicted of an offense that triggers inadmissibility, and then later expatriated, s/he was at that point excludable because s/he was a noncitizen with an excludable conviction at the time s/he attempted to enter the United States.[198]

[196] Squires v. INS, 689 F.2d 1276 (6th Cir. 1982).

[197] Matter of K, 9 I. & N. Dec. 143 (AG 1961), upheld in Klapholz v. Esperdy, 201 F.Supp. 294 (S.D.N.Y. 1961), aff’d per curiam, 302 F.2d 928 (2d Cir.), cert. den., 371 U.S. 891 (1962).  Cf. Matter of Alvarez-Verduzco, 11 I. & N. Dec. 625 (BIA 1966); Matter of B, 2 I. & N. Dec. 172 (BIA 1944).

[198] Matter of S, 5 I. & N. Dec. 678 (BIA 1954).  Cf. Marks v. Esperdy, 315 F.2d 673 (2d Cir. 1963), aff’d, 377 U.S. 214 (1964).