The aggravated felony ground of deportation requires the existence of a criminal conviction meeting certain requirements before deportation will be triggered.  See § § 3.31, et. seq., infra.  If the disposition of the criminal case does not amount to a conviction under the immigration-law definition of conviction, then deportation is not triggered.  Each of the non-conviction dispositions identified in this chapter is therefore a safe haven with respect to this ground of deportation.  It is important to be aware that obtaining a non-conviction disposition does not automatically protect the client against deportation on account of a conduct-based ground of deportation.[39]  Successfully avoiding or eliminating a conviction — and thus avoiding deportation under a conviction-based ground — does not erase the underlying conduct, which can still provide the basis for a conduct-based ground of deportation.

 

            Nonetheless, obtaining a non-conviction disposition in a criminal case, which constitutes a safe haven, is a very powerful way of avoiding deportation, since it is much harder for the government to establish a conduct-based ground of deportation.[40]

 

[39] See N. Tooby & J. Rollin, Safe Havens: How to Identify and Construct Non-Deportable Convictions § § 2.9-2.10 (2005).

[40] See N. Tooby & J. Rollin, Safe Havens: How to Identify and Construct Non-Deportable Convictions § 2.9 (2005).

RELIEF -- CONSULAR PROCESSING " PROVISIONAL WAIVERS CRIMES OF MORAL TURPITUDE " INADMISSIBILITY
USCIS memo dated Jan. 24, 2013 instructs officers not to find a reason to believe that the applicant may be inadmissible under INA 212(a)(2)(A)(i) if the offense is not a CMT, or qualifies for the petty offense or for the youthful offender exception.

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)).