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  • Writer's pictureGeoff Harrison

Can you travel to the U.S.A with a Conviction?


Travel and Conviction

Published by Geoff Harrison | 8 July 2023


The U.S Immigration and Nationality Act (INA) regulates immigration in the U.S.


Under INA, Title 8 of the U.S Code section 1182(2)(A) deals with inadmissible aliens ie. persons with criminal convictions for certain offences. An person is an inadmissible alien to the U.S, if a person has a conviction for a crime involving moral turpitude (defined below) or a Controlled Substances.


If planning on entering the US with a conviction for any offence of moral turpitude or a controlled substance it is highly recommended that you contact the US Embassy re visas and any exceptions.


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§1182. Inadmissible aliens

(a) Classes of aliens ineligible for visas or admission

Except as otherwise provided in this chapter, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States:

(1) Health-related grounds

(A) In general

Any alien-


(i) who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services) to have a communicable disease of public health significance;


(ii) except as provided in subparagraph (C), who seeks admission as an immigrant, or who seeks adjustment of status to the status of an alien lawfully admitted for permanent residence, and who has failed to present documentation of having received vaccination against vaccine-preventable diseases, which shall include at least the following diseases: mumps, measles, rubella, polio, tetanus and diphtheria toxoids, pertussis, influenza type B and hepatitis B, and any other vaccinations against vaccine-preventable diseases recommended by the Advisory Committee for Immunization Practices,


(iii) who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services in consultation with the Attorney General)-

(I) to have a physical or mental disorder and behavior associated with the disorder that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others, or

(II) to have had a physical or mental disorder and a history of behavior associated with the disorder, which behavior has posed a threat to the property, safety, or welfare of the alien or others and which behavior is likely to recur or to lead to other harmful behavior, or


(iv) who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services) to be a drug abuser or addict,


is inadmissible.


(B) Waiver authorized

For provision authorizing waiver of certain clauses of subparagraph (A), see subsection (g).


(C) Exception from immunization requirement for adopted children 10 years of age or younger

Clause (ii) of subparagraph (A) shall not apply to a child who-

(i) is 10 years of age or younger,

(ii) is described in subparagraph (F) or (G) of section 1101(b)(1) of this title; and

(iii) is seeking an immigrant visa as an immediate relative under section 1151(b) of this title,

if, prior to the admission of the child, an adoptive parent or prospective adoptive parent of the child, who has sponsored the child for admission as an immediate relative, has executed an affidavit stating that the parent is aware of the provisions of subparagraph (A)(ii) and will ensure that, within 30 days of the child's admission, or at the earliest time that is medically appropriate, the child will receive the vaccinations identified in such subparagraph.


(2) Criminal and related grounds

(A) Conviction of certain crimes

(i) In general

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 802 of title 21),


is inadmissible.


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§802. Definitions

As used in this subchapter:

(1) The term "addict" means any individual who habitually uses any narcotic drug so as to endanger the public morals, health, safety, or welfare, or who is so far addicted to the use of narcotic drugs as to have lost the power of self-control with reference to his addiction.


(2) The term "administer" refers to the direct application of a controlled substance to the body of a patient or research subject by-


(A) a practitioner (or, in his presence, by his authorized agent), or

(B) the patient or research subject at the direction and in the presence of the practitioner,


whether such application be by injection, inhalation, ingestion, or any other means.



(3) The term "agent" means an authorized person who acts on behalf of or at the direction of a manufacturer, distributor, or dispenser; except that such term does not include a common or contract carrier, public warehouseman, or employee of the carrier or warehouseman, when acting in the usual and lawful course of the carrier's or warehouseman's business.


(4) The term "Drug Enforcement Administration" means the Drug Enforcement Administration in the Department of Justice.


(5) The term "control" means to add a drug or other substance, or immediate precursor, to a schedule under part B of this subchapter, whether by transfer from another schedule or otherwise.


