[Code of Federal Regulations]
[Title 22, Volume 1]
[Revised as of April 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 22CFR40.21]

[Page 164-165]
 
                       TITLE 22--FOREIGN RELATIONS
 
                     CHAPTER I--DEPARTMENT OF STATE
 
PART 40--REGULATIONS PERTAINING TO BOTH NONIMMIGRANTS AND IMMIGRANTS UNDER THE IMMIGRATION AND NATIONALITY ACT, AS AMENDED--Table of Contents
 
  Subpart C--Criminal and Related Grounds--Conviction of Certain Crimes
 
Sec. 40.21  Crimes involving moral turpitude and controlled substance violators.


    (a) Crimes involving moral turpitude-- (1) Acts must constitute a 
crime under criminal law of jurisdiction where they occurred. A Consular 
Officer may make a finding of ineligibility under INA 212(a)(2)(A)(i)(I) 
based upon an alien's admission of the commission of acts

[[Page 165]]

which constitute the essential elements of a crime involving moral 
turpitude, only if the acts constitute a crime under the criminal law of 
the jurisdiction where they occurred. However, a Consular Officer must 
base a determination that a crime involves moral turpitude upon the 
moral standards generally prevailing in the United States.
    (2) Conviction for crime committed under age 18. (i) An alien will 
not be ineligible to receive a visa under INA 212(a)(2)(A)(i)(I) by 
reason of any offense committed:
    (A) Prior to the alien's fifteenth birthday, or
    (B) Between the alien's fifteenth and eighteenth birthdays unless 
such alien was tried and convicted as an adult for a felony involving 
violence as defined in section 1(1) and section 16 of Title 18 of the 
United States Code.
    (ii) An alien tried and convicted as an adult for a violent felony 
offense, as so defined, committed after having attained the age of 
fifteen years, will be subject to the provisions of INA 
212(a)(2)(A)(i)(I) regardless of whether at the time of conviction 
juvenile courts existed within the convicting jurisdiction.
    (3) Two or more crimes committed under age 18. An alien convicted of 
a crime involving moral turpitude or admitting the commission of acts 
which constitute the essential elements of such a crime and who has 
committed an additional crime involving moral turpitude shall be 
ineligible under INA 212(a)(2)(A)(i)(I), even though the crimes were 
committed while the alien was under the age of 18 years.
    (4) Conviction in absentia. A conviction in absentia of a crime 
involving moral turpitude does not constitute a conviction within the 
meaning of INA 212(a)(2)(A)(i)(I).
    (5) Effect of pardon by appropriate U.S. authorities/foreign states. 
An alien shall not be considered ineligible under INA 212(a)(2)(A)(i)(I) 
by reason of a conviction of a crime involving moral turpitude for which 
a full and unconditional pardon has been granted by the President of the 
United States, by the Governor of a State of the United States, by the 
former High Commissioner for Germany acting pursuant to Executive Order 
10062, or by the United States Ambassador to the Federal Republic of 
Germany acting pursuant to Executive Order 10608. A legislative pardon 
or a pardon, amnesty, expungement of penal record or any other act of 
clemency granted by a foreign state shall not serve to remove a ground 
of ineligibility under INA 212(a)(2)(A)(i)(I).
    (6) Political offenses. The term ``purely political offense'', as 
used in INA 212(a)(2)(A)(i)(I), includes offenses that resulted in 
convictions obviously based on fabricated charges or predicated upon 
repressive measures against racial, religious, or political minorities.
    (7) Waiver of ineligibility--INA 212(h). If an immigrant visa 
applicant is ineligible under INA 212(a)(2)(A)(i)(I) but is qualified to 
seek the benefits of INA 212(h), the consular officer shall inform the 
alien of the procedure for applying to INS for relief under that 
provision of law. A visa may not be issued to the alien until the 
consular officer has received notification from INS of the approval of 
the alien's application under INA 212(h).
    (b) Controlled substance violators--(1) Date of conviction not 
pertinent. An alien shall be ineligible under INA 212(a)(2)(A)(i)(II) 
irrespective of whether the conviction for a violation of or for 
conspiracy to violate any law or regulation relating to a controlled 
substance, as defined in the Controlled Substance Act (21 U.S.C. 802), 
occurred before, on, or after October 27, 1986.
    (2) Waiver of ineligibility--INA 212(h). If an immigrant visa 
applicant is ineligible under INA 212(a)(2)(A)(i)(II) but is qualified 
to seek the benefits of INA 212(h), the consular officer shall inform 
the alien of the procedure for applying to INS for relief under that 
provision of law. A visa may not be issued to the alien until the 
consular officer has received notification from INS of the approval of 
the alien's application under INA 212(h).

[56 FR 30422, July 2, 1991, as amended at 64 FR 55418, Oct. 13, 1999]