Over eight years ago, when she was a minor, Mrs. G entered the USA without inspection. Now she and her U.S. citizen husband have three children, all under the age of 5. Because of the unlawful entry, however, Mrs. G couldn’t get a green card inside the USA. We helped her with consular processing and a waiver application. The American Consulate in Mexico interviewed her early in June of 2009. Two months later, her waiver was approved and she was reunited with her family in Texas! Result by Mr. Humble.
Admissions Equal Inadmissibility
How to Avoid Inadmissibility Even if Not Convicted
The definition of a conviction under immigration law includes deferred adjudication or “suspended sentences.” Which means if you get “deferred” you are still “convicted” of the offense under immigration law. See 101(a)(48)(A) of the Immigration and Nationality Act “INA”. This is itself problematic as many criminal lawyers advise immigrants that they are not convicted if they accept a plea for deferred.
However, there is an issue with regard to admissibility even if you accept a pre-trial diversion or “memo agreement” that one should consider. Specifically, immigration law allows for a person to be inadmissible even if they simply admit to the essential elements of the offense.
One common ground of inadmissibility fall under the category of “Crimes Involving Moral Turpitude.” This category of crime is loosely worded and is subject to everlasting re-interpretation and litigation. Under 212(a)(2)(i)(I) of the INA, the law states that a person is inadmissible for this broad category of crime. The law states that a person is inadmissible for such a crime if convicted. Recall, that “conviction” also includes deferred adjudication. However, there are also provisions stating that one is inadmissible if the person "admits having committed, or who admits committing acts which constitute the essential elements" of the crime. See INA 212(a)(2)(A)(i). As such, there should be deep concern with any plea agreement, pre-trial diversion agreement or memo agreement that requires an admission or “judicial confession” to a CIMT. This is because if it requires an admission to the commission of the offense, it will thereby trigger the CIMT ground of inadmissibility under the INA.
As such, if one has to admit the essential elements of the offense, one should consider whether or not there admission falls under the "petty offense exception." This exception allows for one conviction or admission to a CIMT, wherein the punishment imposed is not greater than 180 days and the maximum punishment for the offense cannot exceed one year incarceration. See 212(a)(2)(A)(ii)(II) of the INA. It is important to note that this exception applies only to CIMTs. Therefore, if there is another basis for inadmissibility such as drug convictions, prostitution, domestic violence, fire-arms offenses or other categories listed in 212(a)(2) of the INA, the petty offense issues, even if applicable to the punishment, would not apply.
If the crime is solely a CIMT, then it is important to note that the imposition of punishment is calculated by the term a person would have to serve if the punishment was not probated or suspended in some way. This is what criminal lawyers typically consider the client's "exposure" time. Additionally, it is very important that the range of punishment not exceed one year. This means if you are admitting to the offense, you should be careful to explain that you are admitting only to an offense that has a maximum punishment not to exceed (1) year and your exposure time is less than 180 days!
In the context of a pre-trial diversion agreement or memo agreement, there is generally no exposure time. However, there should be clarification of the "range" of punishment. This is especially important if the agreement requires an admission or judicial confession on part of the defendant. This is also true at the time of a reduction from a felony to a misdemeanor. It is common that during the reduction process that the State requires the Defendant to judicially confess to the felony rather than the misdemeanor. It would be important to amend the confession to fit within the guidelines of the “petty offense exception” before allowing the Defendant to complete the plea.
Typically, the regulations require the alien to prove he/she is admissible to the United States. That means it is the defendant’s burden to prove these exceptions, not the government's burden to disprove them. As such, a defendant who will later be apply for immigration benefits should maintain "certified copies" of the "conviction records." This is defined as the plea bargain agreement, transcript of testimony (if applicable) and charging instrument. In the context of a pre-trial or memo agreement, this would normally only include the agreement itself and the information or indictment.
It is imperative that a defendant classifies any admission as being a “petty offense exception” before a plea is entered or a memo agreement or pre-trial diversion agreement is executed. Once completed, if incorrectly executed, a Defendant may become inadmissible or subject to removal and/or later be denied immigration benefits.
Written By: Sanjay S. Mathur
Board Certified - Immigration & Nationality Law
Texas Board of Legal Specialization
Mr. Mathur is one of the only Board Certified Immigration Lawyers in Texas with over a decade of experience in criminal defense and immigration issues.