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The Definition of "Conviction" for Immigration Purposes

Posted by attorney Jeffrey Joseph

The Definition of "Conviction" for Immigration Purposes

Winter 2011

Jeff Joseph

1)Convictions under the INA. INA § 101(a)(48)(A); 8 U.S.C. § 1101(a)(48)(A).

2)Definition of Conviction:

a) For purposes of immigration law,a conviction is defined as the following:

i)[A] formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where—

ii) A judge or jury has found the alien guilty or the alien has entered a plea of nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and

iii) The judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.

iv) Any reference to a term of imprisonment of a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.

b) The controlling factor in finding a conviction under the immigration law is an admission of the essential elements of the offense charged,followed by some form of restraint on the defendant’s liberty.

i) Probation counts as a restraint of liberty.

3)Deferred judgments

a) Deferred judgments are considered convictions if the person has to plead guilty to receive the deferred judgment. Matter of Chairez-Castaneda, 21 I&N Dec. 44 (BIA 1995).

4)Deferred Prosecutions

a) Deferred Prosecutions are likely not considered to be a conviction for immigration purposes because the non-citizen defendant never admits guilt unless the deferred prosecution is violated. Matter of Grulon, 20 I&N Dec. 12 (BIA 1989).

5)Juvenile Adjudications

a) Juvenile adjudications are not convictions for purposes of immigration law if the would qualify as juvenile adjudications under the Federal Juvenile Delinquency Act. Matter of Ramirez-Rivero, 18 I&N Dec. 135 (BIA 1981); Matter of Devison, 22 I&N Dec. 1362 (BIA 2000).

b) However,if the juvenile commits more than one offense,then the person can be rendered inadmissible. U.S. State Department regulations specify that “[a]n 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 [for admission to the U.S.] even though the crimes were committed while the alien was under the age of 18 years." 22 C.F.R. § 40.21(a)(3).

c) Despite the fact that a juvenile adjudication does not render a non-citizen deportable,the same adjudication may be a discretionary factor that is used by the ICE or the Immigration Judge to deny any relief or benefits for which discretion is a factor. These include applications for permanent residency,relief from deportation and applications for citizenship.

6)Definition of Sentence Under INA§ 101(a)(48)(A); 8 U.S.C. § 1101(a)(48)(A)

a) A sentence that includes any reference to a term of imprisonment or a sentence is deemed to include the period of incarceration or confinement ordered by a court of law,regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.

b) Suspended sentences count in their entirety.

7) Withdrawals of Pleas and Reconsiderations of Sentence

a) In order to withdraw a plea or conviction for immigration purposes,you must show that the reason for the withdrawal is ineffective assistance of counsel,invalid waiver of counsel or some similar Constitutional issue or issue relating to legal invalidity of the criminal proceedings. A simple desire to avoid immigration consequences is insufficient to eradicate a prior plea. Matter of Pickering, 23 I&N Dec. 621 (BIA 2003).

b) However,a reduction in sentence need not be based on constitutional grounds in order to be valid for immigration purposes. Matter of Song, 23 I&N Dec. 173 (BIA 2001).

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