Canadian Citizen's First I-192 Waiver Approved

Application Type: I-192

Adjudication Time: Approx. 92 Days

Adjudicating Agency: Admissibility Review Office (Filed @ Peace Bridge Port of Entry in Buffalo, New York)

Grounds of Inadmissibility: INA 212(a)(2)(A)(i)(II) – Controlled Substance Violation from 2001 in Canada

Purpose of Entry into U.S.: Business & Pleasure Visits [B1/B2] – Visit with friends in the U.S., vacation to the U.S.

SRW Strategy: Evidence of Rehabilitation (no involvement with drugs or any criminal issues since 2002, productive member of community)

Approval Period: One (1) Year

Inadmissibility Based on Admissions of Criminal Conduct – INA§212(a)(2)(A)(i)

It is well settled and understood that a criminal conviction may form the basis of determining an individual inadmissible to the United States under the Immigration and Nationality Act (“Act”). In particular, INA § 212(a)(2)(A)(i) provides that arriving aliens are inadmissible to the U.S. if they have been convicted of: (I) a crime involving moral turpitude, or an attempt or conspiracy to commit such a crime or (II) a violation of a controlled substance offense of any State, the United States, or a foreign country.

It is surprising, however, that under INA § 212(a)(2)(A)(i), an individual can also be rendered inadmissible for merely admitting to criminal activity even though they may never have been convicted in a court of law for those offenses. Specifically, 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 USC 802)), is inadmissible.

On its face, the statute indicates that a factual admission of criminal activity by an individual is sufficient to support a criminal charge of inadmissibility. However, ascertaining whether or not an individual has “admitted to committing acts that constitute the essential elements” of such crimes (moral turpitude or a controlled substance offense) is far more complicated.

Fortunately, the Board of Immigration Appeals (“BIA”) has issued case law dictating certain requirements that an “admission” must meet to effectively support a charge of inadmissibility under INA § 212(a)(2)(A)(i). The BIA explained that these rules were not based on any specific statutory requirement but have evolved in an effort to insure a fair hearing and to preclude a later claim of unwitting entrapment. Matter of K, 7 I&N Dec 594, 597 (BIA 1957), citing Matter of J-, 2 I&N Dec 285 (BIA 1945), modified by, Matter of E-V-, 5 I&N Dec 194 (BIA 1953). While a majority of these rules have been defined involving crimes involving moral turpitude, they also apply equally to cases involving controlled substance offenses. Pazcoguin v. Radcliff, 292 F.3d 1209 (9th Cir 2002).

In 1957, the BIA issued a landmark precedent decision in which it set forth the following three-part test for determining the legal sufficiency of an “admission” under INA:

1. The admitted conduct must constitute the essential elements of the crime in the jurisdiction where it occurred;

2. The applicant must have been provided with a definition and the essential elements of the offense prior to his admission; and

3. The admission must be voluntary.

Matter of K, 7 I&N Dec. 594. Unless each of these three (3) elements are met, any “admission” made to a U.S. immigration officer cannot form the basis of a charge of inadmissibility. Additionally, the BIA held that in order for an admission to be valid for INA § 212(a)(2)(A)(i) purposes, it must be unequivocal and complete. Matter of L, 2 I&N Dec. 486 (BIA 1946); Matter of E-N-, 7 I&N Dec. 153 (BIA 1956).

In response to the BIA’s precedent decisions, requirements have been developed for immigration officers to adhere to while obtaining admissions. For example, the Department of State in the FAM issued procedural requirements consular officers must follow when eliciting admissions to a previous criminal offense that mirror the requirements established by these decisions. Specifically, 9 FAM 40.21(a) N5.1 requires officers to:

1. Give the applicant a full explanation of the purpose of questioning;

2. The crime the applicant has admitted to must appear to constitute moral turpitude based on the statute and the applicant’s statements;

3. Before commencing questioning, the applicant must be provided an adequate definition of the crime, including all essential elements in terms that the individual understands, making certain the definition conforms to the law of the jurisdiction where the offense is alleged to have been committed;

4. The applicant must admit to all factual elements constituting the crime; and

5. The applicant’s admission must be explicit, unequivocal and unqualified.

Individuals deemed inadmissible under INA § 212(a)(2)(A)(i) based on an “admission” will forever require a nonimmigrant waiver to enter the U.S. This is a serious consequence and as such, we encourage foreign nationals who have been charged with inadmissibility based on an “admission” to a U.S. immigration officer, who never appeared before a judge or was convicted in a court of law, to consider having their situation reviewed to determine whether all the requirements of an “admission” were properly met. If you were found inadmissible under INA § 212(a)(2)(A)(i), contact our office to have us evaluate whether anything can be done to vacate your “admission” and/or discuss your eligibility for the waiver you would require to enter the U.S.

Erroneous Finding Of Inadmissibility Under INA §212(a)(2)(A)(i)(II) Vacated By CBP – Paying Fine At Customs NOT An Admission To A Controlled Substance Violation

Recently, we assisted our Client, a Canadian citizen, in vacating an erroneous determination regarding his inadmissibility under INA §212(a)(2)(A)(i)(II) [Controlled Substance Violation] and subsequently obtaining admission in B-2 status, without requiring a non-immigrant waiver under INA §212(d)(3) [Form I-192].

In November 2013, our Client attempted to enter the U.S. through the Peace Bridge Port of Entry (POE) in Buffalo, NY to attend a Buffalo Bills game. During his encounter with U.S. Customs & Border Protection (CBP), our Client was alleged to have drugs (less than a gram of marijuana) in his vehicle. As a result, CBP Officers imposed a $500 monetary Customs fine. Upon payment and processing, our Client was escorted back to Canada. CBP exercised discretion and chose not to seek to have our Client criminally prosecuted for a possession offense.

