August 1, 2000

HOW TO AVOID A "CONVICTION" IN CRIMINAL COURT UNDER THE NEW IIRAIRA DEFINICTION.

In 1996, for the first time, Congress enacted a statutory definition of "conviction". There are a number of ways that criminal counsel can resolve criminal cases for immigrant defendants that do not constitute a conviction under this new definition. These are somewhat novel, but they are perfectly legal. Where prosecution and court are persuaded that permanent banishment from home and family is too harsh a consequence for a relatively minor criminal offense, it is important for criminal counsel to know how to construct a resolution of the case that will not be considered a conviction for immigration purposes.

It is also important for immigration counsel to understand that these dispositions do not constitute convictions for immigration purposes, and why, so they can (a) suggest them to criminal counsel as ways criminal counsel can avoid deportable outcomes in criminal cases, (b) recognize these dispositions when they see them, and (c) explain to the INS and immigration courts that these dispositions do not trigger removal or inadmissibility and why.

The new IIRAIRA definition of "conviction" provides:

The term "conviction" means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where -

1. judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and
   
   
2. the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed. ¹

Several techniques exist by which a noncitizen can avoid a conviction under this legislation.

1. Counsel can seek to have the criminal case transferred from a criminal court to a noncriminal court (e.g., juvenile court, where the defendant was under 18 years of age when the offense was committed), or prevent the transfer from juvenile to adult court, since a finding in juvenile court is not considered a criminal conviction.
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2. Counsel can agree with prosecution and court to defer one or more of the statutory elements required to constitute a "conviction" under the new immigration-law definition:
   
   
   1. "Deferred prosecution" or "deferred plea" involves an agreement to postpone the entry of a guilty or not contest plea in the criminal case for some length of time, for example, six months or a year, so that the plea is not entered until this time has passed. If the defendant has no new arrests, satisfactorily completes drug counseling, and meets whatever other conditions are stated as part of the agreement, then the charges will be dismissed at the end of the deferral period. This arrangement does not constitute a "conviction" under the new definition, since no plea of guilty or no contest has been entered at any point, the noncitizen has admitted no facts, and no one has found him or her guilty of any offense.
   
   
   
   2. "Deferred verdict" involves an agreement in which the defendant waives his or her right to confront witnesses and right to a jury trial, and agrees to submit the case to a court trial on the basis of certain papers such as the police report or preliminary hearing transcript. Under this agreement, the court would defer rendering a verdict until some length of time has passed, for example, six months or a year. If the defendant meets whatever conditions are stated in the agreement, suffers no new arrests, satisfactorily attends drug counseling, and the like, then the charges will be dismissed at the end of the deferral period. Again, this arrangement does not meet the new statutory definition of "conviction" since no one has found the noncitizen guilty, no plea of guilty or no contest has been entered at any point, and the defendant has not admitted any facts, much less sufficient facts to warrant a finding of guilty.
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   3. "Deferred sentence" involves entry of a plea of guilty or no contest, but deferral of sentence. In order to constitute a conviction, the new definition requires a plea of guilty or no contest, or a verdict of guilty, and also requires that "the judge has ordered some form of punishment, penalty or restraint on the alien's liberty to be imposed." ⁴ If the court defers making any such order imposing punishment or restraint on liberty, until after an agreed deferral period of time has passed, and then dismisses all charges, without ever imposing punishment or restraint, no "conviction" would have occurred at any time under the new definition. Note that any conditions of this arrangement that involve any "restraint on the alien's liberty" could not be imposed by court order; they may be included in a private agreement between prosecution and defense, however, as long as the court does not order them. When they have been satisfied, prosecution and defense could jointly move the court to dismiss all charges.
   
   
   
   3. Counsel can attempt to construct a disposition of the case that fits within a federal definition that is not considered a conviction.
   
   
   1. For example, if the state defendant obtains an "expungement" of the state conviction for successful completion of probation, under circumstances analogous to the Federal First Offender Act, ⁵ there is an Equal Protection argument that the expunged state conviction should receive the same treatment (Congress does not consider it a conviction for any purpose) that it would have received if a federal expungement had been granted in federal court. ⁶ Since this is a constitutional argument, Congress is not free to alter this result by legislation, so the federal courts should construe the new definition of conviction to harmonize with this result, give effect to both statutes, and consider that the state analogue to the federal expungement does not constitute a conviction under the new definition.
   
   
   
   2. Counsel can attempt to construct a disposition that could only be a juvenile disposition, if prosecuted in federal court. ⁷ The same Equal Protection argument can then be effective to force the INS to consider this arrangement not to be a conviction for immigration purposes. A uniform federal definition of conviction is necessary to avoid arbitrary results; the federal statutory scheme should therefore be used not only for federal outcomes, but also for analogous state outcomes.
   
   
   
   3. Counsel can attempt to analogize to expungement statutes in force in the District of Columbia, and make the same argument.

Any of these techniques should be effective to prevent a disposition from being considered a "conviction" for immigration purposes.

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¹ See 8 U.S.C. § 1101(a)(48)(A).

² Matter of Ramirez-Rivero, 18 I&N 135 (BIA 1981); Matter of C.M., 5 I&N 327 (BIA 1953) (juvenile finding of commission of crime involving moral turpitude does not constitute a "conviction" or trigger inadmissibility).

³ It is important to make sure the defendant himself or herself does not make any factual admissions. The defense attorney may stipulate the court can read and consider certain papers, but should not agree that any fact contained in those papers is true. It is for the court to make a finding as to whether to believe the facts stated in the reports or transcripts. Therefore, the defendant is not in fact admitting any facts, much less sufficient facts to warrant a finding of guilt.

⁴ 8 U.S.C. § 1101(a)(48)(A)(ii).

⁵18 U.S.C. § 3607.

⁶ Garberding v. INS, 30 F.3d 1187 (9th Cir. 1994).

⁷ See the Federal Juvenile Delinquency Act, 18 U.S.C. § 5031.