Criminal Defense of Immigrants


§ 21.5 2. Admission of a Controlled Substances Offense

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A noncitizen seeking admission to the United States or trying to become a lawful permanent resident can be found inadmissible on the basis of committing a controlled substances offense, even if there was no conviction.[19]  The other elements of this ground of inadmissibility are the same as the conviction-based controlled substances ground, and the same arguments and defenses may therefore apply.  See § 21.4, supra.


As a matter of practice,[20] in order to take an admission sufficient to sustain a finding of inadmissibility equivalent to that of a noncitizen convicted of a crime of moral turpitude (CMT) or controlled substances offense (CSO), an officer of the DOS, DHS, EOIR,[21] or a police officer[22] must:          


(1)     Record the entire Q&A for the purpose of creating a verbatim transcript for the record.[23]


(2)     Place the noncitizen under oath.[24]


(3)     Explain the purposes of the interrogation (i.e., to obtain an admission of committing the crime for inadmissibility purposes, or confession for criminal purposes) to ensure that the statements are voluntarily and freely made.[25]


(4)     Provide to the noncitizen an adequate definition of the crime, including all essential elements, in terms the noncitizen can understand,[26] before the questioning begins.[27] 

(5)     Ask the noncitizen to admit each of the facts necessary to establish the essential elements of the crime.[28]


(6)     Ensure the admission of those facts is explicit, unequivocal, and unqualified.[29]  It must also be affirmative or express.[30]

(7)     Ensure that (where an admission is taken independent of any other evidence), the admission is developed to the point where “there is no reasonable doubt that the alien committed the crime in question.”[31]


The acts must constitute a crime under the law of the United States, [32] in addition to constituting a crime in jurisdiction in which the acts were committed.[33]  Of course, the offense admitted must constitute a CMT or CSO.[34]


See § 18.8, supra, for further discussion regarding admissions. 

[19] INA § 212(a)(2)(A)(i), 8 U.S.C. § 212(a)(2)(A)(i).

[20] Matter of K, 7 I. & N. Dec. 594, 597 (“The rules which were promulgated were not based on any specific statutory requirement but appear to have been adopted for the purpose of insuring that the alien would receive fair play and to preclude any possible later claim by him that he had been unwittingly entrapped into admitting the commission of a crime of moral turpitude.”).

[21] Matter of C G, 1 I. & N. Dec. 70 (BIA Apr. 22, 1941) (admission made before “board of special inquiry”).

[22] FAM Note 5.7 to 22 C.F.R. § 40.21(a).

[23] Ibid.

[24] FAM Note 5.1 to 22 C.F.R. § 40.21(a).

[25] Matter of G, 1 I. & N. Dec. 225 (BIA 1942); Matter of J, 2 I. & N. Dec. 285 (BIA 1945); Matter of EV, 5 I. & N. Dec. 194 (BIA 1953); Matter of G, 1 I. & N. Dec. 225, 227 (BIA 1942) (where there has been a refusal to make an admission, it is not competent to extract an admission that is not voluntary on the part of the noncitizen, as by insistent questioning).

[26] Merely translating the legal text of a statute into the noncitizen’s native language is insufficient.  Matter of G M, 7 I. & N. Dec. 40 (BIA 1956).

[27] FAM Note 5.1 to 22 C.F.R. § 40.21(a).

[28] Matter of GM, 7 I. & N. Dec. 40 (BIA 1955) (to sustain a finding of inadmissibility as one who has admitted acts constituting the essential elements of a crime involving moral turpitude, the noncitizen must have admitted all the elements of the crime involved and must have been furnished with a definition of such crime in understandable terms).  The admission of acts that lead only to an inference of the commission of a crime involving moral turpitude is not sufficient.  Howes v. Tozer, 3 F.2d 849 (1st Cir. 1925).  See also Matter of CG, 1 I. & N. Dec. 70 (BIA 1941) (when a noncitizen in applying for admission falsely testifies that a woman accompanying him is his wife, whereas in fact he intended to resume an illicit relationship with her, he is not inadmissible as a person admitting the commission of perjury, a crime involving moral turpitude, since his false testimony was not material to his right to enter the United States); Matter of C, 1 I. & N. Dec. 14 (BIA, AG 1940) (record discloses merely that respondent had lied as to his employment but had not admitted the essential elements of the crime of perjury).

[29] FAM Note 5.1 to 22 C.F.R § 40.21(a); Matter of L, 2 I. & N. Dec. 486 (BIA 1946) (to constitute a ground of inadmissibility, the admission of the commission of an offense involving moral turpitude must be voluntary, unequivocal, and unqualified).

[30] Matter of G M, 7 I. & N. Dec. 40 (BIA 1956) (that noncitizen did not deny committing an element of an offense is not the same as an admission).

[31] FAM Note 5.11 to 22 C.F.R. § 40.21(a).

[32] Matter of McNaughton, 16 I. & N. Dec. 569, 572 (BIA 1978) (Canadian conviction for conduct that was illegal under Canadian law: “[W]hen a foreign conviction is the basis for a finding of inadmissibility, the conviction must be for conduct which is deemed criminal by United States standards.  It is a necessary element that the act underlying the conviction be something forbidden by United States law.”).

[33] 22 C.F.R. § 40.21(a)(1); 64 Fed. Reg. 55417 (Oct. 13, 1999); Pazcoguin v. Radcliffe, 292 F.3d 1209, 1216 (9th Cir. June 25, 2002); Matter of K, 7 I. & N. Dec. 594 (BIA 1957) (an admission of a crime involving moral turpitude must involve an admission of acts constituting each of the essential elements of a crime involving moral turpitude, and must have been made after the noncitizen had been furnished a definition of the offense in understandable terms, since that is required to insure a fair hearing and to preclude a later claim of unwitting entrapment); Matter of L, 1 I. & N. Dec. 666 (BIA 1943) (admission of crime involving moral turpitude irrelevant unless law in jurisdiction where committed forbids the conduct and the conduct involves moral turpitude); Matter of P, 1 I. & N. Dec. 33 (BIA, AG 1941) (admission of stealing money in Italy does not constitute admission of crime involving moral turpitude when there is no evidence of criminal intent or that noncitizen’s conduct constituted a crime).  But see Matter of G, 5 I. & N. Dec. 559 (BIA 1959) (noncitizen inadmissible for prostitution notwithstanding that the acts took place in former French Morocco where noncitizen’s actions were legal).

[34] Matter of N & B, 2 I. & N. Dec. 206 (BIA 1944) (admission of making false statement before Board of Special Inquiry concerning matter which, if admitted, would not have triggered inadmissibility was not material, and therefore could not have constituted perjury in violation of 18 U.S.C. § 231, and was therefore not an admission of a crime involving moral turpitude).



Eighth Circuit

Garcia-Gonzalez v. Holder, 737 F.3d 498, 500 (8th Cir. Dec. 9, 2013) (By agreeing in his plea agreement that the Government could have proved the factual basis for his racketeering conviction beyond a reasonable doubt, Garcia"Gonzalez admitted to each of the elements of a violation of 846.).