(B)

Admission of a Conviction.  In the context of admitting a controlled substances violation, the Second Circuit has found that a noncitizen may properly admit having been convicted of a CSO.  In Francis v. Gonzales,[49] 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”[50] 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.[51] 

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

[50] See § § 2.3-2.12, supra.

[51] 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.”).

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).").