CRIMINAL WITHOUT 

CONVICTION – 

PROSECUTING THE 

UNCONVICTED ARRIVING 

CRIMINAL ALIEN UNDER 

SECTION 212(a)(2)(A) OF THE 

IMMIGRATION AND 

NATIONALITY ACT 

Keith Hunsucker 

Senior Legal Instructor

The United States has long 

proscribed the admission of non-citizens 

who admit having committed crimes.1

 As 

set forth in the Immigration and 

Nationality Act (INA): 

any alien ... who admits

having committed, or who 

admits committing acts 

which constitute the 

essential elements of ... a 

crime involving moral 

turpitude ... or an attempt or 

conspiracy to commit such 

a crime ... or a violation of 

any law ... relating to a 

controlled substance ... is 

inadmissible.2

It is common knowledge that many 

individuals have committed serious crimes 

for which they have not been convicted. It 

is fortunate for law enforcement that an 

 

 

1

 Once an alien is deemed inadmissible, he might 

still in fact avoid removal through various forms of 

relief. It is impossible to address all these facets of 

the ever-changing immigration law in an article of 

this length. This article is limited to a discussion of 

procuring admissions of criminal activity to 

successfully obtain a finding of inadmissibility 

under the INA. 

2

 INA § 212(a)(2)(A)(i), 8 U.S.C § 

1182(a)(2)(A)(i)(emphasis added) 

alien3 need only admit his criminal activity 

to be inadmissible to the United States.4

 

However, to be legally effective, these 

admissions must be handled in strict 

compliance with the law. 

Initially, one might wonder why 

any individual would admit to uncharged 

criminal activity. Criminals in high crime 

areas routinely avoid police and seldom 

respond to any questioning. However, 

arriving aliens are often not as criminal 

savvy as the common street criminal. 

Additionally, unlike the common street 

criminal, the arriving alien must answer 

law enforcement questions to gain 

admission to the United States. Therefore, 

arriving aliens are much more likely to 

confess their criminal acts, especially 

when confronted with their prior criminal 

activity. 

Immigration Inspectors and Border 

Patrol Agents are the officers who most 

commonly encounter the arriving alien. 

However, other law enforcement officers 

frequently encounter aliens who they 

suspect are involved in illegal activity. If 

information regarding this activity is 

routed to appropriate immigration 

authorities, such information can be 

3

 An alien is “... any person not a citizen or national 

of the United States.” INA § 101(a)(3), 8 U.S.C § 

1101(a)(3) 

4

 Due to the incredible complexity of United States 

immigration law, some of these individuals might 

still be legally allowed to remain in the United 

States. However, a finding of inadmissibility under 

section 212(a)(2)(A)(i) has a significant impact on 

an alien’s case and usually means that the alien will 

not be allowed to enter the United States or adjust 

their legal status within the United States. A law 

enforcement officer working with United States 

immigration laws should understand that section 

212(a)(2)(A)(i) is a very useful tool, but it (like 

many other charges under the INA) does not 

guarantee removal of the alien from the United 

States. 
documented and used as a basis of 

questioning if the alien departs the United 

States and attempts re-entry, or seeks to 

adjust his status within the United States.5

 

If the alien admits to such criminal 

activity, the alien can then be refused 

admission to the United States, even 

though he has not been convicted of the 

criminal offense. 

This article gives an overview of 

the law in this area and provides practical 

advice to the law enforcement officer on 

how to obtain an admission of criminal 

activity sufficient to support a finding of 

inadmissibility under section 

212(a)(2)(A)(i) of the INA.6

THE LAW

The INA provides that arriving 

aliens are inadmissible to the United States 

if they have been convicted of a crime 

involving moral turpitude,7

 an attempt or 

conspiracy to commit such a crime,8 or a 

violation of a controlled substance offense 

of any State, the United States, or a 

foreign country.9 These aliens are also 

inadmissible if they merely admit having 

 

 

5

 Whether the alien has been legally admitted to the 

United States is a separate issue. The purpose of 

this article is to demonstrate how an alien an alien 

seeking admission to the United States or 

adjustment of his immigration status can be 

punished for criminal activity for which he has not 

been convicted. 

6

 8 U.S.C. § 1182(a)(1)(A)(i). Trial attorneys of 

the Immigration and Naturalization Service (INS) 

may also wish to employ the tactics suggested in 

this article to obtain admissions of criminal activity 

in Immigration Court. 

