9 FAM 302.3

(U) Ineligibility based on Criminal Activity, Criminal Convictions and related activities - INA 212(a)(2)

(CT:VISA-239; 10-28-2016)
(Office of Origin: CA/VO/L/R)

9 FAM 302.3-1 (u) Statutory and REgulatory AuthoritY

9 FAM 302.3-1(A) (U) Immigration and Nationality Act

(CT:VISA-1; 11-18-2015)

(U) INA 101(a)(48) (8 U.S.C. 1101(a)(48)); INA 212(a)(1) (8 U.S.C. 1182(a)(1)); INA 212(a)(2)(A) (8 U.S.C. 1182(a)(2)(A)); INA 212(a)(2)(B) (8 U.S.C. 1182(a)(2)(B)); INA 212(a)(2)(C) (8 U.S.C. 1182(a)(2)(C)); INA 212(a)(2)(D) (8 U.S.C. 1182(a)(2)(D)); INA 212(a)(2)(E) (8 U.S.C. 1182(a)(2)(E)); INA 212(a)(2)(H) (8 U.S.C. 1182(a)(2)(H)); INA 212(a)(2)(I) (8 U.S.C. 1182(a)(2)(I)); INA 212(d)(3)(A) (8 U.S.C. 1182(d)(3)(A)); INA 212(g) (8 U.S.C. 1182(g)); INA 212(h) (8 U.S.C. 1182(h)); INA 212(i) (8 U.S.C. 1182(i)); INA 216 (8 U.S.C. 1186a)); INA 221(g) (8 U.S.C. 1201(g)); INA 237(a)(2)(A) (8 U.S.C. 1227(a)(2)(A)).

9 FAM 302.3-1(B) (U) Code of Federal Regulations

(CT:VISA-1; 11-18-2015)

(U) 8 CFR 212.7(a)(4); 22 CFR 40.21; 22 CFR 40.22; 22 CFR 40.24; 22 CFR 40.25; 22 CFR 40.27; 22 CFR 40.28.

9 FAM 302.3-1(C) (U) Public Laws

(CT:VISA-1; 11-18-2015)

(U) Juvenile Justice and Delinquency Prevention Act of 1974, Public Law 93-415; Comprehensive Crime Control Act of 1984, Public Law 98-473; Immigration Act of 1990, Public Law 101-649, sec. 505; Omnibus Consolidated Appropriations Act, 1997, Public Law 104-208, sec. 322; USA Patriot Act, Public Law 107-56, sec. 1006; William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Public Law 110-457.

9 FAM 302.3-1(D) (U) United States Code

(CT:VISA-1; 11-18-2015)

(U) 18 U.S.C. 16; 18 U.S.C. 1621; 18 U.S.C. 1956; 18 U.S.C. 1957; 18 U.S.C. 3607; 18 U.S.C. 5031; 22 U.S.C. 7102(8).

9 FAM 302.3-2 (U) Crimes of Moral Turpitude - INA 212(a)(2)(A)(i)(I)

9 FAM 302.3-2(A) (U) Grounds

(CT:VISA-1; 11-18-2015)

(U) Aliens who have been convicted of, or admit to commission of, certain statutory offenses that involve moral turpitude are ineligible under INA 212(a)(2)(A)(i)(I).

9 FAM 302.3-2(B) (U) Application

9 FAM 302.3-2(B)(1) (U) Applying INA 212(a)(2)(A)(i)(I)

(CT:VISA-110; 04-14-2016)

a. (U) Determining Ineligibility: When adjudicating a visa application for an applicant whom you have reason to believe has committed a crime involving moral turpitude, you must determine whether:

(1) (U) The offense was purely political (see 9 FAM 302.3-2(B)(9));

(2) (U) The offense committed involves moral turpitude (see 9 FAM 302.3-2(B)(2));

(3) (U) The applicant has been convicted (see 9 FAM 302.3-2(B)(3)); and

(4) (U) The applicant has admitted or may admit that he or she has committed acts which constitute the essential elements of a crime (see 9 FAM 302.3-2(B)(4)).

b. (U) Exceptions to Ineligibility: Certain statutory exceptions may prevent a determination of ineligibility by reason of a conviction for a crime involving moral turpitude. These exceptions relate to:

(1) (U) Crimes described in the "sentencing exception" (see 9 FAM 302.3-2(B)(6);

(2) (U) Crimes committed prior to age 18 (see 9 FAM 302.3-2(B)(7)); and

(3) (U) Certain purely political offenses and convictions (see 9 FAM 302.3-2(B)(9)).

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

(CT:VISA-239; 10-28-2016)

a. (U) Evaluating Moral Turpitude Based Upon Statutory Definition of Offense and U.S. Standards: To render an alien inadmissible under INA 212(a)(2)(A)(i)(I) the conviction 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 alien was convicted, 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) or a political offense (see 9 FAM 302.3-2(B)(9)). The presence of moral turpitude in a statutory offense is determined according to United States 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 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 are:

(1) (U) Fraud;

(2) (U) Larceny; and

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

c. (U) Common Crimes Involving Moral Turpitude: Categorized below are some of the more common crimes, which are considered to involve moral turpitude. Each category is followed by a separate list of related crimes, which are held not to involve moral turpitude.

(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 individuals or 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, such as the act of arson. The following list comprises crimes frequently committed against property, which may be held to involve moral turpitude for the purposes of visa issuance:

(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); and

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

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

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

(ii) (U) Breaking and entering (requiring no specific or implicit intent to commit a crime involving moral turpitude);

(iii) (U) Passing bad checks (where intent to defraud not required);

(iv) (U) Possessing stolen property (if guilty knowledge is not essential);

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

(vi) (U) Juvenile delinquency.

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

(a) (U) Moral Turpitude Crimes: Crimes committed against governmental authority which fall within the definition of moral turpitude include:

(i) (U) Bribery;

(ii) (U) Counterfeiting;

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

(iv) (U) Mail fraud;

(v) (U) Perjury;

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

(viii) (U) Tax evasion (willful).

(b) (U) Crimes Without Moral Turpitude: Crimes committed against governmental authority, which would not constitute moral turpitude for visa-issuance purposes, are, in general, violation of laws which are 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):

(vii) (U) Drunkenness;

(vii) (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) Immigration violations;

(xiv) (U) Liquor violations;

(xv) (U) Loan sharking;

(xvi) (U) Lottery violations;

(xvii) (U) Possessing burglar tools (without intent to commit burglary);

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

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

(xx) (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 constitute moral turpitude as it relates to visa issuance, include:

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

(ii) (U) Adultery (see INA 101(f)(2) repealed by Public Law 97-116);

(iii) (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.);

(iv) (U) Bigamy;

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

(vi) (U) Gross indecency;

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

(viii) (U) Kidnapping;

(ix) (U) Lewdness;

(x) (U) Manslaughter:

(U) Voluntary, occurs when a person intentionally kills another person after "adequate provocation"; that is, there has been action that was sufficient to incite an "ordinary person" to "sudden and intense passion" such that s/he loses self-control. It should be noted that the time between provocation and the killing should not be long enough for the passion to have cooled off. In most states, "adequate provocation" is defined to be only situations in which there is a threat of deadly force, or in which a person finds his/her spouse in bed with another person. Verbal threats are usually not considered adequate provocation; and

(U) Involuntary, where the statute requires proof of recklessness, which is defined as the awareness and conscious disregard of a substantial and unjustified risk which constitutes a gross deviation from the standard that a reasonable person would observe in the situation. 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 (By statute, a person may be convicted of statutory rape even though the victim consents and provided she or he is under the statutory age at the time of the commission of the act. Statutory rape is also deemed to involve moral turpitude.)

(b) (U) No Moral Turpitude: Crimes committed against the person, family relationship, or sexual morality which do not involve moral turpitude include:

(i) (U) Assault (simple) (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) Illegitimacy (i.e., the offense of begetting an illegitimate child);

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

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

(v) (U) Involuntary manslaughter (when killing is not the result of recklessness);

(vi) (U) Libel;

(vii) (U) Mailing an obscene letter;

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

(ix) (U) Riot; and

(x) (U) Suicide (attempted).

