Written by attorney Daniel Shanfield

Immigration Guide: Crimes Involving Moral Turpitude, Inadmissibility, and Categorical Analysis (1)

Section 212(a)(2)(A)(i) of the Immigration and Nationality Act renders inadmissible any non-citizen convicted, or who admits committing, or who admits committing the essential elements of, a “crime involving moral turpitude" (CIMT). A key exception to this rule exists however where the non-citizen has been convicted of only one crime involving moral turpitude, and the maximum possible sentence for the offense does not exceed one year, and the sentence ordered does not exceed six months.[1]

To prove up inadmissibility for a CIMT conviction, the normal rules for establishing a “conviction" under INA § 101(a)(48) apply. Inadmissibility may also be established where the non-citizen has admitted to committing a CIMT, or has admitted to committing the essential elements of a CIMT, but only if certain BIA mandated requirements are met.[2] First, the admitted conduct must constitute all essential elements of a CIMT. Second, the non-citizen must have been provided with a definition of the essential elements of the CIMT offense before making the admission. Lastly, the admission must be voluntary, unequivocal, or unqualified. The FAM essentially adopts the BIA's requirements, and a consular officer may similarly prove up CIMT inadmissibility at the visa interview under this standard.[3] The Ninth Circuit however has taken a more liberal stance on which admissions are admissible to prove up a CIMT, ruling that only admissions made to a U.S. government official are subject to these requirements. Admissions made to non-U.S. government personnel, such as an examining physician, will be admissible to establish criminal inadmissibility, if evidence of the admission is otherwise trustworthy and adequately encompasses the offense.[4]

Inadmissibility for crimes involving moral turpitude will generally arise in only one of three contexts: where the non-citizen is seeking adjustment of status in the United States,[5] where the non-citizen is applying at a consular post for an immigrant or non-immigrant visa,[6] and where the non-citizen is seeking admission to the United States at a designated port-of-entry.[7]

Lawful permanent residents are generally not subject to the grounds of inadmissibility.[8] However, when seeking admission to the United States at a designated port-of-entry, an LPR convicted of a CIMT is subject to classification as an “arriving alien" and is thereby subject to all other grounds of inadmissibility.[9] However, LPRs seeking admission to the U.S. who entered their plea to the CIMT prior to April 1, 1997 are permitted to benefit under the Fleuti doctrine and thereby avoid classification as “arriving aliens" if departure from the United States was “brief, casual and innocent".[10]

With respect to returning LPRs seeking admission at the port-of-entry, the burden rests with DHS to establish that the LPR shall be treated as an arriving alien pursuant to INA § 101(a)(13)(C).[11] For LPRs placed in removal proceedings as arriving aliens pursuant to INA § 101(a)(13)(C), DHS must produce “some evidence" to show the LPR is inadmissible, which shifts the burden back to the LPR to prove admissibility “clearly and without a doubt".[12]

For non-citizens subject to INA § 212(a)(2)(A)(i) either seeking adjustment of status in the U.S. or pursuing immigrant visa processing at a consular post, inadmissibility may be waived under certain conditions pursuant to INA § 212(h),[13] while those seeking admission as a non-immigrant may in certain cases seek a waiver under INA § 212(d)(3)(A). [14] For lawful permanent residents at the port-of-entry deemed inadmissible under INA § 212(a)(2)(A)(i), these individuals may if otherwise qualified seek a waiver in removal proceedings under INA § 240A(a), or in some cases former INA § 212(c).[15]

*This article is for educational purposes only and does not constitute legal advice, nor does it create an attorney-client relationship between the author and any member of the reading public. If you have a legal problem, you must contact an experienced attorney at once.

[1] INA § 212(a)(2)(A)(ii)(II).

[2] See Matter of K, 7 I&N Dec. 594, 598 (BIA 1957); Matter of L, 2 I & N Dec. 486, 488 (BIA 1946).

[3] See 9 FAM 40.21(a) N5.

[4] Pazcoguin v. Radcliffe, 292 F.3d 1209, 1217-18 (2002).

[5] INA § 245(a)(2).

[6]See INA § 221(g) (No visa or other documentation shall be issued if (1) it appears that the applicant is ineligible to receive a visa or such other documentation under INA § 212 or any other provision of law, (2) the application fails to comply with the INA or regulations (3) the consular officer knows or has “reason to believe" that the applicant is ineligible to receive a visa or other documentation under INA § 212 or any other provision of law); See also 22 CFR § 40.6; 9 FAM 40.6.

[7] 8 CFR § 235.1(a), (f).

[8] INA §101(a)(13)(C).

[9] Id.

[10] Vartelas v. Holder, 132 S. Ct. 1479, 1483, 182 L. Ed. 2d 473 (2012);Camins v. Gonzales, 500 F.3d 872, 884 (9th Cir. 2007); Rosenberg v. Fleuti, 374 U.S. 449, 83 S.Ct. 1804, 10 L.Ed.2d 1000 (1963).

[11] Matter of Valenzuela-Felix, 26 I. & N. Dec. 53 (BIA 2012) (DHS bears the burden of proof by clear and convincing evidence that returning LPR is arriving alien seeking admission under INA § 101(a)(13)(C)).

[12] Kepilino v. Gonzales, 454 F.3d 1057, 1060 (9th Cir. 2006); 8 C.F.R. § 1240.8(b).

[13] Hing Sum v. Holder, 602 F.3d 1092, 1094 (9th Cir. 2010), cf. Matter of Rodriguez, 25 I. & N. Dec. 784 (BIA 2012).

[14] See also 9 FAM 40.301 N1.

[15] Gonzalez-Gonzalez v. Ashcroft, 390 F.3d 649, 651 (9th Cir. 2004); I.N.S. v. St. Cyr, 533 U.S. 289, 326, 121 S. Ct. 2271, 2293, 150 L. Ed. 2d 347 (2001); 8 CFR §212.3.

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