7 See INA § 212(a)(2)(A)(i)(I), 8 U.S.C § 

1182(a)(2)(A)(i)(I) 

8 Id. 9 See INA § 212(a)(2)(A)(i)(II), 8 U.S.C § 

1182(a)(2)(A)(i)(II). There is an exception to this 

rule for crimes committed by minors and certain 

petty offenses. See INA § 212(a)(2)(A)(ii), 8 

U.S.C. § 1182(a)(2)(A)(ii). 

committed one of those offenses, even 

where there was no criminal prosecution.10 

Finally, these aliens need only admit the 

essential elements of the criminal offense 

to be deemed inadmissible.11 It is not 

necessary that they admit the legal 

conclusion that they in fact committed a 

specific crime.12

A plain reading of the statute 

suggests that factual admissions of 

criminal activity by the alien are sufficient 

to support a criminal charge of 

inadmissibility. However, these 

admissions must comply with seldomcited13 but long-standing case law from the 

Board of Immigration Appeals14 (the 

Board) to effectively support a charge of 

inadmissibility. 

10 See INA § 212(a)(2)(A)(i), 8 U.S.C § 

1182(a)(2)(A)(i) 

11 Matter of E-V-, 5 I&N Dec. 194 (BIA 1953) 12 Id. 13 It is not exactly clear why there are not more 

recent precedent decisions on this issue. However, 

there are numerous different factors to consider. 

First, INS trial attorneys are actively discouraged 

from appealing adverse decisions. As a result, 

when the Immigration Court admits an alien 

charged with admitting criminal activity, it is very 

unlikely the INS will appeal, even if it believes the 

decision was wrong. Secondly, since aliens 

seeking admission to the United States are often 

detained throughout the hearing process, they 

frequently elect removal from the United States 

rather than remaining in detention throughout a 

lengthy appeal. Finally, it appears that many 

officers are simply not knowledgeable about this 

charge, and therefore do not use it aggressively. 

This article seeks to increase that knowledge, and 

thereby increase the application of this charge of 

inadmissibility. 

14 The Board of Immigration Appeals is part of the 

Executive Office for Immigration Review, United 

States Department of Justice. It is an administrative 

panel charged with reviewing the decisions of 

Immigration Judges. Its precedent decisions are 

binding on these judges. See generally 8 C.F.R. 

3.1. 
In Matter of K-, the Board held that 

before an alien can be charged with 

inadmissibility due to admitting the 

elements of a crime involving moral 

turpitude, the alien must be given the 

following: 1) an adequate definition of the 

crime, including all essential elements, and 

2) an explanation of the crime in 

understandable terms.15 The Board noted 

that these rules “were not based on any 

specific statutory requirement but appear 

to have been adopted for the purpose of 

insuring that the alien would receive fair 

play and to preclude any possible later 

claim by him that he had been unwittingly 

entrapped into admitting the commission 

of a crime involving moral turpitude.”16

Experience has demonstrated that 

very few law enforcement officers are 

aware of these rigid requirements. This is 

probably due to several reasons. First, the 

statute does not suggest the need to 

provide a specific definition and 

explanation of the criminal charge to the 

alien. Secondly, it hardly seems to violate 

the notion of “fair play” to ask an arriving 

alien if he has been involved in criminal 

activity. Finally, the issue of entrapment 

appears entirely misplaced because there is 

no government inducement. 

Nonetheless, since Matter of Kand related cases have been precedent for 

over 40 years, it seems unlikely that the 

current Board will be inclined to overrule 

them. While not explicitly stated, it seems 

that the real concern of the Board is one of 

self-incrimination. Therefore, the prudent 

officer should build his case with that 

thought in mind. Additionally, the officer 

must remember that immigration laws do 

 

15 7 I&N 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) 16 Id. 

not usurp criminal self-incrimination law 

such as Miranda v. Arizona.

17 

Immigration proceedings are not criminal, 

and therefore an alien may be compelled 

to explain his criminal activity if he wants 

any immigration benefits, including 

admission to the United States. The 

alien’s answers or refusal to answer may 

result in his being denied admission to the 

United States. However, if a law 

enforcement officer wants to obtain 

information for use in a criminal 

prosecution, he must comply with criminal 

rules of obtaining evidence. In sum, 

section 212(a)(2)(A) is a valuable tool for 

removing aliens who admit to criminal 

activity for which they have not been 

convicted. It is not a means to compel an 

individual to criminally incriminate 

themselves in violation of the Fifth 

Amendment. 