(4) (U) Intentional Distribution of Controlled Substances: The Board of Immigration Appeals has determined that a conviction for the intentional distribution of a controlled substance or a conviction for drug trafficking is a crime involving moral turpitude. A typical drug statute that would constitute a crime involving moral turpitude is possession with intent to distribute. In order to be a crime involving moral turpitude, a conviction is required, unlike an ineligibility under INA 212(a)(2)(C)(1) based only on reason to believe. The mere possession or use of a controlled substance is not a crime involving moral turpitude.

c. (U) Attempts, Aiding And Abetting, Accessories, And Conspiracy

(1) (U) The following types of crimes are held to be crimes involving moral turpitude:

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

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

(c) (U) Being an accessory (before or after the fact) in the commission of a crime deemed to involve 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 alien 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-239; 10-28-2016)

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) (U) a finding of guilty by a judge or jury, a plea of guilty or nolo contendere by the alien, or an admission from the alien of sufficient facts to warrant a finding of guilt; and

(b) (U) The imposition of some form of punishment, penalty, or restrain of liberty by a judge.

b. (U) Other Factors Bearing On Existence Of Conviction: The question of the presence of a conviction is a factual matter, independent of official record. An indication that an alien has been convicted of a crime may appear in:

(1) (U) replies to questions;

(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 kind of information, which may be developed concerning the applicant.

c. (U) Evidence Of Conviction: Official records generally suffice to establish the existence of a conviction. However, some convictions that would make INA 212(a)(2)(A)(i)(I) applicable are no longer a matter of record. It must be borne in mind that not all expungements or pardons serve to relieve the individual of the effects of the conviction for immigration purposes. Therefore, 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, the consular officer may require any evidence relevant to the aliens history which may appear necessary to determine the facts. CA/VO/L/A can provide guidance in cases where you are unsure if a conviction exists for purposes of applying INA 212(a)(2)(A)(i).

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. In light of 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 if the alien 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 subsequently overturned these decisions in the case Nunez-Reyes v. Holder, 646 F.3d 684 (July 14, 2011), and now follows the holding in Roldan. However, this decision did not have retroactive effect, so state judicial expungements that predate this decision can still be effective for immigration purposes in the Ninth Circuit. Because of the complexity of this issue, cases that involve claims for state judicial expungement relief must be submitted as an advisory opinion request to CA/VO/L/A.

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 of these 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 vitiates a conviction for purposes of INA 212(a)(2)(A)(i)(I).

f. (U) Convictions Relating To Pre-Trial Actions:

(1) (U) An applicant has not been convicted of a crime if he or she merely:

(a) (U) Is under investigation;

(b) (U) Has been arrested or detained;

(c) (U) Has been charged with a crime; or

(d) (U) Is under indictment.

(2) (U) However, such facts may indicate that some other basis of inadmissibility may exist (e.g., second clause of INA 212(a)(2)(C), INA 212(a)(1), etc.). At your discretion, you may refuse any under INA 221(g) which involves an alien charged, but not convicted of a crime to await the outcome of the proceedings, if the outcome is imminent, or to permit local authorities in appropriate cases to take steps to prevent the departure of the alien from their jurisdiction. Where applicable, in the case of a nonimmigrant visa applicant charged with a crime, you should also consider how the charge may affect the applicants intention to return to his or her place of residence.

g. (U) Convictions Relating To Actions During Trial:

(1) (U) Nolo Contendere Plea: Court action following a plea of no contest nolo contendere constitute a conviction.

(2) (U) Conviction in Absentia: A conviction in absentia does not constitute a conviction, unless the accused had a meaningful opportunity to participate in the judicial proceedings. Any participation in judicial proceedings by the accused may mean that the conviction was not one made in absentia. For example, if a conviction in absentia has been appealed by the person convicted, the person has appeared for that purpose and the conviction has been affirmed, so therefore it is no longer considered a conviction in absentia. Similarly, representation by the accused in a trial proceeding may preclude a finding that the trial was conducted in absentia. You must submit all cases where the facts suggest that a conviction may have been made in absentia to CA/VO/L/A for an advisory opinion.

(3) (U) Conviction by Court-Martial: A conviction by court-martial is a conviction for purposes of visa adjudication, consistent with Matter of Rivera-Valencia, 24 I & N Dec. 484 (BIA 2008). (4) (U) Judicial Recommendation Against Deportation (JRAD) :

(a) (U) Section 505 of the Immigration Act of 1990, Public Law 101-649, eliminated judicial recommendation against deportation (JARD) for convictions, which occurred on, or after November 29, 1990, the date of enactment of Public Law 101-649. The Department of Homeland Security (DHS), and the Department of State will recognize JRADs granted prior to that date. Those issue on or after that date will not be recognized.

(b) (U) Former INA 241(b)(2), repealed by Public Law 101-649, granted relief from deportation to an alien for whom the judge, at the time of sentencing or within thirty days thereafter, recommended to the Secretary of DHS that the alien not be deported. Such judicial recommendation granted prior to November 29, 1990, has the effect of immunizing the alien from the application of INA 212(a)(2)(A)(i) with regard to the conviction for which the JRAD was issued. It has no effect, however, on inadmissibility under INA 212(a)(2)(A)(ii) since 241(a)(2)(B) specifically exempted convictions for violations of drug laws from eligibility for a JRAD. JRADs affect convictions within the U.S. judicial system only. Convictions in foreign courts are not susceptible to a JRAD by either their own courts or by U.S. courts.

(5) (U) Conviction While U.S. Citizen:

(a) (U) In view of the elimination of JRAD, the finding of the Supreme Court in Costello v. INA, 376 U.S. 120, is now in question. The Supreme Court held that a conviction of a naturalized citizen did not invoke deportation under INA 241(a)(2)(A)(i) since the possibility of a judicial recommendation under INA 214(b) was not available for a citizen of the United States. Consequently, an alien was convicted while a U.S. citizen was not inadmissible to receive a visa under INA 212(a)(2)(A)(i) based solely upon such a conviction.

(b) (U) You must submit all cases involving the conviction of an applicant while he or she was a citizen of the United States to CA/VO/L/A for an advisory opinion. (See 9 FAM 302.3-2(C).)

h. (U) Pardons Relating To Convictions: INA 237(a)(2)(A)(vi) provides that certain U.S. pardons remove deportability for U.S. convictions. Matter of H--,6 I&N Dec. 90, holds that such pardons remove inadmissibility under INA 212(a)(2)(A)(i)(I). Pardons that have this mitigating effect must be of specific kinds. Generally, they must be pardons granted by the highest appropriate executive authority; a legislative pardon alone will not remove inadmissibility. More specifically, the pardon must be granted by the President, State Governor, or other person specified in 22 CFR 40.21(a)(5). A pardon granted by a mayor is acceptable if law, as the supreme pardoning authority under relevant municipal ordinances, has designated such official. A pardon will remove inadmissibility only when it is full and unconditional. The post must submit any case presenting a pardon, which bears limitations or restrictions to CA/VO/L/A for an advisory opinion. (See 9 FAM 302.3-2(C).)

i. (U) Suspending Sentence, Probation, Etc., Relating To Convictions: An alien who has been convicted and whose sentence has been suspended or reduced, mitigated, or commuted, or who has been convicted and has been granted probation or parole or has otherwise been relieved in whole or in part of the penalty imposed, is nevertheless, considered to have been convicted. Suspending or deferring a sentence and imposing probation is an act of clemency, not a right of the defendant alien.

j. (U) Appeals Pertaining To Convictions: For the purposes of adjudicating a visa application, a visa applicant has been convicted of a criminal offense when the conviction is entered in the trial court. It does not matter whether the applicant has filed a direct appeal of the conviction to a higher court, nor whether the appeal period has expired. You must refuse the visa accordingly. But a conviction no longer exists if the judgment of conviction has been vacated by the trial court on the merits, or overturned on appeal to a higher court. If an applicant presents evidence that the conviction was vacated or overturned on appeal, review the document to make sure that all convictions that would result in inadmissibility have been reversed. If you are uncertain whether all relevant charges were reversed on appeal, you may submit the case to CA/VO/L/A for an advisory opinion. A prior visa denial based on a conviction does not require denial of a later visa application, if the applicant establishes that the conviction has been vacated on the merits or overturned on appeal.

k. (U) Vacating A Conviction:

(1) (U) When a court acts within its jurisdiction and vacates its own original judgment of conviction, no conviction for the purposes of the immigration laws will exist. The vacating of a conviction on a writ of coram nobis eradicates the conviction for immigration purposes (Matter of Sirhan, 13 I&N Dec. 592).

