Criminal Inadmissibility in the United States: An Analysis of the Comparative Approach

by Mahmudul Hasan

In recent years, the demand to "regain control" of immigration has exploded in popularity, fueling populist leader Donald Trump's electoral triumph. Stopping immigration has been a cornerstone of Donald Trump's election platform since his victory in 2016. On the surface and in practice, and regaining control does not imply a reduction in immigration. Rather, control and entails excluding undesirable, and undeserving candidates by nearly any means available, recruiting economic migrants, selling citizenship to anybody regardless of their ties to the destination state, and enforcing assimilation by visible minority cultures as quickly as possible. And the phrase "out of control" is frequently a deceptive rhetorical device. When presenting immigration as out of control by the state or not, the framing of who makes the decision, or whether a decision has been made at all, is critical. The main challenge for state officials in this "new, mean-spirited global politics of immigration" is a methodological one: Who is the ideal-immigrant? How can states distinguish between the undesirable, "undeserving" applicants and "the best" or "the deserving" ones?

Immigrants bring substantial personal histories of education, employment, and inheritance, as well as vocations and convictions, personal relationships, and, on rare occasions, criminality, to their new homes. Immigration law is all about evaluating people's backgrounds to see if they are a good "match" for the laws of the target state. As a result, "control" comes down to using a comparative methodology to separate the "undeserving" applicants from the "best" or "deserving" ones. Immigration law is, and has always been, comparative in a deep and long-standing sense. Generally, comparing the perceived histories of would-be immigrants from origin state to the destination state, immigration judges and officers determine undesirable, "undeserving" applicants and "the best" or "the deserving" ones. As a result, it should come as no surprise that immigration law inherits many of the same challenges and answers that private international law, or possibly "applied comparative law" more broadly, has encountered and examined.

Immigration law, like conflicts of law and private international law, is a major domain of comparative legal practice. In the comparative elements of immigration law, the same rules, concepts, and challenges occur as in private international law. Immigration officers and judges, however, frequently employ methods that comparative law scholars find difficult to believe in, such as simple translation from one language/legal system to another or simple comparisons of legal systems with no social background; and options that comparative law scholars have argued are impossible, such as systemic or structural comparisons of entire social and legal systems. Nonetheless, these possibilities remain part of the matrix of options and are or have been delivered by immigration authorities with a straight face at some point. As a result, immigration procedures make great laboratories for examining strategic and duplicitous uses of comparative analysis. This simple translation approach from one language/legal system to another is absorbing a significant portion of current immigration practice; it may be impossible for the existing immigration politics to imagine otherwise. 

In the comparative perspective of immigration practice, a tension exists between a macro and micro approach, a formal and functional methodology, a presumption of similarity and difference, a concentration on rules against seeing beyond rules, and a positivist versus a cultural approach, to name a few examples. Not only is there discussion over the best and most appropriate methodology, but there is also the question of whether comparison is even conceivable. Which of these several approaches should an immigration officer, judge, or policymaker take?

Immigration officials are only interested in specific questions regarding the immigrant's past, not a broad comparison of two legal systems, hence one would expect them to focus on micro-level comparisons. Immigration officials worry about current restrictions, not historical links, therefore one would anticipate comparisons to be analogical, that is, non-genealogical or non-historical. A positivist, rules-based approach would also be reasonable, as it would keep the immigration officer out of interminable, difficult-to-justify disputes about cultural comparability, transcultural sensibility, equivalence, and so on. As we'll see, these sensible expectations are partially realized but largely shattered. The main goal of comparative analysis is frequently characterized as an apolitical quest for accuracy and precision. Immigration officers, on the other hand, are always caught up in politics, no matter how well-intentioned they are. Choosing not to compare foreign and domestic legislation under the current immigration practice system, immigration officials have the possible option of ignoring an immigrant's criminality.

Although the philosophies differ, the regulatory environment is essentially binary: decisions are made between allowing more people in vs. allowing fewer people in, or rejecting vs. accepting this specific person. Methods of comparison cannot be unbiased or neutral in such binary situations: they will be chosen primarily on the conclusions they deliver, not on any inherent scientific worth.

The usefulness of a criminal history is determined by how trustworthy foreign criminal legal systems are regarded. Even within the more confined area of administrative comparisons made by state officials and judges, the breadth and methodology of the comparisons are influenced by perceived political objectives. Whereas the majority of comparativists argue that functionalist comparison is the sole meaningful method of comparative law. Choosing a comparing approach that is purposefully rudimentary or even nonsensical can be beneficial in terms of reliably returning primitive or nonsensical responses, which can subsequently be used to limit or prohibit particular forms of immigration.

In immigration law, for example, a brief comparison known as basic translation is a long-standing comparative procedure. A conviction is a conviction, regardless of the circumstances. A criminal conviction, regardless of where it occurs, is arguably a negative thing, and any state could be justified in rejecting someone with a record, regardless of the details. However, mere translation is unlikely to capture the immigrant's particular past. It's easy to go too far if you include convictions from authoritarian nations for exercising or promoting human rights, or if you include a moral turpitude charge. It can also be underinclusive, excluding those who did activities that would be illegal in the destination state but not in their home state.

