CRIMINAL WITHOUT alien3 need only admit his criminal activity 4 CONVICTION – to be inadmissible to the United States. PROSECUTING THE However, to be legally effective, these admissions must be handled in strict UNCONVICTED ARRIVING compliance with the law. CRIMINAL ALIEN UNDER SECTION 212(a)(2)(A) OF THE Initially, one might wonder why IMMIGRATION AND any individual would admit to uncharged NATIONALITY ACT criminal activity. Criminals in high crime areas routinely avoid police and seldom Keith Hunsucker respond to any questioning. However, Senior Legal Instructor arriving aliens are often not as criminal savvy as the common street criminal. The United States has long Additionally, unlike the common street proscribed the admission of non-citizens criminal, the arriving alien must answer who admit having committed crimes.1 As law enforcement questions to gain set forth in the Immigration and admission to the United States. Therefore, Nationality Act (INA): arriving aliens are much more likely to confess their criminal acts, especially any alien ... who admits when confronted with their prior criminal having committed, or who activity. admits committing acts which constitute the Immigration Inspectors and Border essential elements of ... a Patrol Agents are the officers who most crime involving moral commonly encounter the arriving alien. turpitude ... or an attempt or However, other law enforcement officers conspiracy to commit such frequently encounter aliens who they a crime ... or a violation of suspect are involved in illegal activity. If any law ... relating to a information regarding this activity is controlled substance ... is routed to appropriate immigration inadmissible.2 authorities, such information can be It is common knowledge that many 3 An alien is “... any person not a citizen or national individuals have committed serious crimes of the United States.” INA § 101(a)(3), 8 U.S.C § for which they have not been convicted. It 1101(a)(3) is fortunate for law enforcement that an 4 Due to the incredible complexity of United States immigration law, some of these individuals might still be legally allowed to remain in the United States. However, a finding of inadmissibility under 1 Once an alien is deemed inadmissible, he might section 212(a)(2)(A)(i) has a significant impact on still in fact avoid removal through various forms of an alien’s case and usually means that the alien will relief. It is impossible to address all these facets of not be allowed to enter the United States or adjust the ever-changing immigration law in an article of their legal status within the United States. A law this length. This article is limited to a discussion of enforcement officer working with United States procuring admissions of criminal activity to immigration laws should understand that section successfully obtain a finding of inadmissibility 212(a)(2)(A)(i) is a very useful tool, but it (like under the INA. many other charges under the INA) does not 2 INA § 212(a)(2)(A)(i), 8 U.S.C § guarantee removal of the alien from the United 1182(a)(2)(A)(i)(emphasis added) States. documented and used as a basis of committed one of those offenses, even questioning if the alien departs the United where there was no criminal prosecution.10 States and attempts re-entry, or seeks to Finally, these aliens need only admit the adjust his status within the United States.5 essential elements of the criminal offense If the alien admits to such criminal to be deemed inadmissible.11 It is not activity, the alien can then be refused necessary that they admit the legal admission to the United States, even conclusion that they in fact committed a though he has not been convicted of the specific crime.12 criminal offense. A plain reading of the statute This article gives an overview of suggests that factual admissions of the law in this area and provides practical criminal activity by the alien are sufficient advice to the law enforcement officer on to support a criminal charge of how to obtain an admission of criminal inadmissibility. However, these activity sufficient to support a finding of admissions must comply with seldom- inadmissibility under section cited13 but long-standing case law from the 212(a)(2)(A)(i) of the INA.6 Board of Immigration Appeals14 (the Board) to effectively support a charge of THE LAW inadmissibility. The INA provides that arriving aliens are inadmissible to the United States if they have been convicted of a crime 10 See INA § 212(a)(2)(A)(i), 8 U.S.C § 7 1182(a)(2)(A)(i) involving moral turpitude, an attempt or 11 8 Matter of E-V-, 5 I&N Dec. 194 (BIA 1953) conspiracy to commit such a crime, or a 12 Id. violation of a controlled substance offense 13 It is not exactly clear why there are not more of any