In order to trigger the aggravated felony ground of deportation, the conviction must be for a crime, as defined in the jurisdiction in which the offense was committed.[41]  Where the conviction is for a minor offense that is not designated as a crime in the jurisdiction in which it was committed, a conviction does not trigger deportation under this ground.[42]  For example, a citation for marijuana possession in a federal park might not be considered a conviction for a crime.[43]

 

Where the prosecution could proceed either civilly or criminally, and chose to prosecute the defendant for a crime, the resulting conviction is considered to be for a crime.[44]

 

The BIA has recently held that the phrase “judgment of guilt” under the statutory definition of “conviction”[45] requires that the judgment be issued as part of a criminal proceeding, i.e., “a trial or other proceeding whose purpose it is to determine whether the accused committed a crime and which provides the constitutional safeguards normally attendant upon a criminal adjudication.”[46]  The court found that a “criminal” proceeding under Oregon law[47] that resulted in a finding of guilt was not a conviction for immigration purposes because the proceeding involved a “violation” rather than a crime, for a number of reasons: conviction of a violation does not result in any legal disability under Oregon law;  the defendant does not have a right to a jury or court-appointed counsel in those proceedings; and the prosecution need only show guilt by a preponderance of the evidence, rather than beyond a reasonable doubt.[48]  Therefore, the proceedings were not criminal proceedings under federal immigration law, and the result was not a conviction for purposes of triggering a conviction-based ground of deportation.

Other states may have similar proceedings that will not result in a “conviction” for immigration purposes.[49]  For example, in California, certain misdemeanor offenses, notably petty theft,[50] can be prosecuted as misdemeanors or infractions.[51]  The infraction is similar to the Oregon petty offense procedure held in Eslamizar not to be a conviction in several important respects:

 

            (1)  “An infraction is not punishable by imprisonment.”[52]

 

            (2)  “A person charged with an infraction shall not be entitled to a trial by jury.”[53]

 

            (3)  There is no right to the assistance of court-appointed counsel.[54]

 

Although the defendant must be proved guilty beyond a reasonable doubt,[55] on balance, the California infraction procedure cannot be said to be a criminal procedure, because of the reasons stated above.  In Eslamizar, the Board en banc held “that by ‘judgment of guilt’ Congress most likely intended to refer to a judgment in a criminal proceeding, that is, a trial or other proceeding whose purpose is to determine whether the accused committed a crime and which provides the constitutional safeguards normally attendant upon a criminal adjudication.”[56]  Even though the burden of proof for an California infraction is beyond a reasonable doubt, that single factor should be insufficient to convert a proceeding without the right to a jury trial, without the right to appointed counsel, and for which no jail sentence is permissible, into “judgment in a criminal proceeding, that is, a trial or other proceeding whose purpose is to determine whether the accused committed a crime and which provides the constitutional safeguards normally attendant upon a criminal adjudication.”[57]  Therefore, an infraction under California law should not be considered a criminal conviction, for immigration purposes, under Eslamizar.

 

If a violation is described as an “offense,” to comply with local jurisdictional requirements, that label does not necessarily prevent its classification as a crime for removal purposes, when it is actually a crime.[58]  The label given to an act by a state or local jurisdiction does not control decision of the question whether the offense constitutes a crime within the meaning of the Immigration and Nationality Act.[59]  In one case, even where the local jurisdiction treated the matter as civil, the BIA held that a guilty finding rendered the conduct a crime for purposes of former 8 U.S.C. § 1251(a)(4)(A).[60]  It is questionable, however, whether the Board would reach such a result today.[61]  Even if a state legislature calls an act a misdemeanor, the conduct may be considered a crime for removal purposes when the act in question was a “crime at common law involving an act intrinsically and morally wrong and malum in se.”[62]

 

Juvenile delinquency is not regarded as a crime, and a person who is regarded under local law as a juvenile offender or juvenile delinquent has not been convicted of a crime for immigration purposes.  The fact that a noncitizen was a minor at the time the offense was committed does not in itself exempt him or her from deportation on account of a conviction so long as the conviction occurred in adult court.  See also § 3.41, infra.

 

            Military convictions of minor offenses, or even of major offenses, which are punished in a perfunctory manner as “non-judicial punishment,” do not constitute convictions of “crimes,” and thus cannot trigger deportation under any of the deportation grounds requiring criminal convictions.[63] This is true because no incarceration is possible as a result of this minor and informal procedure, and because the procedure cannot be called a criminal procedure so as to result in a criminal conviction of a crime.[64]  See also § 3.30, infra.

 

            A foreign conviction for conduct not deemed criminal under United States law does not trigger deportation.  See § 3.26(A), infra.