In comparative law, an in-depth comparison method is structural comparison, which examines the resemblance of the elements that define the term in each of the national legal systems. Each element of a crime is analyzed when comparing it to other crimes. A fundamental structuralist move is to separate meaning from the words that express it, and to arrange both words and meanings on analogous grids. The topic of depth or systematicity remains unanswered by structural comparison. Is a structural comparison of the definitional aspects provided in the two criminal codes sufficient if a would-be immigrant is convicted of manslaughter in Uruguay, for example? Should a judge or immigration officer rely on case law as well as legislative definitions? Is the judge required to act as a limited-purpose foreign criminal appeals court, determining whether the immigrant would have been convicted in the destination state under the same circumstances?

The broad responses to the above questions lead to a systemic comparison, in which the entire legal system is compared, including facts, procedures, and court practice, as well as crime aspects. Despite the fact that such deep comparisons are arguably difficult to draw with any degree of accuracy, this depth is consulted. The rationale would be that, even if the elements of the notion in question are entirely same, a legal system with procedures that are drastically different from the destination state's laws cannot legitimately be compared. Deep comparison almost always generates a result of dissimilarity, and it's probable that this is done only to cast doubt on the entire comparing process. Such systemic comparisons have previously been used to dismiss not only foreign criminal punishments in their entirety, but also foreign administrative systems from specific parts of the world that were sources of disfavored immigrants. Due to the unreliability and authoritarian inclinations of European criminal laws, this appeared to be the policy goal in the early years of the United States, when foreign convictions were mainly ignored and rejected. A century later, more self-aware but less exacting comparisons served new exclusionary purposes better.

In comparative law, structural and systemic comparisons are based on the assumption that the socioeconomic backgrounds of the origin and destination states are either sufficiently similar or largely irrelevant to the technical intricacies of criminal law legislation. The most in-depth technique is to reject this presupposition and participate in deep functionalism, which means that comparatists should examine beyond legal norms or law in books, as well as the results of their application, to non-legal responses to society requirements. In the context of immigration law, this the application of structural and systemic comparisons means examining an applicant's past to determine whether or not they are compatible with the social order of the destination state – making immigration decisions based on non-criminal elements that may be disruptive, or family formations that are uncodified or unsanctioned by either legal system but may be socially relevant.

Different comparison approaches produce varying degrees of openness and restriction in various application domains. The approaches available differ in terms of feasibility, comprehensibility, and validity. Simple translations are subject to debate depending on fairness and caution. Systemic and functional comparisons are difficult to conduct — a complete systemic comparison would take at least a book – and they raise recurrent concerns about impartiality and the accuracy of the standards used.

Primarily, the criminal inadmissibility is governed under the INA 212(a)(2) in the United States. The criminal grounds are a mix of individual offenses and categories of crimes with varied levels of proof required for an immigrant to be ineligible. The current approach of INA 212(a)(2) appears to simply cast the statutory language. Foreign convictions of crimes involving moral turpitude, controlled substances, drug trafficking, human trafficking, money laundering, prostitution, and commercialized vice, as well as repeated criminal convictions, make would-be immigrants inadmissible under INA 212(a)(2).

There is nothing in the statute that qualifies or limits the geographical scope of "a crime involving moral turpitude" and, thus, it appears that foreign convictions, US convictions, or conduct that equate to crimes under US or foreign law can all result in inadmissibility while term "moral turpitude" is a solely American term that pertains only to American case law. As a result, as Matter of Silva-Trevino, 24 I. & N. Dec. 687, 693 (A.G. 2008) concedes, in the absence of an authoritative administrative methodology for resolving moral turpitude investigations, diverse procedures across the country have resulted in varied approaches.

When a foreign conviction is the basis for a determination of inadmissibility, courts and administrative officials have added some broad comparativeness by stating that the conviction must be for conduct that is regarded criminal under US standards. In some cases, however, foreign convictions are exempted from US Constitutional guarantees. Matter of Gutierrez, 14 I&N Dec. 457, 458 (BIA 1973) held that a foreign conviction need not conform to US Constitutional guarantees in order to be a conviction for immigration purposes.

The Matter of Adamo, 10 I&N Dec. 593, 594 (BIA 1964) is broad-brush comparison between two legal systems with no social or cultural comparison. In Matter of Adamo, the respondent-immigrant was sentenced to two months in prison and a fine of 10,000 Italian lire for "misappropriating" and selling 24 accordions entrusted to him in Italy. It was further ordered that the execution of this sentence shall be suspended in accordance with legislation, and no reference of the conviction shall be recorded in the certificate of penal records under the Italian criminal record. What does it mean that the conviction will not be recorded on the certificate of criminal records? Does this render the conviction de minimis, a “misdemeanor classifiable as a petty offence” under the repealed 18 U.S.C. 1 (3)? Or should the court look at the equivalent offense under US law and then determine whether it is a petty offense or not? The immigration court in this instance noted that equivalency must be determined by searching for "identical offense" in Title 18 of the United States Code or Title 22 of the District of Columbia Code. The immigration judge was convinced with his decision that "embezzlement" in the United States is a "similar offense" to "misappropriation" in Italy, but refused to explain his reasoning. Even though the Italian penalties were significantly lighter, embezzlement did not qualify as a "petty crime" because it can result in a 10-year term in the United States.

