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.