(2) (U) Writ of coram nobis: from Latin in our presence is an order by a court of appeal to a court which rendered judgment requiring that trial court to consider facts not on the trial record which might have resulted in a different judgment if known at the time of the trial.

l. (U) Absence Of Conviction In Nolle Prosequi Cases: The grant of a new trial by a judge following a conviction, together with a dismissal of cause nolle prosequi (a decision not to proceed with a case), eradicates the conviction for immigration purposes.

9 FAM 302.3-2(B)(4) (U) Admitting Crimes Involving Moral Turpitude

(CT:VISA-239; 10-28-2016)

a. (U) Alien Admission To Crime Involving Moral Turpitude: If it is necessary to question an alien for the purpose of determining whether the alien is ineligible to receive a visa as a person who has admitted the commission of the essential elements of a crime involving moral turpitude, you shall make the verbatim transcript of the proceedings under oath a part of the record. In eliciting admissions from visa applicants concerning the commission of criminal offenses, you must observe carefully the following rules of procedure which have been imposed by judicial and Board of Immigration Appeals decisions:

(1) (U) You should give the applicant a full explanation of the purpose of the questioning. The applicant must then be placed under oath and the proceedings must be recorded verbatim.

(2) (U) The crime, which the alien has admitted, must appear to constitute moral turpitude based on the statute and statements from the alien. It is not necessary for the alien to admit that the crime involves moral turpitude.

(3) (U) Before the actual questioning, you must give the applicant an adequate definition of the crime, including all essential elements. You must explain the definition to the applicant in terms he or she understands; making certain it conforms to the law of the jurisdiction where the offense is alleged to have been committed.

(4) (U) The applicant must then admit all the factual elements, which constituted the crime (Matter of P--, 1 I&N Dec. 33).

(5) (U) The applicants admission of the crime must be explicit, unequivocal and unqualified (Howes v. Tozer, 3 F2d 849).

b. (U) Admissions Relating To Acquittals Or Dismissals: An admission by an alien is deemed ineffective with respect to a crime for which the alien has been tried and acquitted, or, for which, charges have been dismissed by a court.

c. (U) Failing To Prosecute Charges Concerning Offense: The failure of the authorities to prosecute an alien who has been arrested will not prevent a finding of ineligibility based upon an admission by the applicant.

d. (U) Guilty Plea Without Conviction: A plea of guilty in a trial will not constitute an admission if a conviction does not result or if it is followed by a new trial and subsequent acquittal or dismissal of charges.

e. (U) Official Confession Constituting Admission: An official confession made in a prior hearing or to a police officer may constitute an admission if the statement meets the standards of these Notes.

f. (U) Cases Involving Retraction Of Admission: Once an admission has been made, attempts to retract it need not remove the basis of ineligibility. However, you must evaluate the truthfulness of such an admission. If you believe the admission to be true despite the aliens retraction, a finding of inadmissibility is warranted. Conversely, if you believe the retraction to be justifiable, the aliens admission to a crime will have no effect on the case. (See 9 FAM 302.9-4(B)(4)).

g. (U) Coercing To Obtain Admission Prohibited: You must not resort to threats or promises in an attempt to extract an admission from an alien. Action that tends to induce an alien to make an admission may constitute entrapment, and any admission or confession obtained by such methods may have no legal force or effect.

h. (U) Admitting All Essential Elements:

(1) (U) In each case, the reviewing consular officer must keep in mind the essential elements of the offense. For example, the essential elements of the crime of perjury (which is an offense involving moral turpitude) as defined in 18 U.S.C. 1621 are:

(a) (U) The taking of an oath;

(b) (U) Duly administered by a competent authority;

(c) (U) In a case in which an oath is required by law;

(d) (U) A false statement;

(e) (U) Knowingly or willfully made; and

(f) (U) Regarding a material matter.

(2) (U) To legally constitute the admission of the commission of the crime of perjury in the example given above an alien must fully, completely, and unequivocally admit elements (a), (d), and (e). Elements (b), (c), and (f) are primarily questions of law which the alien is not required to admit but which you must find to exist to constitute the crime of perjury.

i. (U) Quality Of Admission: In any case where an admission is considered independent of any other evidence, you must develop that admission to a point where there is no reasonable doubt that the alien committed the crime in question. (See 9 FAM 302.9-4(B)(4)).

9 FAM 302.3-2(B)(5) (U) Determining Whether Conviction is Crime Involving Moral Turpitude

(CT:VISA-1; 11-18-2015)

a. (U) Provisions Of Law Defining Particular Offense: Where the record clearly shows the conviction to be predicated on a specific provision of law, whose terms necessarily embrace only acts that are offenses involving moral turpitude, the fact that the conviction was so predicated supports a conclusion that the conviction was of a crime that involves moral turpitude. Since the ineligibility relates to the conviction of a crime, rather than a commission of a crime, involving moral turpitude, the statutory definition of the offense will determine whether the conviction involves moral turpitude. Each separate provision of law defining an offense must be read in conjunction with such other provisions of law as are pertinent to its interpretation.

b. (U) Divisible Statutes Under U.S. And Foreign Law:

(1) (U) If the provision of law on which a conviction is predicated has multiple sections, only some of which involve moral turpitude, you must evaluate the nature of the act to determine if the conviction was predicated on the section of the statute involving moral turpitude. If the divisible statute in question is part of the law of one of the states you may only examine the charge, plea, verdict, and sentence in assessing the presence of moral turpitude in the act for which the conviction was obtained.

(2) (U) If the statute in question is foreign, you may assess the presence of moral turpitude in the act for which conviction has been obtained by reference to any part of the record or from admissions of the alien.

9 FAM 302.3-2(B)(6) (U) Sentencing Exception

(CT:VISA-239; 10-28-2016)

a. (U) Provisions Of INA 212(a)(2)(A)(ii)(II): A conviction or admission of the commission of a crime of moral turpitude will not serve as the basis of ineligibility under INA 212(a)(2)(A)(i) under the sentencing exception (also known as the petty offense exception), if the following conditions have been met:

(1) (U) The applicant has been convicted of or has admitted to the commission of only one crime;

(2) (U) The maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed, see 9 FAM 302.2-2(B)(4)) did not exceed imprisonment for one year; and

(3) (U) If the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of six months.

b. (U) Applying The Sentencing Exception: The language that the alien was not sentenced to a term of imprisonment in excess of six months refers to how long the alien was originally sentenced for regardless of the extent to which the sentence was ultimately executed. The term of imprisonment that you need to analyze constitutes the specific sentence meted out by the court prior to the imposition of any suspension. For example, if a court imposes a sentence of nine months of imprisonment, but suspends all nine months and imposes two years of probation, the alien cannot benefit from the sentencing exception because the nine months term of imprisonment exceeds the statutory six months maximum.

c. (U) Applicability Of Law, Foreign Or Domestic, Relevant To Crime: In assessing the applicability of this provision to an applicant who has admitted the commission of acts constituting a crime of moral turpitude, it is necessary only to look to the law, foreign or domestic, of the jurisdiction where the acts were committed. It is not necessary to refer to federal or other U.S. standards to distinguish between felonies and misdemeanors.

d. (U) Early Release, Parole: An applicant whose imposed sentence exceeds imprisonment for a period of six months cannot receive consideration under this provision of INA 212(a)(2)(A)(ii)(II) even though the applicant was released early on parole or for good behavior. (See 9 FAM 302.3-2(B)(6) paragraph b above.)

e. (U) Applying the Sentencing Exception: Since the sentencing exception is to be applied retrospectively as well as prospectively, aliens previously found to be inadmissible under INA 212(a)(2)(A)(i)(I) might no longer be inadmissible under the terms of a statute if that statute is amended or changed. All visa applications, therefore, must be assessed under the current statute without regard to any previous finding(s) of inadmissibility.

f. (U) Distinguishing Between Single Offense And Single Conviction: The INA language requires that the sentencing exception is applicable only if the alien has committed only one crime involving moral turpitude. You must determine, as a matter of fact, whether despite the fact that there is a single conviction, the alien may have committed more than one crime.