(6) The term "controlled substance" means a drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V of part B of this subchapter. The term does not include distilled spirits, wine, malt beverages, or tobacco, as those terms are defined or used in subtitle E of the Internal Revenue Code of 1986.

.......


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9 FAM 302.3-2(B)(2) (U) Defining Moral Turpitude

(CT:VISA-1350; 08-27-2021)


a. (U) Evaluating Moral Turpitude Based Upon Statutory Definition of Offense and U.S. Standards: To render an applicant ineligible under INA 212(a)(2)(A)(i)(I), the conviction or admission must be for a statutory offense which involves moral turpitude. The presence of moral turpitude is determined by the nature of the statutory offense for which the applicant was convicted, particularly in the wording of the specific law that the applicant was convicted under, and not by the acts underlying the conviction. Therefore, evidence relating to the underlying act, including the testimony of the applicant, is not relevant to a determination of whether the conviction involved moral turpitude except when the statute is divisible (see 9 FAM 302.3-2(B)(5) below) or a political offense (see 9 FAM 302.3-2(B)(9) below). The presence of moral turpitude in a statutory offense, whether a U.S. state law, U.S. Federal law, or a foreign law, is determined according to U.S. Federal law.


b. (U) Defining Moral Turpitude: Statutory definitions of crimes in the United States consist of various components, which must be met before a conviction can be supported. Some of these components have been determined in previous judicial or administrative decisions to involve moral turpitude. A conviction for a statutory offense will involve moral turpitude if one or more of the parts of that offense have been determined to involve moral turpitude. The most common offenses involving moral turpitude include:


(1) (U) Fraud;


(2) (U) Larceny; or


(3) (U) Intent to harm persons or things.


c. (U) Common Crimes Involving Moral Turpitude: Categorized below are some of the more common crimes involving moral turpitude. Each category is followed by a separate list of related crimes, which are often held not to involve moral turpitude. These lists are not meant to be exhaustive and will not encompass every CIMT. If you have a question as to whether a section of law, foreign or domestic, is a CIMT, please submit an AO request to your usual L/CA liaison.


(1) (U) Crimes Committed Against Property:


(a) (U) Most crimes committed against property that involve moral turpitude include the element of fraud. The act of fraud involves moral turpitude whether it is aimed against either individuals or the government. Fraud generally involves:


(i) (U) Making false representation;


(ii) (U) Knowledge of such false representation by the perpetrator;


(iii) (U) Reliance on the false representation by the person defrauded;


(iv) (U) An intent to defraud; and


(v) (U) The actual act of committing fraud


(b) (U) Other crimes committed against property involving moral turpitude involve an inherently evil intent. The following list comprises crimes frequently committed against property, which may generally be held to involve moral turpitude:


(i) (U) Arson;


(ii) (U) Blackmail;


(iii) (U) Burglary;


(iv) (U) Embezzlement;


(v) (U) Extortion;


(vi) (U) False pretenses;


(vii) (U) Forgery;


(viii) (U) Fraud;


(ix) (U) Larceny (grand or petty);


(x) (U) Malicious destruction of property;


(xi) (U) Receiving stolen goods (with guilty knowledge);


(xii) (U) Robbery;


(xiii) (U) Theft (when it involves the intention of permanent taking);


(xiv) (U) Transporting stolen property (with guilty knowledge);


(xv) (U) Animal Fighting; and


(xvi) (U) Credit card/Identity fraud;


(c) (U) Crimes against property which generally do not fall within the definition of crimes involving moral turpitude include:


(i) (U) Damaging private property (where intent to damage is not required);


(ii) (U) Breaking and entering (if the statute does not require a specific or implicit intent to commit a crime involving moral turpitude);


(iii) (U) Passing bad checks (where intent to defraud is not required by the statute);


(iv) (U) Possessing stolen property (if guilty knowledge is not essential for a conviction under the statute);


(v) (U) Joy riding (where the intention to take the vehicle permanently is not required under the statute); and


(vi) (U) Juvenile delinquency.


