In order for our government to remove a foreign national on the basis of criminal conduct, a conviction is normally required. In terms of what constitutes a conviction, the Immigration and Nationality Act (INA) states as follows:
(A) The term 'conviction' means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where-
(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and
(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed.
INA §101(a)(48). See also Matter of Ozkok, 19 I&N Dec. 546 (BIA 1988).
That being said, many people are surprised to learn that a conviction is not required for all grounds of removable conduct. There are, in fact, several grounds that do not depend on the government establishing that an individual has been convicted of a certain crime or offense. Most of them (but not all) relate to admissibility, that is, a person's ability to lawfully enter the United States. Some of the more common grounds where a conviction is not dispositive include the following:
· Prostitution. People coming to the US to engage in or have engaged in prostitution in the last ten years are inadmissible under INA 212(a)(2)(D)(i).
· Alien Smuggling. Under INA 212(a)(6)(E)(i), any alien who at any time knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law is inadmissible.
· Drug Traffickers. Under 212(a)(2)(C)(i), any alien who the consular officer or Attorney General knows or has reason to believe is or has been an illicit trafficker in any controlled substance or in any listed chemical (as defined in section 102 of the Controlled Substance Act (21 USC 802)), or is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking in any such controlled or listed substance or chemical, or endeavored to so...is inadmissible.
· Drug Addicts. Under INA 237(a)(2)(B)(ii), an alien who is, or at any time after admission has been, a drug abuser or addict is deportable
· Violation of Restraining and Protective Orders. Under INA 237(a)(2)(E)(ii), any alien who at any time after admission is enjoined under a protection order issued by a court and whom the court determines has engaged in conduct that violates the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued is deportable.
In all of the above categories, a conviction is not legally required for the government to determine that a person is deportable or inadmissible to the US. Being determined to be deportable or inadmissible on drug grounds can be especially dangerous, as there are no waivers available. Furthermore, because a conviction is not required, just what type of evidence may be examined and what weight is accorded to them is not clear. For example, police reports as well as statements from other parties may be used to buttress a finding that an individual is or was a trafficker or drug addict, even though the statements may be biased or obtained illegally. In light of ramped up enforcement efforts, any foreign national whose behavior is even potentially implicated by the above categories should consult with an attorney to assess the impact. These issues can arise i n any number of situations including travel, applying for a green card or visa, and naturalization. For more information, please contact our office.
The above is general information only and not to be relied upon as legal advice. It does not create an attorney client relationship nor should it be relied upon as advice in lieu of consultation with an attorney.