(1) (U) Multiple Counts: An alien convicted on two counts involving moral turpitude in one indictment is ineligible for the sentencing exception even though only one conviction exists and the two offenses constituted a single scheme of criminal misconduct.

(2) (U) Relevant Facts: In Matter of S. R., 7 I&N Dec. 495; Matter of DeM., 9 I&N Dec. 218, it has been held that when an aliens conviction has been expunged under a state expungement proceeding, you may use the conviction as evidence that the alien committed more than one crime of moral turpitude and is therefore ineligible for relief under the sentencing exception.

9 FAM 302.3-2(B)(7) (U) Minor Exception

(CT:VISA-110; 04-14-2016)

a. (U) Provisions of INA 212(a)(2)(A)(ii)(I): A conviction or admission of the commission of a crime of moral turpitude will not serve as the basis of ineligibility under INA 212(a)(2)(A)(i)(I), if the following conditions have been met:

(1) (U) The crime was committed when the alien was under 18 years of age; and

(2) (U) The crime was committed (and the alien released from any confinement to a prison or correctional institution imposed for the crime) more than five years before the date of application for a visa or other documentation and the date of application for admission to the United States.

b. (U) More Than One Crime: In some instances, court records in a case might show that an alien under the age of 18 years had committed more than one crime involving moral turpitude although only one conviction resulted. In such a case, the alien is ineligible for the exception.

c. (U) Conviction When Over 18: It does not matter if the conviction occurred when the applicant was over the age of 18, as long as the relevant crime was committed when the applicant was under the age of 18.

d. (U) Confirm Existence of a Conviction: Before seeking to apply the minor exception for a criminal offense, you should first consider whether the offense may be a "juvenile delinquency" per 9 FAM 302.3-2(B)(8) and therefore not a conviction for U.S. immigration law purposes.

9 FAM 302.3-2(B)(8) (U) Juvenile Delinquency

(CT:VISA-1; 11-18-2015)

a. (U) Definition: The Federal Juvenile Delinquency Act (FJDA) defines a juvenile as a person who has not attained his 18th birthday and defines juvenile delinquency as the violation of a law of the United States committed by a person prior to his or her 18th birthday which might have been considered a crime if committed by an adult.

b. (U) Using U.S. Standards: A foreign conviction based on conduct which constitutes an act of juvenile delinquency under U.S. standards, however treated by the foreign court, is not a conviction for a crime for the purpose of INA and, accordingly, may not serve as the basis for a finding of inadmissibility under INA 212(a)(2)(A)(i)(I).

c. (U) Controlling Legislation: The standards embodied in the Federal Juvenile Delinquency Act (FJDA), as amended, govern whether an offense is considered a delinquency or a crime by U.S. standards. The FJDA, set forth in 18 U.S.C 5031, was amended by the Juvenile Justice and Delinquency Prevention Act of 1974 (Public Law 93-415) and the Comprehensive Crime Control Act of 1984 (Public Law 98-473).

d. (U) Two Classes Of Juvenile Delinquents: The Federal Juvenile Delinquency Act (FJDA) differentiates between two classes of juvenile delinquents. Therefore, each must be analyzed differently for the purposes of INA 212(a)(2)(A)(i)(I).

(1) (U) Under Age 15: Juveniles, who were under the age of 15 at the time of commission of acts constituting a delinquency, are not to be considered as having been convicted of a crime. Therefore, no alien may be found inadmissible under INA 212(a)(2)(A)(i)(I) by reason of any offense committed prior to the aliens 15th birthday.

(2) (U) Between Ages 15 and 18: Juveniles between the ages of 15 and 18 at the time of commission of an offense will not be considered to have committed a crime, and thus be inadmissible under INA 212(a)(2)(A)(i)(I), unless tried and convicted as an adult for a felony involving violence. A felony is defined in 18 U.S.C. 3559(a) or 18 U.S.C 3156(a) as an offense punishable by death or imprisonment for a term exceeding one year. A crime of violence is defined in 18 U.S.C 16 as:

(a) (U) An offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another; or

(b) (U) Any offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

e. (U) Juveniles Demonstrating Patterns Of Criminal Behavior: Any case in which an aliens misconduct as a juvenile over a period of time has demonstrated a pattern of criminal behavior must be brought to the attention of the examining physician for a possible finding of inadmissibility under INA 212(a)(1).

9 FAM 302.3-2(B)(9) (U) Political Offenses

(CT:VISA-239; 10-28-2016)

a. (U) 22 CFR 40.21(a) states that the term political offenses includes offenses that resulted in convictions obviously based on fabricated charges or predicated upon repressive measures against racial, religious, or political minorities. This regulation incorporates language from the legislative history of the 1952 Act, and therefore reflects to some extent the original Congressional intent in adopting the political offense exemption. Based on this regulation, most political offense exemptions will involve cases where you determined that the alien was not guilty of the charges but was wrongly prosecuted because of political repression against racial, religious, or political minorities.

b. (U) The imposition of a cruel or unusual punishment, or of a punishment which is clearly disproportionate to the offense, can also be relevant to this consideration when there is evidence that the applicant was innocent of the charges. Absent evidence of political motivation for a wrongful prosecution, you cannot look behind a conviction to determine whether the applicant was guilty of the offense for purposes of determining INA 212(a)(2)(A)(i)(I) inadmissibility, although evidence of a wrongful conviction can be relevant to waiver considerations. The mere fact that an alien is or was a member of a racial, religious, or political minority shall not be considered as sufficient in itself to warrant a conclusion that the crime for which the alien was convicted was purely a political offense.

c. (U) It has been generally considered that, in the extradition context, the crimes of espionage, treason and sedition are pure political offenses. Convictions for these crimes will generally be eligible for the political offense exemption.

d. (U) You may request CA/VO/L/A to make a determination where there is any indication that the offense for which the alien was convicted was of a political nature, or prosecution and therefore was politically motivated.

e. (U) Many offenses that are political in nature do not involve moral turpitude. If the offense does not involve moral turpitude or the provisions of INA 212(a)(2)(B) (multiple criminal convictions), the applicant is not ineligible and it is not necessary to determine whether the offense is political in nature. Moreover, the Board of Immigration Appeals has determined that convictions for crimes that are not crimes in the United States will not be recognized for U.S. immigration purposes. Therefore, many offenses with political implications such as illegal political campaigning or labor organizing will not result in immigration consequences because they do not constitute crimes in the United States.

9 FAM 302.3-2(B)(10) (U) Convicted War Criminals

(CT:VISA-239; 10-28-2016)

(U) See 9 FAM 302.7-4(B)(4) and 302.7-4(B)(1) for cases of persons convicted of war crimes.

