BIA Holds Guilty Plea Without Conviction Is Not An Admission – JD Supra Business Advisor

The Immigration and Nationality Act (INA) contains a provision making an individual inadmissible to the United States if he or she has admitted to the commission of certain crimes, including controlled substance offenses. Inadmissibility prevents an individual from being able to obtain certain immigration benefits, unless the individual can obtain a waiver. In order for an individual to trigger inadmissibility under the “admission” clause of the INA, the government must find that the essential elements of the crime were explained to the individual in layman’s terms, that the individual admitted to each element, and that the admission was voluntary and unequivocal. Further, several precedent decisions of the Board of Immigration Appeals (BIA) have held that if an admission was made as part of criminal proceedings that did not result in a conviction, the admission may not be used against the individual to trigger inadmissibility.   

On June 5, 2014, the Board of Immigration Appeals (BIA) issued an unpublished decision in the case of Ramon Garcia-Fonseca, A075 535 094 (BIA, June 5, 2014), applying the above rules and finding that the respondent was not inadmissible for having “admitted” violating a law related to a controlled substance based on a guilty plea to methamphetamine possession that resulted in his placement in a California drug diversion program. The Board noted that the respondent was notconvicted for immigration purposes, and that a guilty plea which results in something less than a “conviction” is not tantamount to an “admission” of the crime.

An unpublished decision is not binding on any Court or the U.S. Citizenship and Immigration Services (USCIS), although it may serve as persuasive authority when applying for certain benefits from USCIS or relief from removal in Immigration Court. It is uncertain how this unpublished decision will be treated by USCIS and the Immigration Court.