(2) (U) Crimes Committed Against Governmental Authority:


(a) (U) Moral Turpitude Crimes: Common crimes committed against governmental authority which generally fall within the definition of crimes involving moral turpitude include but are not limited to:


(i) (U) Bribery;


(ii) (U) Counterfeiting;


(iii) (U) Fraud against revenue or other government functions;


(iv) (U) Mail fraud;


(v) (U) Perjury;


(vi) (U) Harboring a fugitive from justice (with guilty knowledge); and


(vii) (U) Tax evasion (willful).


(b) (U) Crimes Without Moral Turpitude: Crimes committed against governmental authority, which would not constitute crimes involving moral turpitude, are, in general, violation of laws which are both regulatory in character and which do not involve the element of fraud or other evil intent. The following list assumes that the statutes involved do not require the showing of an intent to defraud, or evil intent:


(i) (U) Black market violations;


(ii) (U) Breach of the peace;


(iii) (U) Carrying a concealed weapon;


(iv) (U) Desertion from the Armed Forces;


(v) (U) Disorderly conduct;


(vi) (U) Drunk or reckless driving (however, aggravated drunk driving may be a CIMT); (see 9 FAM 302.2-7(B)(3) below for guidance on alcohol-related arrests)


(vii) (U) Drunkenness;


(viii) (U) Escape from prison;


(ix) (U) Failure to report for military induction;


(x) (U) False statements (not amounting to perjury or involving fraud);


(xi) (U) Firearms violations;


(xii) (U) Gambling violations;


(xiii) (U) Liquor violations;


(xiv) (U) Loan sharking;


(xv) (U) Lottery violations;


(xvi) (U) Possessing burglary tools (without intent to commit burglary);


(xvii) (U) Smuggling and customs violations (where intent to commit fraud is absent);


(xviii) (U) Tax evasion (without intent to defraud); and


(xix) (U) Vagrancy.


(3) (U) Crimes Committed Against Person, Family Relationship, And Sexual Morality:


(a) (U) Moral Turpitude: Crimes committed against the person, family relationship, and sexual morality, which are normally considered crimes involving moral turpitude include:


(i) (U) Abandonment of a minor child (if willful and resulting in the destitution of the child);


(ii) (U) Assault (this crime is broken down into several categories, which involve moral turpitude):


· (U) Assault with intent to kill;


· (U) Assault with intent to commit rape;


· (U) Assault with intent to commit robbery;


· (U) Assault with intent to commit serious bodily harm; and


· (U) Assault with a dangerous or deadly weapon (some weapons may be found to be lethal as a matter of law, while others may or may not be found factually to be such, depending upon all the circumstances in the case. Such circumstances may include, but are not limited to, the size of the weapon, the manner of its use, and the nature and extent of injuries inflicted.);


(iii) (U) Bigamy;


(iv) (U) Contributing to the delinquency of a minor;


(v) (U) Gross indecency;


(vi) (U) Incest (if the result of an improper sexual relationship);


(vii) (U) Kidnapping;


(viii) (U) Lewdness;


(ix) (U) Voluntary Manslaughter:


(x) (U) Involuntary Manslaughter, where the statute requires proof of recklessness generally will involve moral turpitude. A conviction for the statutory offense of vehicular homicide or other involuntary manslaughter that only requires a showing of negligence will not involve moral turpitude even if it appears the defendant in fact acted recklessly.


(xi) (U) Mayhem;


(xii) (U) Murder;


(xiii) (U) Pandering;


(xiv) (U) Possession of child pornography;


(xv) (U) Prostitution; and


(xvi) (U) Rape, including statutory rape.