9 FAM 302.3-2(C) (U) Advisory Opinions

(CT:VISA-239; 10-28-2016)

a. (U) In General: When an advisory opinion is required and the case involves a criminal conviction, you must submit a complete report to CA/VO/L/A, together with certified copies of the items listed below:

(1) Unavailable

(2) Unavailable

(3) Unavailable

(4) Unavailable

(5) Unavailable

b. Unavailable

9 FAM 302.3-2(D) (U) Waiver

9 FAM 302.3-2(D)(1) (U) Waivers for Immigrants

(CT:VISA-239; 10-28-2016)

a. (U) Principal Alien: An immigrant alien who is inadmissible under INA 212(a)(2)(A)(i)(I) is eligible to apply for a waiver of inadmissibility under INA 212(h) if it is established to the satisfaction of the Secretary of Homeland Security (DHS) that:

(1) (U) The activities for which the alien is inadmissible occurred more than 15 years before the date of the aliens application for a visa for admission, or adjustment of status; the aliens admission to the United States would not be contrary to the national welfare, safety, or security, and the alien has been rehabilitated; or

(2) (U) In certain cases involving close relatives (see 9 FAM 302.3-2(D)(1) paragraph b); or

(3) (U) If the alien is a Violence Against Womens Act (VAWA) self-petitioner.

b. (U) Certain Relatives Of U.S. Citizens Or Legal Permanent Residents (LPRs): An alien immigrant who is the spouse, parent, son, or daughter of a U.S. citizen or an alien lawfully admitted for permanent residence in the United States may apply for a waiver under INA 212(h) (see also 9 FAM 302.3-2(D)(1)) if:

(1) (U) It is established of the Secretary of Homeland Securitys (DHS) satisfaction that the aliens denial of admission would result in extreme hardship to the U.S. citizen or lawfully resident spouse, parent, son, or daughter; and

(2) (U) The Secretary of Homeland Security (DHS) has consented to the aliens applying or reapplying for a visa for admission or adjustment of status to the United States.

c. (U) Evidence Of Eligibility To Apply For A Waiver: When the court records or statutes leave doubt concerning an aliens eligibility for a waiver, you must ensure that you have obtained complete records and copies of all relevant portions of the statute under which the conviction was obtained are assembled, as well as any available commentary by authorities, prior judicial holdings and the like. The post must forward these documents to DHS together with the waiver application. (See 9 FAM 302.3-2(D)(1) for waiver procedures.) Because DHS has exclusive authority for approving 212(h) waivers, any question concerning waiver eligibility must be submitted to DHS for resolution.

d. (U) Procedures:

(1) (U) Making Waiver Request Directly to Department of Homeland Security: INA 212(h) waiver applications are submitted directly to DHS without the Departments favorable recommendation or joint action. Applicants files their Form I-601 with USCIS per USCIS Form I-601 instructions. To ensure that the original finding of ineligibility is fully in accord with both law and regulations, you must carefully review cases of aliens who have been found inadmissible under INA 212(a)(2)(A)(i)(I), (B), (D), or (E) who intend to apply for relief under INA 212(h).

(2) (U) Form I-601, Application for Waiver of Grounds of Inadmissibility: You must interview the alien and the aliens spouse or other qualifying relatives, if appropriate, and make every effort to identify all grounds of ineligibility at the time of the formal refusal of the visa. Clearly describe applicable grounds of refusal in the case notes. If the applicant's ineligibilities can be waived, inform the applicant of Form I-601, Application for Waiver of Grounds of Inadmissibility.

(3) (U) Executing Form I-601: Post should not assist applicants with completing Form I-601. Applicants should file their Form I-601 with USCIS according to the USCIS instructions. Instruct the applicant to direct all Form I-601 inquiries to USCIS.

(4) (U) When a waiver is granted by USCIS, DHS will notify the consular office via an encrypted spreadsheet upon its receipt:

(a) (U) Note the waiver decision in the case notes with the following standard case note:

Per USCIS/NSC notification received (date), (grounds of ineligibility) waived for (NVC case number). Spreadsheet POST_DD_MM_YYYY_HR_MIN.csv

(b) (U) Make a notation regarding the waiver on the Online IV Application Report for the applicant's Form DS-260, Online Application for Immigrant Visa and Alien Registration using the Add Remarks button at the top of the report and attach the notification to the other supporting documents contained in the packet

(c) (U) Consular sections will not receive a physical copy of the approved waiver of inadmissibility form from USCIS. There is no need to scan a record of approval into the case. CBP officers may verify the waiver of inadmissibility decision through DHSs system Computer Linked Application Information Management System (CLAIMS) as necessary as part of the inspections process.

(5) (U) Validity of Waivers: DHS regulations at 8 CFR 212.7(a)(4) provide that a waiver granted under INA 212(h) must apply only to those grounds of inadmissibility and to those crimes, events or incidents specified in the application for a waiver. Once granted, the waiver must be valid indefinitely, even if the recipient of the waiver later abandons or otherwise loses lawful permanent resident (LPR) status. However, a waiver granted to an alien who obtains LPR on a conditional basis under INA 216 must automatically terminate concurrently with the termination of such residence pursuant to the provisions of INA 216. A waiver granted under INA 212(g), INA 212(h) or INA 212(i) must apply only to those grounds of inadmissibility and to those crimes, events or incidents specified in the application for a waiver. A new or replacement visa may be issued to an alien who was previously granted such a waiver.

(6) (U) Waiver for Alien Fianc(e)s of Armed Forces Personnel: When an alien fianc(e) of a member of the Armed Forces has been found inadmissible and it appears that the benefits of INA 212(h) might be available once the marriage has taken place, you must explain the applicable section to the military officer from whom permission to marry is being sought. You must also inform the authorizing officer that DHS does not make advance determinations regarding the granting of a waiver.

(7) (U) Authority for Issuing Waivers is Discretionary: The authority exercised by DHS under INA 212(h) is discretionary. In cases where an eligible alien insists upon preceding an ineligible relative to the United States, you must ask the alien to sign a statement that he or she has been informed that an exercise of DHSs discretionary authority cannot be guaranteed. (See 9 FAM 504.9-5.) You must not take the initiative in suggesting the separation of a family in order to place the ineligible alien in a position to apply for a waiver of the grounds of inadmissibility.

9 FAM 302.3-2(D)(2) (U) Waivers for Nonimmigrants

(CT:VISA-1; 11-18-2015)

(U) For those who do not fall under the exceptions to inadmissibility listed in 9 FAM 302.3-2(B)(8) INA 212(d)(3)(A) waivers are available. You should consider the following factors, among others, when deciding whether to recommend a waiver:

(1) (U) The recency and seriousness of the activity or condition causing the alien's inadmissibility;

(2) (U) The reasons for the proposed travel to the United States;

(3) (U) The positive or negative effect, if any, of the planned travel on U.S. public interests.

9 FAM 302.3-2(E) Unavailable

9 FAM 302.3-2(E)(1) Unavailable

(CT:VISA-239; 10-28-2016)

Unavailable

9 FAM 302.2-2(E)(2) Unavailable

(CT:VISA-239; 10-28-2016)

Unavailable

9 FAM 302.3-3 (U) Crimes Involving Controlled Substance Violations - INA 212(a)(2)(A)(i)(II)

9 FAM 302.3-3(A) (U) Grounds

(CT:VISA-239; 10-28-2016)

(U) INA Section 212(a)(2)(A)(i)(II) renders ineligible any alien with past convictions for (or who admits to) violations of, or conspiracy to violate, any law of a state, the United States, or a foreign country relating to a controlled substance, as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802). Note that whether or not a controlled substance is legal under a state law is not relevant to its illegality under federal law.

9 FAM 302.3-3(B) (U) Application

(CT:VISA-239; 10-28-2016)

(U) For guidance on how to apply INA Section 212(a)(2)(A)(i)(II) see 9 FAM 302.4-2.

9 FAM 302.3-4 (U) Multiple Criminal Convictions - INA 212(a)(2)(B)

9 FAM 302.3-4(A) (U) Grounds

(CT:VISA-239; 10-28-2016)

(U) INA 212(a)(2)(B) provides that any alien convicted of two or more offenses (other than purely political offenses), regardless of whether the conviction was in a single trial or whether the offenses arose from a single scheme of misconduct and regardless of whether the offenses involved moral turpitude, for which the aggregate sentences to confinement were five years or more is inadmissible

9 FAM 302.3-4(B) (U) Application

9 FAM 302.3-4(B)(1) (U) Cases Involving Both INA 212(a)(2)(A)(i) and (2)(B)

(CT:VISA-239; 10-28-2016)

(U) A case may arise in which the pertinent court records indicate that the alien had been convicted and sentenced to imprisonment for four years for committing rape, a crime involving moral turpitude, and that the alien had also been convicted and sentenced to imprisonment for one year for drunkenness, a crime not involving moral turpitude. In such a case, the alien would be inadmissible under INA 212(a)(2)(A)(i) and (2)(B).