THE ADMISSIONS

As noted, the alien need only admit 

the elements of the crime, not the legal 

conclusion that he actually committed the 

crime.18 However, the admissions must be 

voluntary19 and unequivocal.20 The 

admissions must, by themselves, constitute 

full and complete admission of (or attempt 

or conspiracy to commit) a crime 

involving moral turpitude or a controlled 

substance offense.21 If an alien has 

 

17 384 U.S. 436 (1966) 

18 Matter of K-, supra, citing Matter of E-V-, 5 I&N 

Dec. 194 (BIA 1953); see also generally Matter of 

G-M-, 7 I&N Dec. 40 (BIA 1955), affirmed 7 I&N 

40, 85 (A.G. 1956). 

19 Matter of G-, 1 I&N Dec. 225, 227 (BIA 1942); 

see generally Jelic v. INS, 106 F.2d 14 (2d Cir. 

1939) 

20 Matter of L- 2 I&N Dec. 486 (BIA 1946), see 

also generally Matter of P-, 4 I&N Dec. 252 (A.G. 

1951) 

21 Matter of E-N-, 7 I&N Dec. 153 (BIA 1956) (in 

dealing with a divisible statute, once the alien’s 

admissions reach the level of the misdemeanor 
received a pardon for an offense, 

subsequent admission to the offense will 

not render him inadmissible.22 If the 

criminal offense was adjudicated and 

resulted in dismissal, subsequent 

admissions by the alien will not establish 

inadmissibility unless the dismissal by the 

criminal court was on purely technical 

grounds.23

 

BUILDING A CASE

It is the burden of an arriving alien 

to prove that he is admissible to the United 

States.24 If an alien refuses to answer 

questions in support of his request to enter 

the United States, he can (and likely will) 

be deemed inadmissible. Therefore, it is 

unlikely that an alien will simply refuse to 

answer questions about criminal activity 

when questioned by a federal law 

enforcement officer.25 An alien may lie 

about his prior criminal activity, but this 

(if discovered) will render the alien 

inadmissible on other grounds.26

Many aliens do admit to criminal 

activity for which they have not been 

convicted. The alien may believe his 

actions were not criminal, or he may 

believe that without a conviction he cannot 

 

 offense, the court may not speculate that the alien 

would have been sentenced as a felon and therefore 

rendered inadmissible); see generally Howes v. 

Tozer, 3 F.2d 849 (1st Cir. 1925) 22 Matter of E-V-, 5 I&N Dec. 194 (1953) 23 Matter of C-Y-C-, 3 I&N Dec. 623, 629-630 

(BIA 1950) 

24 It should be noted that aliens who have entered 

without inspection are now inadmissible as if they 

were detained at the border. See INA § 

212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i) 25 As noted previously, such questioning may raise 

evidentiary and self-incrimination concerns under 

Miranda and similar cases. Discussion of this 

complex issue must wait for another day. 

26 Specifically, INA § 212(a)(6)(C)(i), 8 U.S.C. §

1182(a)(6)(C)(i) 

be further prosecuted. He likely suspects 

that the officer is aware of his criminal 

activity and that an admission, coupled 

with a fast-talking explanation, might 

allow him to convince the officer to permit 

him entry into the United States. In many 

instances the officer is alert to the 

possibility of criminal activity, based on 

arrest records or other leads. 

As discussed previously, the mere 

admission of criminal activity is not 

enough to establish inadmissibility. The 

law enforcement officer must use lawful 

means to obtain admissions that will be 

legally sufficient to support the criminal 

charge of inadmissibility. 

To meet that goal, the following 

process is recommended: 

First, the alien should be 

thoroughly questioned to determine if he 

has committed a crime.27 Where available, 

arrest records will provide the officer a 

starting point to initiate questioning.28 

Questioning should always be in a 

confident presumptive manner. For 

example, an officer encounters an alien 

with an arrest for cocaine possession but 

no conviction. He should not ask: “Have 

you ever knowingly possessed a controlled 

substance?” Rather, he should assert: “I 

27 It is essential that this questioning be done in a 

language which the alien is fluent. An officer 

should always anticipate an allegation that the alien 

did not understand the questions. Any use of an 

interpreter should be carefully documented so that 

the interpreter can be called as a witness if 

necessary. 

28 As noted previously, if the true intent of the 

questioning is to build a case for criminal 

prosecution, the officer should be aware of 

potential Fifth Amendment self-incrimination 

issues. Removal hearings in Immigration Court are 

not criminal. Therefore, admissions of criminal 

activity that are admissible in Immigration Court 

may not be admissible in a criminal prosecution. 
see you’ve been involved with cocaine. 