Foreign pardons, legislative amnesties, vacated convictions, and the wiping of offenses from foreign criminal records those could work as elements of systemic comparisons are commonly overlooked. The BIA held in Matter of Pickering, 23 I&N Dec. 621, 624 (BIA 2003), that a Canadian court order purporting to vacate a conviction was ineffective in removing the conviction's immigration consequences because the foreign conviction's record indicating that it was a penal conviction is conclusive evidence of the nature of the conviction. Matter of Dillingham, 21 I&N Dec. 1001, 1012 (BIA 1997), held that the pardon provision of the INA applies only to pardons granted in the United States for crimes committed in this country after entry, and that a foreign amnesty or pardon will not render a foreign conviction ineffective for immigration purposes,” referring to INA 241(a)(2)(A)(iv). In addition, Matter of Dillingham makes immigrants inadmissible if they were convicted of an offense only once as minors, even if the offense occurred in the United States and he would have been eligible for federal first offender treatment under the provisions of 18 U.S.C. 3607(a) (1994) if he had been prosecuted in the United States.

In some cases, would-be immigrants were made inadmissible not on the basis of foreign convictions but on the basis of “reason to believe” of their participation with some criminal activity. In Matter of Rico, 16 I&N Dec. 181, 184 (BIA 1977), the court concluded that INA 212(a)(2) does not require a conviction to show inadmissibility for human trafficking under this clause. In Mena-Flores v. Holder, 776 F.3d 1152 (10th Cir. 2015), Tenth Circuit found substantial evidence to support the BIA's finding in Matter of Rico that the applicant was inadmissible under INA 212(a)(2)(c) "reason to believe" he was an unlawful drug trafficker in his home country, even though he had been acquitted of all charges in the home country.

In contrary to that, it is also apparent in some rare instances where immigration judges/authorities did not rely on the simple translation or comparison of legal statute or convictions, instead, it considered the facts. In Matter of McNaughton, 16 I&N Dec. 569, 572 (BIA 1978). although the BIA makes immigrants with fraud convictions inadmissible, it did not simply translate the elements or wording but found "significant similarity" between the definitions of crime under the Canadian law and the US law. Although Matter of G M, 7 I. & N. Dec. 40 (BIA 1956) adjudicated on a whole different perspective, it admitted that in cases of admission of a criminal offence by an immigrant that the mere translation of the legal text of a statute into the noncitizen’s native language is insufficient.

In contrary to that, when structural and systemic comparisons are applied, al least to some extent, in other words the more accurate and well-thought-out the process of comparison is in determining foreign criminality, the less likely the foreigner will be declared inadmissible. For example, John Lennon's conviction for marijuana possession in London in 1968 did not result in inadmissibility when he emigrated to the United States a few years later in Lennon v. INS, 527 F.2d 187, 190, para. 29 (2nd Cir. 1975). In this case, the federal court conducted a more in-depth research comparing aspects of crimes and discovered that British criminal law did not require knowledge of guilt for drug possession, whereas our legal system requires knowledge and purpose. Therefore, case-by-case and state-by-state investigations of foreign convictions are required for a comprehensive, not necessarily liberal, immigration policy.

The BIA declared the respondent, a Latvian native, deportable under the Holtzman Amendment based on his actions with the Latvian Political Police between 1941 and 1943 in Matter of Laipenieks, 18 I&N Dec. 433 (BIA 1983). However, in Laipenieks v. I.N.S., 750 F.2d 1427, 1431, the United States Court of Appeals for the Ninth Circuit reversed the decision (9th Cir. 1985). The Ninth Circuit made a distinction in Laipenieks v. I.N.S. between police activity in support of legitimate political concerns and persecution of individuals based on religion, race, national origin, or political opinion. The work of a police officer in Nazi-occupied Latvia who investigated those who participated in the killing of thousands of Latvians while Soviet authorities occupied the country was found acceptable by the court. The officer's interrogations were "particularly constructed" to "distinguish individuals who had participated in Soviet atrocities or were legitimately suspected of working in cooperation with Soviet officials from those who were just ideologically opposed to German rule," according to the court. Laipenieks admits to hitting inmates on occasion, however, the court held that the government has failed to prove that this persecution occurred because of the prisoner's political convictions. In other words, unless the defendant had beaten the detainees for a stated reason, it would not be considered "persecution."

The necessity of applying some kind of comparison between people’s pasts, described with references to the law of their state of origin, and the destination state’s requirements, described in its own laws, says little about how those comparisons should be effected and who should make them. It is generally true, that the more fine-grained the comparison, the easier it is to find differences; and conversely, broad-brush comparisons usually return some evidence of similarity. The choice of method and actor is thus reflective of a general will or lack thereof to find larger or smaller numbers of immigrants acceptable.


About The Author

Mahmudul Hasan is a Managing Law Clerk at New York-based Gehi and Associates. He can be contacted at mahmudul.law@gmail.com.


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