9 FAM 302.3-4(B)(2) (U) Effects of Suspended Sentence, Foreign Pardon, or Amnesty Decree

(CT:VISA-239; 10-28-2016)

a. (U) A sentence to confinement, the execution of which has been suspended by a court of competent jurisdiction, is still considered to have been actually imposed within the meaning of INA 212(a)(2)(B) (Matter of Castro, 19 I&N 692). Hence, if an alien has been convicted of committing two or more offenses for which the aggregate sentences to confinement were five years or more, but the court suspended the execution of the sentence in whole or in part so as to reduce the actual term of confinement to less than 5 years, the case would still come within the purview of INA 212(a)(2)(B).

b. (U) If a court of competent jurisdiction suspends the imposition of sentence, (i.e., chooses some other form of punishment, such as probation or community service), any period of confinement proscribed by law for the crime in question for which the applicant was convicted is not within the meaning of INA 212(a)(2)(B) since it was never actually imposed.

c. (U) A further distinction must be made between a sentence suspended by the court and, on the other hand, a pardon or general amnesty. An alien who has been convicted of two or more offenses for which the aggregate sentences to confinement were five years or more but which are later extinguished by reason of the granting of an unconditional foreign pardon or amnesty decree of any kind, whether granted at the conclusion of the original trial, in appellate proceedings, or in any other type of proceedings, would be inadmissible under INA 212(a)(2)(B). The fact that the beneficiary of such a pardon or decree was relieved in whole or in part from serving a sentence to confinement would not alter the fact that such a sentence would be compatible in determining the aggregate sentences to confinement actually imposed.

9 FAM 302.3-4(B)(3) (U) Effect of One Conviction for Two or More Offenses

(CT:VISA-239; 10-28-2016)

(U) In view of the specific language of INA 212(a)(2)(B), it is not necessary to establish that an alien has been convicted on two separate and distinct occasions in order to sustain a finding of inadmissibility thereunder. For example, a record of conviction showed that an alien had been convicted on four separate and distinct counts of violating the following sections of the Internal Revenue laws (1934 Edition): Section 1162 (Registry of Stills); Section 1170 (Premises Prohibited for Distilling); Section 1184 (Distilling Without Posting Bond); and Section 1185 (Distilling Mash). A sentence to imprisonment of two years was imposed on each count in the indictment or a total of eight years. Although there was only one conviction, and although the offenses were predicated on a single scheme of misconduct, the fact that there was a series of criminal acts would require a finding of inadmissibility under the provisions of INA 212(a)(2)(B).

9 FAM 302.3-4(B)(4) (U) Political Offenses

(CT:VISA-239; 10-28-2016)

(U) In connection with the term purely political offenses as used in INA 212(a)(2)(B), see 9 FAM 302.3-2(B)(9). Requests for advisory opinions should be submitted in accordance with 9 FAM 302.3-2(C).

9 FAM 302.3-4(B)(5) (U) Two Classes of Juvenile Delinquents

(CT:VISA-239; 10-28-2016)

(U) The controlling law differentiates between two classes of juvenile delinquents: those under the age of fifteen at the time of commission of the acts underlying their delinquency, and those between the ages of fifteen and eighteen at the time of commission of the underlying offense.

(1) (U) A juvenile whose offense was perpetrated before the aliens fifteenth birthday cannot be held inadmissible under INA 212(a)(2)(B) by reason of the offense, regardless of the nature of the offense, the type of court which heard the case, or whether the alien was treated as a juvenile or as an adult.

(2) (U) A juvenile whose offense was perpetrated between the ages of fifteen and eighteen will be subject to the provisions of INA 212(a)(2)(B) if the:

(a) (U) Alien was tried and convicted as an adult; and

(b) (U) Alien was convicted of a violent felony as defined in sections 18 U.S.C. 3559(a), 18 U.S.C. 3156(a), and of 18 U.S.C. 16 (Title 18 of the United State Code Section 16). (See 9 FAM 302.3-2(B)(8).)

(3) (U) Juvenile delinquency is not a crime and may not serve as the basis for a finding of INA 212(a)(2)(B) inadmissibility. (See 9 FAM 302.3-2(B)(8).)

9 FAM 302.3-4(C) (U) Advisory Opinions

(CT:VISA-239; 10-28-2016)

(U) An AO is not required for a potential INA 212(a)(2)(B) ineligibility; however, if you have a question about the interpretation or application of law or regulation, you may request an AO from CA/VO/L/A.

9 FAM 302.3-4(D) (U) Waiver

9 FAM 302.3-4(D)(1) (U) Waivers for Immigrants

(CT:VISA-239; 10-28-2016)

(U) An immigrant visa applicant who is found inadmissible under INA 212(a)(2)(B) and is the spouse, parent, son, or daughter of a U.S. citizen or of a lawful resident alien may seek a waiver of inadmissibility under INA 212(h). (See 9 FAM 302.3-2(D)(1) for detailed waiver information and procedures.)

9 FAM 302.3-4(D)(2) (U) Waivers for Nonimmigrants

(CT:VISA-239; 10-28-2016)

(U) An INA 212(d)(3)(A) waiver is available for a nonimmigrant visa applicant who is found inadmissible under INA 212(a)(2)(B). You should consider the following factors, among others, when deciding whether to recommend a waiver:

(1) (U) The recency and seriousness of the activity or condition causing the alien's inadmissibility;

(2) (U) The reasons for the proposed travel to the United States;

(3) (U) The positive or negative effect, if any, of the planned travel on U.S. public interests.

9 FAM 302.3-4(E) Unavailable

9 FAM 302.3-4(E)(1) Unavailable

(CT:VISA-239; 10-28-2016)

Unavailable

9 FAM 302.2-4(E)(2) Unavailable

(CT:VISA-239; 10-28-2016)

Unavailable

9 FAM 302.3-5 (U) Controlled Substance Trafficking - INA 212(a)(2)(C)

9 FAM 302.3-5(A) (U) Grounds

(CT:VISA-239; 10-28-2016)

(U) INA Section 212(a)(2)(C) renders ineligible any alien whom you know or have reason to believe is or has been an illicit trafficker in any controlled substances, or who assisted, conspired, or colluded with others in the illicit trafficking in any controlled substance or chemical, or any endeavored to do so. This ineligibility also applies to the spouse, son, and daughter of the trafficker if they obtained any financial or other benefit from the illicit activity within the past five years.

9 FAM 302.3-5(B) (U) Application

(CT:VISA-239; 10-28-2016)

(U) For guidance on how to apply INA 212(a)(2)(A)(i)(II), see 9FAM 302.4-2.

9 FAM 302.3-6 (U) Prostitution and Commercialized Vice - INA 212(a)(2)(D)

9 FAM 302.3-6(A) (U) Grounds

(CT:VISA-239; 10-28-2016)

(U) INA 212(a)(2)(D) provides three separate sections for a visa ineligibility for prostitution and commercialized vice. Each of the three sections is explained at 9 FAM 302.3-6(A)(1)-(3).

9 FAM 302.3-6(A)(1) (U) Prostitution - INA 212(a)(2)(D)(i)

(CT:VISA-239; 10-28-2016)

(U) INA 212(a)(2)(D)(i) renders ineligible any alien who is coming to the United States to engage in prostitution, or has engaged in prostitution within 10 years of the date of application for a visa, admission, or adjustment of status

9 FAM 302.3-6(A)(2) (U) Procuring Prostitution - INA 212(a)(2)(D)(ii)

(CT:VISA-239; 10-28-2016)

(U) INA 212(a)(2)(D)(ii) renders ineligible any alien who directly or indirectly procures or attempts to procure, or (within 10 years of the date of application for visa, admission, or adjustment of status procured or attempted to procure or to import, prostitutes or persons for the purpose of prostitution, or receives or (within such 10-year period) received, in whole or in part, the proceeds of prostitution

9 FAM 302.3-6(A)(3) (U) Commercialized Vice - INA 212(a)(2)(D)(iii)

(CT:VISA-239; 10-28-2016)

(U) INA 212(a)(2)(D)(iii) renders ineligible any alien who is coming to the United States to engage in any other unlawful commercialized vice, whether or not related to prostitution.