(b) (U) No Moral Turpitude: Crimes committed against the person, family relationship, or sexual morality which are not normally found to be crimes involving moral turpitude include:


(i) (U) Simple Assault (i.e., any assault, which does not require an evil intent or depraved motive, although it may involve the use of a weapon, which is neither dangerous nor deadly);


(ii) (U) Creating or maintaining a nuisance (where knowledge that premises were used for prostitution is not necessary);


(iii) (U) Incest (when a result of a marital status prohibited by law);


(iv) (U) Involuntary manslaughter (when only negligence is required for conviction);


(v) (U) Libel;


(vi) (U) Mailing an obscene letter;


(vii) (U) Mann Act violations (where coercion is not present);


(viii) (U) Riot; and


(ix) (U) Suicide (attempted).


(c) As addressed in 9 FAM 302.3-2(B)(1) above, even if an applicant was convicted of or admitted to a CIMT, even a very serious crime, an INA 212(a)(2)(A)(i)(I) ineligibility may not always result, depending on a variety of factors including whether one of the "exceptions" apply. However, in cases where INA 212(a)(2)(A)(i)(I) does not apply, this does not automatically shield the arrest or conviction from other potential ineligibilities, such as INA 212(a)(1)(A) or even INA 212(a)(A)(i)(II).


(4) (U) Intentional Distribution of Controlled Substances: The Board of Immigration Appeals has determined that in general, a conviction for the intentional distribution of a controlled substance or a conviction for drug trafficking is a crime involving moral turpitude. The mere possession or use of a controlled substance is not generally sufficient for INA 212(a)(2)(A)(i)(I) ("2A1") however it may result in an INA 212(a)(2)(A)(i)(II) ("2A2") ineligibility and/or an INA 212(a)(2)(C)(i) ineligibility. A typical drug statute that would constitute a crime involving moral turpitude is “possession with intent to distribute.” A conviction or legally valid admission is required for INA 212(a)(2)(A)(i)(I) ineligibility. Applicants may be found ineligible under both INA 212(a)(2)(A)(i)(I) and INA 212(a)(2)(A)(i)(II) and perhaps even under INA 212(a)(2)(C)(1) (which requires only that the “reason to believe” standard be met and does not require a conviction or even an arrest.) You should consider whether the applicant should be referred to the panel physician for an assessment of a possible ineligibility under INA sections 212(a)(1)(A)(iii) ("1A3") for a physical or mental disorder with behavior that may pose or has posed a threat to others' safety or property including substance-related disorders or 212(a)(1)(A)(iv) ("1A4") for drug abuse or addiction.


d. (U) Attempts, Aiding and Abetting, Accessories, and Conspiracy:


(1) (U) The following types of crimes are also crimes involving moral turpitude:


(a) (U) An attempt to commit a crime involving moral turpitude;


(b) (U) Aiding and abetting in the commission of a crime involving moral turpitude;


(c) (U) Being an accessory (before or after the fact) in the commission of a crime involving moral turpitude; or


(d) (U) Taking part in a conspiracy (or attempting to take part in a conspiracy) to commit a crime involving moral turpitude.


(2) (U) Conversely, where an applicant has been convicted of, or admits having committed the essential elements of, a criminal attempt, or a criminal act of aiding and abetting, accessory before or after the fact, or conspiracy, and the underlying crime is not deemed to involve moral turpitude, then INA 212(a)(2)(A)(i)(I) would not be applicable.