State, the United States, or a recent precedent decisions on this issue. However, foreign country.9 These aliens are also there are numerous different factors to consider. inadmissible if they merely admit having First, INS trial attorneys are actively discouraged from appealing adverse decisions. As a result, when the Immigration Court admits an alien 5 Whether the alien has been legally admitted to the charged with admitting criminal activity, it is very United States is a separate issue. The purpose of unlikely the INS will appeal, even if it believes the this article is to demonstrate how an alien an alien decision was wrong. Secondly, since aliens seeking admission to the United States or seeking admission to the United States are often adjustment of his immigration status can be detained throughout the hearing process, they punished for criminal activity for which he has not frequently elect removal from the United States been convicted. rather than remaining in detention throughout a 6 8 U.S.C. § 1182(a)(1)(A)(i). Trial attorneys of lengthy appeal. Finally, it appears that many the Immigration and Naturalization Service (INS) officers are simply not knowledgeable about this may also wish to employ the tactics suggested in charge, and therefore do not use it aggressively. this article to obtain admissions of criminal activity This article seeks to increase that knowledge, and in Immigration Court. thereby increase the application of this charge of 7 See INA § 212(a)(2)(A)(i)(I), 8 U.S.C § inadmissibility. 1182(a)(2)(A)(i)(I) 14 The Board of Immigration Appeals is part of the 8 Id. Executive Office for Immigration Review, United 9 See INA § 212(a)(2)(A)(i)(II), 8 U.S.C § States Department of Justice. It is an administrative 1182(a)(2)(A)(i)(II). There is an exception to this panel charged with reviewing the decisions of rule for crimes committed by minors and certain Immigration Judges. Its precedent decisions are petty offenses. See INA § 212(a)(2)(A)(ii), 8 binding on these judges. See generally 8 C.F.R. U.S.C. § 1182(a)(2)(A)(ii). 3.1. In Matter of K-, the Board held that not usurp criminal self-incrimination law before an alien can be charged with such as Miranda v. Arizona.17 inadmissibility due to admitting the Immigration proceedings are not criminal, elements of a crime involving moral and therefore an alien may be compelled turpitude, the alien must be given the to explain his criminal activity if he wants following: 1) an adequate definition of the any immigration benefits, including crime, including all essential elements, and admission to the United States. The 2) an explanation of the crime in alien’s answers or refusal to answer may understandable terms.15 The Board noted result in his being denied admission to the that these rules “were not based on any United States. However, if a law specific statutory requirement but appear enforcement officer wants to obtain to have been adopted for the purpose of information for use in a criminal insuring that the alien would receive fair prosecution, he must comply with criminal play and to preclude any possible later rules of obtaining evidence. In sum, claim by him that he had been unwittingly section 212(a)(2)(A) is a valuable tool for entrapped into admitting the commission removing aliens who admit to criminal of a crime involving moral turpitude.”16 activity for which they have not been convicted. It is not a means to compel an Experience has demonstrated that individual to criminally incriminate very few law enforcement officers are themselves in violation of the Fifth aware of these rigid requirements. This is Amendment. probably due to several reasons. First, the statute does not suggest the need to THE ADMISSIONS provide a specific definition and explanation of the criminal charge to the As noted, the alien need only admit alien. Secondly, it hardly seems to violate the elements of the crime, not the legal the notion of “fair play” to ask an arriving conclusion that he actually committed the alien if he has been involved in criminal crime.18 However, the admissions must be activity. Finally, the issue of entrapment voluntary19 and unequivocal.20 The appears entirely misplaced because there is admissions must, by themselves, constitute no government inducement. full and complete admission of (or attempt or conspiracy to commit) a crime Nonetheless, since Matter of K- involving moral turpitude or a controlled and related cases have been precedent for substance offense.21 If an alien has over 40 years, it seems unlikely that the current Board will be inclined to overrule 17 384 U.S. 436 (1966) them. While not explicitly stated, it seems 18 Matter of K-, supra, citing Matter of E-V-, 5 I&N that the real concern of the Board is one of Dec.