9 FAM 302.3-6(B) (U) Application

9 FAM 302.3-6(B)(1) (U) Definition of Prostitution

(CT:VISA-239; 10-28-2016)

(U) Prostitution means engaging in promiscuous sexual intercourse for hire. A conviction is not necessary for a finding that an applicant engaged in prostitution. However, a finding that someone has engaged in prostitution must be based a regular pattern of prostitution for financial gain not casual or isolated acts. An individual can be found inadmissible under INA 212(a)(2)(D)(i) for engaging in prostitution, in a jurisdiction where prostitution is not illegal, so long as it involves is a regular pattern of prostitution for financial gain. INA 212(a)(2)(D)(i) would not apply to a John or someone who hired a prostitute.

9 FAM 302.3-6(B)(2) (U) Conviction Under Statute Defining Prostitution

(CT:VISA-239; 10-28-2016)

(U) A conviction under a statute which precisely defines prostitution will not render an alien inadmissible under INA 212(a)(2)(D) unless the record of conviction shows or it is otherwise reasonably established that the alien had engaged in prostitution. On the other hand, such a conviction would bring the alien within the purview of INA 212(a)(2)(A)(i)(I) (because prostitution is a crime of moral turpitude) unless the sentencing clause is applicable. The sentencing clause would not be applicable if the record showed or the consular officer would be justified in concluding on the basis of an admission by the alien or other evidence that the alien had committed another act of prostitution or other act involving moral turpitude.

9 FAM 302.3-6(B)(3) (U) Convictions Under Broad Statute Encompassing Several Crimes

(CT:VISA-239; 10-28-2016)

(U) A person might be convicted under a statute so broad in content as to encompass within it, for example, the crimes of vagrancy, disorderly conduct, loitering for the purpose of prostitution. Such a conviction would generally not involve moral turpitude within the meaning of INA 212(a)(2)(A)(i)(I) because of the divisibility of the pertinent statute. However, the evidence of record might be such as to prompt you to question the alien along lines that would make possible a determination of the applicability of INA 212(a)(2)(D) to the case.

9 FAM 302.3-6(B)(4) (U) Definition of the term Procure Prostitution

(CT:VISA-239; 10-28-2016)

(U) INA 212(a)(2)(D)(ii) would not apply to a single act of soliciting prostitution. The Board of Immigration appeals has noted that Congress chose the term procure prostitution not solicit prostitution in INA 212(a)(2)(D)(ii). A person who procures prostitution would be a person who receives money to obtain a prostitute for another person.

9 FAM 302.3-6(B)(5) (U) Definition of Unlawful Commercialized Vice

(CT:VISA-239; 10-28-2016)

(U) Commercialized vice would apply to activity connected to a moral failing, which the Board of Immigration Appeals has said can be prostitution, gambling and addiction to narcotics. It would not apply to loan sharking, and other forms of commercial extortion.

9 FAM 302.3-6(B)(6) (U) 10 Year Statute of Limitation

(CT:VISA-239; 10-28-2016)

(U) If the nonimmigrant or immigrant visa applicant has not engaged in prostitution or has not attempted to procure or has not procured persons for prostitution or has not received proceeds from prostitution, within ten years preceding the date of application for a visa, entry, or adjustment of status, the provisions of INA 212(a)(2)(D) do not apply. It should be noted that INA 212(a)(2)(D)(iii) does not extend the ten year statute of limitations to aliens who have engaged in other unlawful commercialized vice whether or not related to prostitution.

9 FAM 302.3-6(C) (U) Advisory Opinions

(CT:VISA-239; 10-28-2016)

(U) An AO is not required for a potential INA 212(a)(2)(D) ineligibility; however, if you have a question about the interpretation or application of law or regulation, you may request an AO from CA/VO/L/A.

9 FAM 302.3-6(D) (U) Waiver

9 FAM 302.3-6(D)(1) (U) Waivers for Immigrants

(CT:VISA-239; 10-28-2016)

(U) An alien who is inadmissible under INA 212(a)(2)(D) and is the spouse, parent, son, or daughter of a U.S. citizen or of a permanent resident alien is eligible under INA 212(h) to apply for a waiver of inadmissibility. (See 9 FAM 302.3-2(C) for detailed waiver information and procedures.)

9 FAM 302.3-6(D)(2) (U) Waivers for Nonimmigrants

(CT:VISA-239; 10-28-2016)

(U) An INA 212(d)(3)(A) waiver is available for an alien who is inadmissible under INA 212(a)(2)(D). You should consider the following factors, among others, when deciding whether to recommend a waiver:

(1) (U) The recency and seriousness of the activity or condition causing the alien's inadmissibility;

(2) (U) The reasons for the proposed travel to the United States;

(3) (U) The positive or negative effect, if any, of the planned travel on U.S. public interests.

9 FAM 302.3-6(E) Unavailable

9 FAM 302.3-6(E)(1) Unavailable

(CT:VISA-239; 10-28-2016)

Unavailable

9 FAM 302.2-6(E)(2) Unavailable

(CT:VISA-239; 10-28-2016)

Unavailable

9 FAM 302.3-7 (U) Criminal Activity Where Immunity Asserted - INA 212(a)(2)(E)

9 FAM 302.3-7(A) (U) Grounds

(CT:VISA-239; 10-28-2016)

(U) An alien is ineligible under INA 212(a)(2)(E) who has committed in the United States at any time a serious criminal offense (as defined in INA 101(h)), for whom immunity from criminal jurisdiction was exercised with respect to that offense, who as a consequence of the offense and exercise of immunity has departed from the United States, and who has not subsequently submitted fully to the jurisdiction of the court in the United States having jurisdiction with respect to that offense

9 FAM 302.3-7(B) (U) Application

(CT:VISA-239; 10-28-2016)

(U) You may not issue a visa to an individual who has previously asserted immunity to avoid prosecution for a serious criminal offense in the United States. Applicants subject to INA 212(a)(2)(E) ineligibilities may apply for waivers of the ineligibility as authorized in INA 212(h). For the procedure, see 9 FAM 302.3-2(D)(1).

9 FAM 302.3-7(C) (U) Advisory Opinions

(CT:VISA-239; 10-28-2016)

(U) An AO is not required for a potential INA 212(a)(2)(E) ineligibility; however, if you have a question about the interpretation or application of law or regulation, you may request an AO from CA/VO/L/A.

9 FAM 302.3-7(D) (U) Waiver

9 FAM 302.3-7(D)(1) (U) Waivers for Immigrants

(CT:VISA-239; 10-28-2016)

a. (U) General: An INA 212(h) waiver is available for immigrant visa applicant inadmissible under INA 212(a)(2)(E) if the activities for which the alien is inadmissible occurred more than 15 years before the date of the aliens application, the aliens admission to the United States would not be contrary to the national welfare, safety, or security, and the alien has been rehabilitated; for applicants with a close family relationship (spouse, parent, son, or daughter) to a U.S. citizen or LPR, if, in the opinion of DHS, refusing the waiver would result in extreme hardship to the U.S. citizen or LPR; or the alien is a VAWA self-petitioner.

b. (U) Limitation: No waiver is available if the alien has committed murder or criminal acts involving torture, or conspiracy to commit either murder or criminal acts involving torture.

9 FAM 302.3-7(D)(2) (U) Waivers for Nonimmigrants

(CT:VISA-239; 10-28-2016)

(U) An INA 212(d)(3)(A) waiver is available for a nonimmigrant visa inadmissible under INA 212(a)(2)(E). You should consider the following factors, among others, when deciding whether to recommend a waiver:

(1) (U) The recency and seriousness of the activity or condition causing the alien's inadmissibility;

(2) (U) The reasons for the proposed travel to the United States;

(3) (U) The positive or negative effect, if any, of the planned travel on U.S. public interests.

