“Admitting” to Certain Crimes Can Render A Foreign National Inadmissible to the United States under INA §212(a)(2)(A)(i)

August 15th, 2012 by SRW Lawyers

Under the Immigration and Nationality Act (“INA”), an individual can be found inadmissible for a criminal conviction or a controlled substance violation. Inadmissibility based on a previous conviction is a predicable consequence; however, many people are surprised to learn that an individual can also be found inadmissible for simply “admitting” to certain criminal activity, even when there was no conviction, let alone an appearance in court.

Fortunately, case law dictates that an “admission” must meet certain requirements before it can be considered a valid “admission” which renders a foreign national inadmissible to the U.S. under INA §212.

Pursuant to INA § 212(a)(2)(A)(i), an alien may be found inadmissible for “admitting” to the following types of criminal offenses even though there may not have been a conviction:

Except as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of-

(I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime, or

(II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substance Act (21 U.S.C. 802)), is inadmissible.

That being said, the Board of Immigration Appeals (BIA) has devised several requirements that must be met before an admission is valid for the purposes INA § 212(a)(2)(A)(i).

• First, a foreign national must “admit” to all the elements of the criminal statute before he or she can be found inadmissible for that crime. Matter of K, 7 I&N Dec 594 (BIA 1957).

• Second, the BIA has held that an “admission” must be voluntarily given. Matter of G, 1 I&N Dec. 225, 227 (BIA 1942).

• Third, an “admission” must be unequivocal. Matter of L, 2 I&N Dec. 486 (BIA 1946).

• Fourth, an “admission” must be full and complete. Matter of E-N-, 7 I&N Dec. 153 (BIA 1956).

For example, if an individual is going to be found inadmissible for “admitting” to committing the crime of simple possession of a controlled substance, pursuant to 21 U.S.C. § 844(a), he or she has to admit to the following: (1) knowingly or intentionally; (2) possessing (by either actual or constructive possession); and (3) a controlled substance. If the individual does not admit to each and every one of the elements outlined in 21 U.S.C. § 844(a), the “admission” should not qualify as a valid “admission” for the purposes of INA § 212(a)(2)(A)(i). Additionally, if the individual stated that they unknowingly were in possession of a controlled substance, this should still not qualify as an “admission” given that it was not unequivocal.

To further curb abuses of INA § 212(a)(2)(A)(i) by immigration officers, other requirements were devised. For example, the Department of State’s Foreign Affairs Manual requires that consular officers “give the application a full explanation of the purpose the questioning” when eliciting admissions to a previous criminal offense. 9 FAM 40.21(a) N5.1. In addition, officers must also provide an explanation of the crime in terms that the individual (i.e. a layman) can understand.

Inadmissibility based on a mere admission seems contrary to the most basic principles of due process and justice; however, it is the law. Fortunately, there are safeguards in place to avoid the arbitrary application of INA § 212(a)(2)(A)(i).

For those foreign nationals who have been charged with inadmissibility to the U.S. because of an “admission” made to U.S. Customs & Border Protection (CBP) Officers, and who never appeared before a judge in a court of law, they are strongly encouraged to have an experienced immigration attorney review their situation to determine whether all the requirements of an “admission” were properly met.

When faced with his ground of admissibility, the foreign national will be required to obtain the proper waiver(s) in order to regain entry into the United States in the future.

Therefore, if you were found inadmissible under INA § 212(a)(2)(A)(i) and would like to receive a thorough professional analysis of your situation, including whether anything can be done to vacate your “admission” and/or discuss your eligibility for the waiver you would require to re-enter the U.S., please contact our office to schedule a consultation.


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