 

            A conviction must be for a crime that is really a crime.  For example, an attempt to commit a crime which has recklessness as a mental element was held not to be a crime at all, since a person cannot intend to commit a criminally reckless act, and the “crime of attempted reckless endangerment is nonexistent since it is a non-intent offense.”[65]  A conviction of a defendant for conspiring with only one other person may not be considered a conviction of a crime, if the particular offense (e.g., sale of drugs), cannot be committed without the involvement of at least two persons.  There may be other examples.

 

[41] Ex parte Isojoki, 222 Fed. 151 (N.D. Cal. 1915).

[42] Matter of Van Dessel, 243 F.Supp. 328 (E.D. Pa. 1965) (fornication considered to be a minor offense); Matter of C, 2 I. & N. Dec. 367 (BIA 1945).

[43] Since a citation for possession of marijuana in a National Park does not carry a jail sentence, it is possible it does not constitute a crime and therefore cannot trigger deportability as a conviction of a crime related to a controlled substance. See Matter of Eslamizar, 23 I. & N. Dec. 684 (BIA Oct. 19, 2004) (en banc).

[44] Matter of W and B, 5 I. & N. Dec. 87 (BIA 1953).

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

[46] Matter of Eslamizar, 23 I. & N. Dec. 684, 687 (BIA Oct. 19, 2004) (emphasis supplied).

[47] Oregon Revised Statutes § 153.076.

[48] Matter of Eslamizar, 23 I. & N. Dec. at 687.

[49] See, e.g., California Penal Code § 19.6.

[50] California Penal Code § § 484(a), 488.

[51] California Penal Code § § 17(d), 19.8 (giving list of offenses).

[52] California Penal Code § 19.6.

[53] Ibid.

[54] Ibid.

[55] See California Penal Code § 19.7 (“. . . all provisions of law relating to misdemeanors shall apply to infractions including . . . burden of proof.”).

[56] Matter of Eslamizar, 23 I. & N. Dec. 684, 687 (BIA Oct. 19, 2004) (emphasis supplied).

[57] Ibid.

[58] Babouris v. Esperdy, 269 F.2d 621 (2d Cir. 1959) (soliciting men to commit a crime against nature or other lewdness; the state’s classification is not controlling since Congress intended to apply uniform federal standard, applicable in all states); United States v. Flores-Rodriquez, 237 F.2d 405 (2d Cir. 1956); Matter of P, 8 I. & N. Dec. 424 (BIA 1959) (Massachusetts conviction of lewdness); Matter of CR, 8 I. & N. Dec. 59 (BIA 1958) (conviction by police court for theft, even though statute designates such prosecution as civil proceeding); Matter of G, 7 I. & N. Dec. 520 (BIA 1957) (disorderly conduct: soliciting a man for an immoral purpose)); Matter of W, 4 I. & N. Dec. 401 (BIA 1951) (practicing prostitution), reversed on other grounds by Matter of Turcotte, 12 I. & N. Dec. 206 (BIA 1967)).

[59] Wyngaard v. Kennedy, 295 F.2d 184 (D.C. Cir.), cert. denied,  368 U.S. 926 (1961).  See § 4.39, infra.

[60] Matter of CR, 8 I. & N. Dec. 59, 61 (BIA 1958).

[61] See Matter of Ozkok, 19 I. & N. Dec. 546 (BIA 1988).

[62] Tillinghast v. Edmead, 31 F.2d 81, 83 (1st Cir. 1929) (noncitizen convicted of stealing $15.00 and sentenced to confinement for one year was deportable, even though Massachusetts law classified the offense as a “misdemeanor”); Squires v. INS, 689 F.2d 1276 (6th Cir. 1982) (common-law crime committed in Canada was analogous to a felony in local jurisdiction and resulted in deportability of noncitizen); Babouris v. Esperdy, 269 F.2d 621 (2d Cir. 1959), cert. denied, 362 U.S. 913, 80 S.Ct. 662 (1959) (“disorderly conduct,” consisting of loitering, defined as an “offense” by New York law, was nevertheless a “crime involving moral turpitude”).

[63] Belliss, Consequences Of A Court-Martial Conviction For United States Service Members Who Are Not United States Citizens, 51 Naval L. Rev. 53, 57 n.23 (2005)(“Whether the finding of guilty and imposition of punishment by a summary court-martial officer against an accused amounts to a conviction for immigration purposes is likely answered in the negative. See Middendorf v. Henry, 425 U.S. 25, 40-42 (1976). In Middendorf, the Supreme Court held that “a summary court-martial is procedurally quite different from a criminal trial” and thus is not a criminal prosecution within the meaning of the Sixth Amendment. Id. at 40. See 1 Francis A. Gilligan & Frederic I. Lederer, Court-Martial Procedure §   8-31.30 (2d ed.). See also United States v. Kelly, 45 M.J. 259 (1996).”).

[64] See Matter of Eslamizar, 23 I. & N. Dec. 684 (BIA Oct. 19, 2004) (en banc).