9 FAM 302.3-7(E) Unavailable

9 FAM 302.3-7(E)(1) Unavailable

(CT:VISA-239; 10-28-2016)

Unavailable

9 FAM 302.2-7(E)(2) Unavailable

(CT:VISA-239; 10-28-2016)

Unavailable

9 FAM 302.3-8 (U) Human Traffickers - INA 212(a)(2)(H)

9 FAM 302.3-8(A) (U) Grounds

(CT:VISA-239; 10-28-2016)

(U) Under INA 212(a)(2)(H), an alien is inadmissible if he or she:

(1) (U) Commits or conspires to commit a human trafficking offense inside or outside the United States;

(2) (U) Knowingly aided, abetted, assisted, conspired, or colluded with such a trafficker in severe forms of trafficking in persons (see 9 FAM 302.3-8(B)(1) below); or

(3) (U) Is the spouse, son, or daughter of an alien who has engaged in one of the above activities and has:

(a) (U) Received a financial or other benefit from the principal alien's illicit activity within the five years prior to the visa application date and,

(b) (U) Knew or reasonably should have known that the source of the benefit was illicit human trafficking activity.

9 FAM 302.3-8(B) (U) Application

9 FAM 302.3-8(B)(1) (U) Defining Severe Forms of Trafficking in Persons

(CT:VISA-239; 10-28-2016)

a. (U) An individual is inadmissible for having knowingly aided, abetted, assisted, conspired or colluded with a trafficker, only if the trafficker engaged in a "severe forms of trafficking in persons," which is defined in 22 U.S.C. 7102(8) as follows:

(1) (U) "Sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age;" or

(2) (U) "The recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery."

b. (U) "Sex trafficking" is defined at 22 U.S.C. 7102(9) as "the recruitment, harboring, transportation, provision, or obtaining of a person for the purpose of a commercial sex act."

9 FAM 302.3-8(B)(2) (U) Son or Daughter Benefiting from Trafficking

(CT:VISA-239; 10-28-2016)

(U) INA 212(a)(2)(H) does not apply to a son or daughter who was a child (unmarried, under 21) at the time he or she received the benefit.

9 FAM 302.3-8(B)(3) (U) A and G Visa Applicants

(CT:VISA-239; 10-28-2016)

(U) Applicants for A-1, A-2, G-1, G-2, G-3, and visas are not subject to this ground.

9 FAM 302.3-8(B)(4) Unavailable

(CT:VISA-239; 10-28-2016)

Unavailable

9 FAM 302.3-8(C) (U) Advisory Opinion

(CT:VISA-239; 10-28-2016)

a. (U) AO Required: If you suspect that an applicant is ineligible for a visa under this ground, you must request an Advisory Opinion (AO) from the Advisory Opinions Division in the Visa Office (CA/VO/L/A).

b. Unavailable

(1) Unavailable

(2) Unavailable

(3) Unavailable

(4) Unavailable

9 FAM 302.3-8(D) (U) Waiver

9 FAM 302.3-8(D)(1) (U) Waivers for Immigrants

(CT:VISA-239; 10-28-2016)

(U) There is no waiver available for immigrants found inadmissible under INA 212(a)(2)(H).

9 FAM 302.3-8(D)(2) (U) Waivers for Nonimmigrants

(CT:VISA-239; 10-28-2016)

(U) An INA 212(d)(3)(A) waiver is available for nonimmigrants found inadmissible under INA 212(a)(2)(H). You should consider the following factors, among others, when deciding whether to recommend a waiver:

(1) (U) The recency and seriousness of the activity or condition causing the alien's inadmissibility;

(2) (U) The reasons for the proposed travel to the United States;

(3) (U) The positive or negative effect, if any, of the planned travel on U.S. public interests.

9 FAM 302.3-8(E) Unavailable

9 FAM 302.3-8(E)(1) Unavailable

(CT:VISA-239; 10-28-2016)

Unavailable

9 FAM 302.2-8(E)(2) Unavailable

(CT:VISA-239; 10-28-2016)

Unavailable

9 FAM 302.3-9 (U) MONEY LAUNDERING - INA 212(a)(2)(I)

9 FAM 302.3-9(A) (U) Grounds

(CT:VISA-239; 10-28-2016)

(U) INA 212(a)(2)(I) provides that an alien is inadmissible, and thus ineligible for a visa, if there is reason to believe the alien has engaged, is engaging, or seeks to enter the United States to engage in, money laundering, as defined in 18 U.S.C. 1956 or 18 U.S.C. 1957. It also provides that any alien who you or the Attorney General knows is, or has been, a knowing aider, abettor, assistor, conspirator, or colluder with money launderers is inadmissible.

9 FAM 302.3-9(B) (U) Application

9 FAM 302.3-9(B)(1) (U) In General

(CT:VISA-239; 10-28-2016)

(U) In order to apply this ineligibility, you must articulate specific facts, relevant to the elements of the crime of money laundering as defined in 18 U.S.C. 1956 or 18 U.S.C. 1957 . These facts must provide a basis for reason to believe as described in 9 FAM 302.4-3(B)(3).

9 FAM 302.3-9(B)(2) (U) Money Laundering Watchlist

(CT:VISA-239; 10-28-2016)

a. (U) The USA Patriot Act (10/26/01) also requires the Secretary of State in cooperation with the Attorney General, the Secretary of Treasury, and the Director of the Central Intelligence Agency, to develop within 90 days of enactment, and thereafter, continually implement, update, and certify to the Congress a MONEY LAUNDERING WATCHLIST which identifies individuals worldwide who are known or suspected of money laundering.

b. (U) The WatchList must be readily accessible to, and must be checked by you or other Federal official prior to issuance of a visa or admission of an alien to the United States. Pursuant to this requirement, relevant Washington, DC agencies are providing names of known and suspected money launderers to the Department for addition into the CLASS database under the appropriate code (ordinarily 00). (These entries will be in addition to CLASS entries made at the post level by consular personnel. (See 9 FAM 302.3-7(B)(3) below.)

9 FAM 302.3-9(B)(3) Unavailable

(CT:VISA-239; 10-28-2016)

a. Unavailable

(1) Unavailable

(2) Unavailable

b. Unavailable

9 FAM 302.3-9(C) (U) Advisory Opinions

(CT:VISA-239; 10-28-2016)

a. (U) Advisory Opinion Mandatory:

(1) (U) The two Federal money laundering statutes on which INA 212(a)(2)(I) is based are complex and incorporate, by reference, a large number of other criminal statutes. Properly applying INA 212(a)(2)(I), therefore, requires a good understanding of the underlying criminal statutes, which may in some instances be outside the expertise of the adjudicating consular officer. In addition, the exact scope of INA 212(a)(2)(I) (and, in particular, its applicability to activities that occur solely outside the United States) is still being examined. For these reasons, posts must submit all cases involving potential INA 212(a)(2)(I) ineligibilities to the Advisory Opinion Division, CA/VO/L/A, for an advisory opinion.

(2) (U) The mandatory advisory opinion requirement is applicable when an alien applies for a visa or when post becomes aware of a potentially inadmissible alien who currently holds a valid visa, so long as the post believes that the alien may have engaged in, or may intend to engage in, money laundering activity. Any case that appears to involve criminal activity of the type described in 18 U.S.C. 1956 or 18 U.S.C. 1957 should be referred to CA/VO/L/A, regardless of where the activity took place or whether there was any apparent United States nexus to the activity.

b. Unavailable

9 FAM 302.3-9(D) (U) Waiver

9 FAM 302.3-9(D)(1) (U) Waivers for Immigrants

(CT:VISA-239; 10-28-2016)

(U) There is no waiver available for immigrants found inadmissible under INA 212(a)(2)(I).

9 FAM 302.3-9(D)(2) (U) Waivers for Nonimmigrants

(CT:VISA-239; 10-28-2016)

An INA 212(d)(3)(A) waiver is available for nonimmigrants found inadmissible under INA 212(a)(2)(I). You should consider the following factors, among others, when deciding whether to recommend a waiver:

(1) (U) The recency and seriousness of the activity or condition causing the alien's inadmissibility;

(2) (U) The reasons for the proposed travel to the United States;

(3) (U) The positive or negative effect, if any, of the planned travel on U.S. public interests.

9 FAM 302.3-9(E) Unavailable

9 FAM 302.3-9(E)(1) Unavailable

(CT:VISA-239; 10-28-2016)

Unavailable

9 FAM 302.2-9(E)(2) Unavailable

(CT:VISA-239; 10-28-2016)

Unavailable