To trigger deportation, a noncitizen must have been convicted of a criminal offense (or “crime”) falling within the aggravated felony definitions.  This requirement therefore has two parts: there must be a conviction,[3] and the conviction must be for a crime.

To trigger removal based on an aggravated felony, a “conviction” is required that falls within the boundaries of an aggravated felony category.  Any disposition in criminal court that does not constitute a conviction for immigration purposes will not trigger this ground of deportation.[4]

Only certain dispositions are considered to be “convictions” for immigration purposes.  Under INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A), a conviction includes a “formal judgment of guilt of the alien entered by a court,” and also other less formal dispositions.  A conviction can result from a verdict of guilty after court or jury trial, or, more commonly, after a plea of guilty or no contest.[5]  A conviction can also result from an admission in criminal court of sufficient facts to warrant a conviction.[6]  A state or federal conviction can trigger this ground.[7]  A finding of guilt followed by commitment to a state mental hospital is considered a conviction,[8] as is a finding of guilt followed by commitment to another institution or agency.[9] 

 

            Certain dispositions, however, are not considered “convictions” for immigration purposes and therefore have no immigration effect. 

 

            A major class of safe havens consists of dispositions of criminal cases that do not constitute convictions, under the immigration-law definition of “conviction.”  This class of safe havens includes the following:

[3] See N. Tooby, Aggravated Felonies § 3.4 (2003).

[4] INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A).

[5] Ahmed v. INS, 92 F.3d 1196 (10th Cir. 1996) (table); Giammario v. Hurney, 311 F.2d 285 (3d Cir. 1962) (where noncitizen pleaded guilty and was convicted of larceny in Australia, he was properly deported as a noncitizen excludable from admission based on conviction of crime of moral turpitude; noncitizen’s claim that he pleaded guilty only because a trial would have taken weeks or months was rejected, and the court refused to try anew the issue of noncitizen’s guilt). 

[6] INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A).

[7] Buffalino v. Irvine, 103 F.2d 830 (10th Cir. 1939); Ponzi v. Ward, 7 F.Supp. 736 (D. Mass. 1934); Matter of Alfonso-Bermudez, 12 I. & N. Dec. 225 (BIA 1967) (conviction under city ordinance, disorderly conduct).

[8] Matter of V, 7 I. & N. Dec. 242 (BIA 1956).

[9] Zabanazad v. Rosenberg, 306 F.2d 861 (9th Cir. 1962); Adams v. United States, 299 F.2d 327 (9th Cir. 1962); Matter of Garcia, 19 I. & N. Dec. 270 (BIA 1985); Matter of HV, 9 I. & N. Dec. 428 (BIA 1961); Matter of P, 8 I. & N. Dec. 517 (BIA 1960) (two convictions, commitment under Federal Youth Correction Act).

BIA

CONVICTION - NON-CONVICTION DISPOSITION - MASSACHUSETTS "CONTINUED WITHOUT A FINDING" DISPOSITION
A Massachusetts "continued without a finding" disposition, where there is no admission to sufficient facts, is not a conviction because the disposition does not satisfy the first prong of the conviction definition under INA 101(a)(48), which requires a plea of guilty, nolo or an admission to sufficient facts. In Matter of Grullon, 20 I. & N. Dec. 12 (BIA 1989), the Board held that a noncitizen placed in Florida's pre-trial intervention program did not have a conviction because there was no plea of any kind. If there is no plea or admission to sufficient facts, then a Massachusetts "continued without a finding" disposition is identical to pre-trial intervention, and does not constitute a conviction. Although there was no statute defining "conviction" in 1989, and a different test applied to when a disposition was a conviction, nothing in INA 101(a)(48) changes this outcome. Under Massachusetts criminal practice, no admission is required to obtain a Massachusetts "continued without a finding" disposition. Thanks to Dan Kesselbrenner.

First Circuit

CONVICTION - ADMISSION OF SUFFICIENT FACTS + PUNISHMENT
De Vega v. Gonzales, __ F.3d __, 2007 WL 2696489 (1st Cir. Sept. 17, 2007) (Massachusetts continuance of a criminal case based on an admission of facts sufficient for a finding of guilt and conditioned on payment of restitution constitutes a "conviction" under INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A) for immigration purposes, even though no actual finding of guilt had been made in this case).