Are you still dealing drugs?” When 

confronted with the very serious offense of 

trafficking in cocaine, many criminal drug 

users will immediately deny this offense 

while equivocating on the lesser offense of 

cocaine possession. Experience indicates 

that if this individual actually was 

involved with cocaine, they will likely 

admit to it if questioned properly. 

However, the officer must be very 

cognizant that the criminal alien might 

later assert he was improperly coerced into 

making damning admissions. Therefore, 

the officer should carefully document 

every circumstance surrounding the 

interrogation.29

Once the “cat is out of the bag,” it 

is unlikely the alien will deny the criminal 

activity when the officer seeks to 

document the admissions in writing. 

However, before preparing the written 

statement, the officer must locate the 

precise state or federal criminal statute the 

alien admits violating. Within the context 

of a recorded30 statement, the officer 

should present the elements of this statute 

to the alien, and have the alien admit to 

each element of the offense. For example, 

an officer learns that an arriving alien has 

an arrest record in the United States for 

sale of cocaine. This arrest did not lead to 

conviction. However, during questioning 

the alien admits that he had a personal 

problem with using cocaine but that he 

 

 

29 The author is confident of the ability to extract 

these admissions because he has done so many 

times in open court, an environment that can hardly 

be called a coercive atmosphere for extracting 

admissions of criminal activity. 

30 The statement may be recorded in writing or by 

electronic device. Audio / video recordings are an 

excellent means to record the demeanor of the 

parties and preserve exactly what was said during 

the interview. However, for evidentiary purposes, 

the statement should be properly reduced to writing 

to insure its admissibility in Immigration Court. 

never sold it. Title 21 U.S.C. § 844 makes 

it unlawful to knowingly possess a 

controlled substance. Thereafter, the 

officer obtains admissions of criminal 

wrongdoing from the alien (in the alien’s 

language). Such an interrogation might go 

as follows: 

Q. A few minutes ago 

you told me that 

you tried cocaine 

here in the United 

States. Did you in 

fact tell me that? 

A. Yes 

Q. In order to possess 

that cocaine you had 

to actually have it in 

your possession, 

correct? 

A. Yes 

Q. This wasn’t an 

accident, you knew you had 

cocaine in your possession, 

correct? 

A. Yes 

Q. Do you understand 

that Title 21 of the 

United States Code 

at section 844 

makes it unlawful to 

knowingly possess a 

controlled 

substance? 

A. Yes31

31 Having the alien confess to the actual criminal 

charge is actually beyond the strict requirements of 

existing case law. However, it is highly 

recommended that the officer obtain such 
Q. Do you admit that 

on [date] you knowingly 

possessed cocaine? 

A. Yes 

Q. And this possession 

took place in the United 

States32? 

A. Yes 

The alien may likely have a further 

explanation, such as the use was long ago, 

he’s learned his lesson, etc. It is best to 

include every bit of this explanation in the 

written statement. This will help rebut any 

future claim from the alien that he was 

confused or that he did not mean he 

actually possessed cocaine. 

CONCLUSION

Some aliens have been so 

frequently involved with the criminal 

justice system that they have no idea of the 

crimes for which they were actually 

convicted. Due to plea bargaining, these 

convictions may not truly reflect the extent 

of the alien’s criminal activity. In these 

situations, admissions by the alien 

regarding his actual criminal behavior 

provide a far more truthful revelation 

about his criminal activity than a 

conviction record. 

The skillful use of legitimate 

interrogation tactics can result in reliable 

admissions of criminal activity. However, 

to make an alien inadmissible to the 

 

confession where possible. This further negates 

any future claims by the alien that he did not 

realize he was admitting to criminal activity when 

he admitted the elements of the criminal offense. 

32 Jurisdiction is a critical element in demonstrating 

that the alien’s actions constituted a crime at the 

place where they occurred. 

United States these admissions must 

comply with existing law in both scope 

and form. Hopefully, the suggestions in 

this article will assist law enforcement 

officers to obtain admissions that are 

legally sufficient. 

Some advocates complain that the 

tactics described in this article unfairly 

cause the criminal alien to admit to crimes. 

They suggest that unless the alien has been 

convicted by the criminal court system, it 

is unfair to punish him for criminal 

activity for which he has managed to avoid 

conviction. This attitude is simply not 

consistent with the law of the United 

States. 

Admission to the United States is a 

privilege. The United States does not need 

to import criminals from overseas. Used 

properly, INA section 212(a)(2)(A)(i) 

provides one more weapon the law 

enforcement officer can use to protect the 

citizens of the United States.