CRIM DEF - JUVENILE - INADMISSIBILITY - ADMISSION OF DELINQUENT CONDUCT NOT AN ADMISSION OF A CMT
A person who admits to delinquent conduct has not made an admission for purposes of inadmissibility under INA 212(a)(2), 8 U.S.C. 1182(a)(2). In Matter of F, 4 I. & N. Dec. 726 (BIA 1952), the Board held that an adult was not inadmissible for admitting a crime involving moral turpitude where the admission concerned juvenile delinquency conduct, not criminal conduct. See also Matter of Seda, 17 I. & N. Dec.
ADMISSION - ADMISSION THAT A PERSON COMMITTED A CRIME IS INSUFFICIENT WHEN THE ACTIONS HE BELIEVED TO BE UNLAWFUL DID NOT IN FACT VIOLATE ANY STATUTE
United States v. Karaouni, 379 F.3d 1139 (9th Cir. Aug. 24, 2004) ("A defendant may not be convicted on the basis of an admission that he committed a crime, when the actions that he believed to be unlawful did not, in fact, violate any statute. Torcia, 1 Wharton's Criminal Law 79 (15th ed., 1993) ("It is fundamental that conduct which is not penally prohibited does not become criminal simply because the actor believed his conduct constituted a crime.").")
CONTROLLED SUBSTANCES - INADMISSIBILITY - ADMISSION OF COMMISSION RULES APPLY TO CONTROLLED SUBSTANCES OFFENSES AS WELL AS TO CMTS
Rules governing admission of commission of a crime involving moral turpitude also apply to admissions of commission of a controlled substances offense. Pazcoguin v. INS, 292 F.3d 1209 (9th Cir. 2002); Legal Opinion 95-4, Excludability under "Zero Tolerance Program'' of U.S. Customs Service, No. HQ 235-P (January 20, 1995).
CONTROLLED SUBSTANCES OFFENSE - INADMISSIBILITY - ADMISSION OF COMMISSION - SIGNING A CIVIL PENALTY DOES NOT CONSTITUTE AN ADMISSION OF COMMISSION OF A CONTROLLED SUBSTANCES OFFENSE
The DHS may not seek to exclude a noncitizen as one who has admitted commission of a controlled substance offense, based solely on having signed the "Agreement to Pay Monetary Penalty" in conjunction with the United States Customs Service "Zero Tolerance Program." Legal Opinion 95-4, Excludability under "Zero Tolerance Program'' of U.S. Customs Service, No. HQ 235-P (January 20, 1995). The Agreement to Pay Monetary Penalty expressly states that the penalty is based upon seizure of one or more controlled substances.
CONTROLLED SUBSTANCES - INADMISSIBILITY - ADMISSIONS - ADMISSION OF COMMISSION OF AN OFFENSE CANNOT BE CONSIDERED IF PLEA OF WHICH IT FORMED A PART HAS BEEN SET ASIDE
In Matter of Seda, 17 I. & N. Dec. 550 (BIA 1989), overruled by Matter of Ozkok, 19 I. & N. Dec. 546 (1988) on other grounds, the BIA said that a judicial admission that did not lead to a conviction would not be a ground of inadmissibility as an admission, but it could still be considered as an unfavorable factor in discretionary determinations. See 8 C.F.R. 316.10(B)(2) (i)&(iv) (concerning admissions not constituting a bar under the petty offense exception), and (3) concerning discretion and "extenuating circumstances."
CRIMES OF MORAL TURPITUDE - INADMISSIBILITY - ADMISSIONS - IMMIGRATION AUTHORITIES SHOULD DEFER TO CRIMINAL DISPOSITION WHERE CASE WENT TO CRIMINAL COURT
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)
In Matter of CYC, 3 I. & N. Dec. 623, 629, 1949 WL 6509 (BIA 1949), the BIA held:
INADMISSIBILITY - ADMISSIONS - ADVERSE INFERENCE FROM ASSERTION OF THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION
An immigration court can draw an adverse inference from a noncitizen's assertion of the Fifth Amendment privilege against self-incrimination. Bilokumsky v. Tod, 263 U.S. 149, 154 (1923); United States v. Solano-Godines, 120 F.3d 957, 962 (9th Cir. 1997). However, where government offers no evidence except respondent's silence, it is insufficient to meet its burden of proof by clear, unequivocal and convincing evidence, and the burden does not shift to respondent. Matter of Guevara, 20 I. & N. Dec. 238 (BIA 1991).
CRIME OF MORAL TURPITUDE - INADMISSIBILITY - PETTY OFFENSE EXCEPTION
Reyes-Morales v. Ashcroft, ___ F.3d ___ (8th Cir. Jan. 31, 2006) (since one of two convictions was not a crime of moral turpitude, and the other qualified for the petty offense exception to inadmissibility, respondent was not inadmissible for crimes under INA 212(a)(2), 8 U.S.C. 1182(a)(2), and therefore not disqualified from eligibility for NACARA special cancellation of removal under NACARA 203), citing Cuadra v. Gonzales, 417 F.3d 947, 949 (8th Cir. 2005).
http://caselaw.lp.findlaw.com/data2/circs/8th/051008p.pdf
PETTY OFFENSE EXCEPTION - REQUIREMENT THAT SENTENCE IMPOSED MUST BE LESS THAN OR EQUAL TO SIX MONTHS
There is an argument that the six-month maximum sentence imposed requirement for the petty offense exception to inadmissibility on account of one CMT conviction, under INA 212(a)(2)(A)(ii)(II), 8 U.S.C. 1182(a)(2)(A)(ii)(II), would not be violated by a sentence imposed of 182 days, since a year consists of 365 days, and half a year (i.e., six months), would therefore consist on average of 182.5 days. Thanks to Jacob Weisberg for this argument.
CRIME OF MORAL TURPITUDE - PETTY OFFENSE EXCEPTION - PROBATION VIOLATION IN CRIMINAL COURT MAY OR MAY NOT CONSTITUTE COMMISSION OF A SECOND CMT TO DISQUALIFY THE RESPONDENT FROM THE BENEFITS OF THE PETTY OFFENSE EXCEPTION
A court finding that a defendant violated a condition of probation does not constitute a conviction, and therefore does not establish that the defendant committed a second CMT for purposes of disqualifying him from the petty offense exception to inadmissibility. If the conduct underlying the violation of probation constitutes CMT conduct (i.e., the commission of a second CMT), then the immigrant would be disqualified from the benefits of the POE. Counsel should examine the petition filed in the criminal court alleging a violation of probation, and any attached documents such as pol