Lower Courts of Second Circuit

AGGRAVATED FELONY - DATE OF CONVICTION
Puello v. BCIS, 418 F.Supp.2d 436 (S.D.N.Y. Dec. 13, 2005) (for purposes of applying the permanent bar to good moral character for conviction of an aggravated felony, under INA 101(f), the date of conviction is the date of sentencing or the date the judgment of conviction was filed with Clerk of Court, rather than on date the guilty plea was entered).

Eighth Circuit

ILLEGAL RE-ENTRY-CONVICTION - PROOF OF IDENTITY
United States v. Urbina-Mejia, 450 F.3d 838 (8th Cir. Jun. 20, 2006) (NCIC report, which verifies records based upon fingerprint matches, was sufficient to show by a preponderance of the evidence that defendant had previously been convicted of an aggravated felony offense for purposes of illegal re-entry sentence enhancement). http://caselaw.lp.findlaw.com/data2/circs/8th/054125p.pdf

Ninth Circuit

CONVICTION - PLEA - NOLO CONTENDERE PLEA - ALFORD PLEA - EFFECT
United States v. Guerrero-Velasquez, 434 F.3d 1193, 1194 (9th Cir. 2006) (a guilty plea is an admission of the facts charged in the indictment, and an Alford plea, in which the defendant enters a guilty plea while maintaining his innocence, is nevertheless a guilty plea under Taylor v. United States, 495 U.S. 575, 110 S. Ct. 2143, 109 L. Ed. 2d 607 (1990)).

Tenth Circuit

CONVICTION - FINALITY - ILLEGAL REENTRY CONTEXT
United States v. Saenz-Gomez, 472 F.3d 791 (10th Cir. Jan. 2, 2007) (rejecting claim that district court erred in enhancing sentence under 8 U.S.C. 1326(b)(2) and U.S.S.G. 2L1.2(b)(1)(B) because his 2003 state conviction for heroin trafficking was not final at the time of removal, and affirming sentence for illegal reentry after removal following a conviction for an aggravated felony). http://laws.lp.findlaw.com/10th/062148.html

Other

CONVICTION - NON-CONVICTION DISPOSITION - ADMISSION OF SUFFICIENT FACTS
    If a stipulation is entered allowing a police report or certificate of probable cause to be entered into the court record as part of plea proceedings, there is a risk that immigration courts might consider the facts contained in those documents to be part of the record of conviction for purposes of determining the existence and nature of a conviction. Sometimes, however, stipulating to the admissibility of a police report is not equivalent to admitting "facts sufficient to warrant a finding of guilt."

     An"immigration-safe" deferral scheme to consider, rather than admitting the police report into evidence at the time of the deferral, is one in which non-citizens agree to waive their right to object or contest any evidence presented at any subsequent violation or revocation hearing and agree that the judge will review the evidence presented at that time (which would be the police report) and make a decision as to guilt based solely on that evidence. Thus, it would be understood at the time that the deferral scheme is agreed upon by the parties that the prosecutor would later present the police report at a subsequent violation/revocation hearing if the defendant does not comply with the conditions of deferral. However, if the defendant complies with the conditions, the case is dismissed without any admissions by the defendant, and the police report will not have been entered into evidence for purposes of determining guilt. This would arguably avoid the offense being deemed a conviction for immigration purposes. The following language is suggested:

    I understand that I have a right to contest and object to evidence presented against me. I give up the right to contest and object to any evidence presented against me as to my guilt or innocence regarding the underlying charge at any future hearings if I fail to comply with the conditions of this agreement. I also understand that I have the right to present evidence on my own behalf. I give up the right to present evidence on my own behalf as to my guilt or innocence regarding the underlying charge. I understand that if I do not comply with the conditions of this agreement, evidence will be presented against me at a future hearing and I understand that the judge will read and review that evidence in determining my guilt or innocence.

Prosecutors sometimes accept this language. Thanks to Jonathan Moore.