9 FAM 302.3-2(B)(3) (U) Cases in which Conviction Exists

(CT:VISA-1629; 09-15-2022)


a. (U) Defining Conviction: INA 101(a)(48) defines “conviction” as either:


(1) (U) A formal judgment of guilt entered by a court; or


(2) (U) If adjudication has been withheld, a finding of guilty by a judge or jury, a plea of guilty or nolo contendere by the applicant, or an admission from the applicant of sufficient facts to warrant a finding of guilt; and


(3) (U) The imposition of some form of punishment, penalty, or restraint of liberty by a judge. If you have questions as to what constitutes some form of penalty or restraint of liberty in a certain case, you may contact your usual L/CA liaison for clarification.


b. (U) Whether a Conviction Exists Is a Factual Finding for the Consular Officer: Whether a conviction exists is a factual matter for you to decide, independent of any official record that appears in a database. An indication that an applicant has been convicted of a crime may appear in:


(1) (U) replies to questions, including as part of a visa application;


(2) (U) reports of investigations and other government activities;


(3) (U) police records or other documents that the applicant may be required to submit; or


(4) (U) any other information which may be developed concerning the applicant.


c. (U) Evidence of Conviction: Official police and/or court records generally establish the existence of a conviction. However, some convictions that would trigger a finding of INA 212(a)(2)(A)(i)(I) and (II) are no longer a matter of record due to the passage of time, generous expungement provisions under local law, or other reasons. In cases where an expungement or pardon may have removed the record of conviction from official records, or where the accuracy of records is otherwise suspect, you may require any evidence relevant to the applicant’s history which may be necessary to determine the facts and assess the applicant’s eligibility under of INA 212(a)(2)(A)(i)(I) and (II) as well as other ineligibilities, including those not requiring a conviction. You may require that the applicant provide any or all the following documents: a copy of the statute of conviction, a copy of the relevant sentencing guidelines, court records, police records, a translation into English if these documents are in a language other than English, and any other records you determine are relevant. If you have questions about whether a conviction exists for purposes of INA 212(a)(2)(A)(i)(I) or (II), you may send an AO request to L/CA. You must first gather documentation necessary to assess eligibility, specifically the text of the law that the applicant was convicted under and the accompanying sentencing guidelines (with English translation if they are in a language other than English) before submitting the AO request.


d. (U) Expunging Conviction Under U.S. Law:


(1) (U) Prior to the passage of INA 101(a)(48) a full expungement of a conviction under U.S. law had been held to be equivalent in effect to a pardon granted under INA 237(a)(2)(A)(v) and served to eliminate the effect of the conviction for most immigration purposes. After the passage of INA 101(a)(48), the Board of Immigration Appeals in Matter of Roldan, 22 I & N. Dec. 512, determined that, effective April 1,1997 judicial expungements based on rehabilitative or ameliorative statutes (laws that allowed for expungement of a sentence by a court based on a showing that the defendant had been rehabilitated or was otherwise worthy of relief) would no longer be recognized as effective for eliminating the conviction for immigration purposes.


(2) (U) The Ninth Circuit Court of Appeals, however, disagreed with this holding, and in a series of cases determined that state judicial expungements will be considered effective for eliminating the conviction for immigration purposes if the applicant would have been eligible for relief under the Federal First Offender Act or similar statute (see 9 FAM 302.4-2(B)(3)). The Ninth Circuit later overturned these decisions in the case Nunez-Reyes v. Holder, 646 F.3d 684 (July 14, 2011), and now follows the holding in Matter of Roldan. However, this decision did not have retroactive effect, so some state judicial expungements in cases where the conviction occurred prior to July 14, 2011, may still be effective for immigration purposes in the Ninth Circuit only. Because of the complexity of this issue, and because in most cases the holding in Roldan will stand, if a visa applicant makes an affirmative claim for state judicial expungement relief, this must be submitted as an AO to L/CA.


e. (U) Expunging Conviction Under U.S. Federal Law: The Comprehensive Crime Control Act of 1984, effective October 12, 1984, repealed the Federal First Offender provisions cited as 21 U.S.C. 844(b)(1) and the Federal Youth Corrections Act provisions cited as 18 U.S.C. 5021. Both procedures expunged convictions for all purposes. You should honor certificates verifying expungement under either of these sections. 18 U.S.C. 3607 has replaced these procedures. An expungement under this section likewise negates a conviction for purposes of INA 212(a)(2)(A)(i)(I).

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