[65] Knapik v. Ashcroft, 384 F.3d 84 (3d Cir. Sept. 17, 2004) (New York conviction of attempted reckless endangerment in the first degree, in violation of New York Penal Law § 120.25, does not constitute a crime of moral turpitude for deportation purposes, since a person cannot intend to commit a criminally reckless act, and the “crime of attempted reckless endangerment is nonexistent since it is a non-intent offense.”), citing People v. Trepanier, 84 A.D.2d 374, 380, 446 N.Y.S.2d 829 (N.Y.App.Div. 1982) (affirming the lower court’s decision to dismiss the indictment as to this charge).

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.

CONVICTION - CRIME - MINOR OFFENSE - NOT A CRIME UNLESS SUBJECT TO PARDON POWER - MISSOURI
Offense of violating City Charter of a city is Missouri, even though termed a "misdemeanor," is arguably not a "crime" since it is not subject to the Governor's pardon power. See Matter of Cevallos, 12 I. & N. Dec. 750, 1968 BIA LEXIS 71 (May 27, 1968) (one of the definitions of a "crime" is based on whether the "crime" is subject to the Governor's Pardon Powers). In Missouri, the Governor of the State has Pardon powers per Missouri Constitution Art. IV Sec 7. However, in Ex Rel Kansas City v. Renick (1900), 157 Mo. 292, 57 S.W. 713 (1900), the Missouri Supreme Court held that the Governor of the State does not have power of pardon over a "municipal offense." Although in Missouri, under Missouri Statute, the Mayor of a municipality has the power of pardon on a limited basis (see RSMo 77.360: "The mayor shall have power to remit fines and forfeitures and to grant reprieves and pardons for offenses arising under ordinances of the city; but this section shall not be so construed as to authorize the mayor to remit any costs which may have accrued to any officer of the city by reason of any prosecution under the laws or ordinances of said city.") This power, however, cannot eliminate the immigration consequences of such an offense since it is not included under INA 237(a)(2)(A)(v) ("pardons to be granted by President of the US or Governor of any of the Several States"). Thus, pursuant to Matter of Cevallos, the misdemeanor City Charter convictions cannot be regarded as "crimes" for immigration purposes. But see Matter of W, 4 I. & N. Dec. 401 (1951) (violation of a City Ordinance relating to prostitution deemed to be a crime or misdemeanor involving CIMT under Immigration Act of Feb. 5, 1917). Thanks to Raymond R. Bolourtchi.

CONTROLLED SUBSTANCES - POSSESSION OF MARIJUANA - CIVIL VIOLATION
Counsel can argue that Matter of Eslamizar applies to civil violations for possession of marijuana as well as to crimes of moral turpitude. A civil violation arguably should not constitute a ground of inadmissibility because it would not be a crime in the jurisdiction where the conduct occurred. 22 CFR 40.21; Matter of K,7 I. & N. Dec. 594 (BIA 1957); Pazcoguin v. Radcliffe, 922 F.3d 1209 (9th Cir. 2002). The regulation only imposes this requirement for CMTs, but judicial decisions appear to extend it to other inadmissibility grounds as well. The government could argue the language of 237(a)(2)(B)(i) specifies a violation of any "law or regulation" relating to a controlled substance means it need not be a crime. However, regulations can create crimes, so counsel can still argue that the offense must still be considered a "crime" in order to trigger removability. Thanks to Jonathan Moore.

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.

MISDEMEANOR - DEFINITION - MINNESOTA - RELIEF - TEMPORARY PROTECTED STATUS - MISDEMEANOR - MINNESOTA
A Minnesota petty misdemeanor not a "misdemeanor" as defined for TPS, under 8 CFR 244.1 [offenses that are punishable by imprisonment for a term of five days or less shall not be considered a felony or misdemeanor], because the court may not impose a sentence of five days in jail for this type of offense.

Minnesota law divides all offenses into the following categories: (1) petty misdemeanors; (2) misdemeanors; (3) gross misdemeanors; and, (4) felonies. Petty misdemeanors do not constitute a criminal offense under the laws of Minnesota, the maximum penalty for a petty misdemeanor is a fine of $300.00, and a term of imprisonment may not be imposed for a conviction for a petty misdemeanor. Minnesota Statute 609.02, Subd. 4(a); State v. Tessema, 515 N.W.2d 626 (Minn. App. 1994). The Minnesota Rules of Criminal Procedure provide that any offense shall be deemed a conviction for a petty misdemeanor if the sentence imposed upon a plea or finding of guilty is within the limits of the maximum sentence allowable for a petty misdemeanor. Minn. R. Crim. Pro. 23.02. Accordingly, any conviction with a sentence imposed of a fine of $300.00 or less, constitutes a "petty misdemeanor" which is not a criminal conviction and which is punishable "by imprisonment for a term of five days or less." Thanks to Bruce Nestor.