The following Saturday, our Client attempted to enter the U.S. at the Chicago Midway Airport but was denied entry by CBP, advised that he was inadmissible under INA §212(a)(2)(A)(i)(II) as a result of the incident the week before and that he would forever require a non-immigrant waiver in the future to re-enter the U.S. Shortly thereafter, our Client scheduled a consultation with our office to prepare his non-immigrant waiver application.

After an extended consultation with the Client and a thorough review of the facts and his documents, we concluded that CBP Chicago officials had made an incorrect determination regarding his admissibility under INA §212(a)(2)(A)(i)(II). Specifically, CBP at Chicago Midway erroneously concluded that our Client’s payment of a monetary fine was the equivalent of him making an admission to the essential elements of a controlled substance violation. However, our Client did not make any admission that would be legally sufficient to find him inadmissible under INA §212(a)(2)(A)(i)(II) and the mere payment of the monetary fine was not the legal equivalent of an admission.

In fact, the payment of such monetary fines was addressed in a 1995 legal opinion, provided by the General Counsel of the legacy Immigration and Naturalization Service (INS), which clearly and unequivocally stated that, “[a]n alien who agrees to pay the penalty does not by doing so admit having committed acts which constitute the essential elements of a controlled substance violation” under INA § 212(a)(2)(A)(i)(II).

As such, we recommended filing a detailed submission with CBP to request that CBP correct our Client’s records and vacate the finding of inadmissibility under INA § 212(a)(2)(A)(i)(II) since such finding had been made erroneously and was not supported by applicable law or guidance.

With our Client’s consent, we submitted a detailed legal brief, together with supporting documentation, to CBP requesting they vacate the erroneous finding of inadmissibility. After reviewing our submission, CBP Officers concurred with our legal analysis. We later accompanied our Client to the Port of Entry and after inspection and admission, our Client was admitted to the U.S. as a visitor (B-2) - without the need for a non-immigrant waiver.

This resolution was vital for our Client since it cleared up many prospective immigration barriers to the U.S. for him. Had the inadmissibility finding remained, our Client would have required a non-immigrant waiver for the rest of his life – and would therefore need to continuously file non-immigrant waivers, pay applicable fees, and be subject to secondary screening. With the finding of inadmissibility vacated, our Client can continue his unfettered ability to enter the U.S. as a business visitor (B-1) or visitor for pleasure (B-2), or in the future, choose to immigrate to the U.S. if he would like.

A previous drug conviction is preventing me from entering the United States. I need to take College final exams or I risk losing an entire semester of credit.

Question:

Dear SRW Border lawyers,

I entered the United States in F-1 status to attend college in California. During my first semester I was arrested and charged with possession of a controlled substance. The controlled substance was not mine, but since it was found in my car I was charged with possessing it.  During the criminal proceeding, I was represented by a public defender who was unaware of immigration law and how a criminal conviction would affect my immigration status. In fact, I was told on several occasions that if I were to pled guilty to a misdemeanor the conviction would not affect my immigration status. Taking the advice of my lawyer, I pled guilty to a misdemeanor. I was under the impression that entering a plea and paying a small fine would put an end to my situation.

Several months later, I returned home (Sweden) during Christmas break. When I tried to return to the United States to continue my classes, Customs and Border Protection (“CBP”) denied me entry due to my conviction. After I explained the situation surrounding my conviction CBP paroled me into the country for one (1) year. I finished up my spring semester and then returned home to Sweden again for summer vacation. Unfortunately, I did not realize that my parole was only a one-time entry. So, when I tried to enter the United States again to begin the new school year, I was denied because of my conviction.

My school has been very understanding with my situation, but I was recently informed by school administrators that I must take my final exams in-person, or I will have to withdraw from all of my classes and lose an entire semester worth of class credit.  How can I enter the United States? I do not want to lose an entire semester of classes.

Answer:

Thank you for contacting the SRW Border Team. As you already know, you are inadmissible due to your criminal conviction. Pursuant to INA § 212(a)(2)(A)(II), “any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of 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 is inadmissible.

That being said, and with only a limited understanding of the facts of your case, you may have some options available to return to the United States to finish your schooling.

Parole

Despite you inadmissibility, you may be able to parole into the country for a period of time long enough to take your exams. Parole is a legal fiction that CBP uses to allow individuals to enter the United States for a specific purpose and period of time without actually “admitting” them. Parole is generally used in situations where there is a strong humanitarian or business need, however, an experienced immigration lawyer may be able to develop and present a persuasive case to CBP to allow for the discretionary authorization of parole. You should also be aware that your parole will more than likely be a one-time entry only, which means that once you enter the country, you will not be able to return if you depart prior to the expiration of your parole.

Vacate Criminal Conviction

While we only have the information you provided in your email, you may be able to vacate your criminal conviction. Based on your email, it appears that throughout the criminal proceeding you were not properly apprised of the immigration consequences of your plea agreement. Vacating the conviction would essentially clear your record and remove your inadmissibility. While our office does not handle criminal matters, we have a network of experienced criminal lawyers that we will put you in contact with and then work closely with that lawyer to resolve your immigration matter.

If you are not able to vacate the criminal conviction, you will likely need to apply for a non-immigrant waiver through the U.S. Consulate in Sweden, in conjunction with your application for a new F-1 visa.  For more information about this non-immigrant waiver process through the Consulate, please click here. 

We hope the above information was helpful. We look forward to speaking with you through our detailed consultation process and helping you through this stressful time.