TEXAS - DEFERRED ADJUDICATION
A theft offense is only an aggravated felony (and therefore, a disqualification for cancellation), if the sentence imposed was at least one year. Under Texas law, where deferred adjudication is granted, no sentence is imposed. Therefore, crimes of violence, theft offenses, and other convictions for which a sentence imposed of one year is transforms the conviction into an aggravated felony, do not become aggravated felonies if the defendant received and successfully completed deferred adjudication without a violation since no sentence of one year or more has been imposed.
CONVICTION - JUVENILE DELINQUENCY CRIM DEF - DEFENSE OF JUVENILES
Under federal gang legislation, Congress defined "conviction" to include "a finding, under State or Federal law, that a person has committed an act of juvenile delinquency involving a violent or controlled substances felony." 18 U.S.C. 521. The government might argue that this shows Congress intended certain adjudications of juvenile delinquency to constitute convictions for immigration purposes.
REMOVAL - DEFENSES - INTERNATIONAL LAW - JUVENILES
Oliva v. U.S. Dept of Justice, ___ F.3d ___, 2005 WL 3557435 (2d Cir. Dec. 30, 2005) (U.N. Convention on the Rights of the Child had not achieved the status of customary international law so as to require immigration authorities to give "the best interests" of the child "primary consideration" in deciding whether to order removal of the child).
CONVICTION - JUVENILE - ADULT CONVICTION OF NONCITIZEN UNDER 18 WHEN OFFENSE COMMITTED MAY NOT CONSTITUTE A CONVICTION FOR IMMIGRATION PURPOSES UNLESS FEDERAL LAW AUTHORIZED TRANSFER OF SUCH A CASE TO ADULT COURT
The Federal Juvenile Delinquency Act creates a possible defense for certain noncitizens who committed an offense while under 18 years of age, who may argue that the disposition is a delinquency adjudication - and therefore not a conviction of a crime for immigration purposes - even if they pleaded guilty to an offense as an adult: "Whenever a juvenile transferred to district court under this section is not convicted of the crime upon which the transfer was based or another crime which would have warranted transfer had the juvenile been initially charged with that crime, further proceedings con
CRIMES OF MORAL TURPITUDE - CONVICTION - JUVENILE CRIMES OF MORAL TURPITUDE - INADMISSIBILITY - ADMISSION - JUVENILE
An adjudication of delinquency is not a conviction for immigration purposes. Matter of Devison, 22 I. & N. Dec. 1362 (BIA 2000). However, a noncitizen can be inadmissible from the United States if s/he admits the essential elements of a crime involving moral turpitude or a controlled substance offense. In order for a noncitizens statements to constitute a valid admission: (1) the conduct must be for something that is a crime, (2) the government must provide a plain language description of the crime, and (3) the admission must be voluntary.
CONVICTION - DEPORTATION - FOREIGN CONVICTIONS - CONGRESS EXCLUDED FOREIGN CONVICTIONS FROM CONVICTIONS TRIGGERING DEPORTATION, EXCEPT WHERE IT EXPRESSLY PROVIDED OTHERWISE
Small v. United States, ___ U.S. ___ (April 26, 2005) (18 U.S.C. 922(g)(1), which prohibits a person who has been "convicted in any court" from possessing a firearm, encompasses only domestic, not foreign, convictions), abrogating United States v. Atkins, 872 F.2d 94, 96 (4th Cir. 1989), and United States v. Winson, 793 F.2d 754, 757-759 (6th Cir. 1986).
CONVICTION - PUERTO RICO TREATED LIKE A STATE
Puerto Rico is considered equivalent to a state, for purposes of determining whether a noncitizen was convicted of a crime for deportation purposes, giving the same effect to its judicial decrees as if they were orders of a state court and the same effect to its legislative enactments as it would to state statutes. Herrera-Inirio v. INS, 208 F.3d 299, 304 n.1 (1st Cir. 2000) (citing 28 U.S.C. 1738 (extending full faith and credit doctrine to Puerto Rico); 48 U.S.C.
CONVICTION - FINALITY OF CONVICTION - FIFTH AND SEVENTH CIRCUITS DO NOT FOLLOW GENERAL RULE
In most circuits, convictions in criminal cases are not considered sufficiently final to permit the initiation of deportation proceedings if an appeal is pending or they are still subject to appeal. Matter of Polanco, 20 I. & N. Dec. 894 (BIA 1994). This is not true in the Fifth or Seventh Circuits. See Moosa v. INS,171 F.3d 994 (5th Cir. 1999); Renteria-Gonzales v. INS, 322 F.3d 804 (5th Cir. 2002); Montenegro v. Ashcroft, 355 F.3d 1035, 1037 (7th Cir. 2004).
CONVICTION - DATE OF CONVICTION IS DATE PUNISHMENT IMPOSED
Donaldson v. United States, __ F.Supp.2d __, 2005 WL 1248879 (S.D. Tex. April 26, 2005) (noncitizen found guilty by jury of an aggravated felony offense [simple possession] on November 13, 1989, but sentenced [to deferred adjudication] on January 19, 1990, was found to have been "convicted" on January 19, 1990, and was therefore permanently barred from naturalization for inability to show good moral character).
AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - STATUTORY RAPE
United States v. Lopez-Solis, __ F.3d __, 2006 WL 1360075 (9th Cir. May 19, 2006) (Tennessee conviction of statutory rape, in violation of Tennessee code 39-13-506, is not categorically "sexual abuse of a minor," and therefore not a "crime of violence" for purposes of illegal re-entry sentence enhancement; slight sexual penetration of a minor just under 18 by a 22 year old is not necessarily "abuse").
http://caselaw.lp.findlaw.com/data2/circs/9th/0310059p.pdf
