BIA

CONVICTION " NATURE OF OFFENSE " ELEMENTS OF OFFENSE " SENTENCE ENHANCEMENT " MILITARY CONVICTION
Matter of Chavez-Alvarez, 26 I. & N. Dec. 274 (BIA Mar. 14, 2014) (an sentencing enhancement element listed in a specification in the Manual for Courts-Martial, that must be pled and proved beyond a reasonable doubt, is the functional equivalent of an element of a criminal offense for immigration purposes).

CONVICTION " MUNICIPAL ORDINANCE
Matter of Cuellar-Gomez, 25 I&N Dec. 850, 855 (BIA Jul. 18, 2012) (Kansas conviction of possession of marijuana, in violation of a Wichita municipal ordinance, constituted a conviction for immigration proceedings because the Wichita proceedings required proof beyond a reasonable doubt, even though there was no right to counsel or jury trial), distinguishing Matter of Eslamizar, 23 I. & N. Dec. 684 (BIA Oct. 19, 2004).

CONVICTION - DEFINITION - FEES ARE PUNISHMENT
Matter of Cabrera, 24 I. & N. Dec. 459 (BIA Feb. 27, 2008) (costs and surcharges imposed in Florida deferred adjudication proceeding constitute a form of "punishment" or "penalty" for purposes of establishing that a noncitizen has suffered a "conviction" within the meaning of INA 101(a)(48)(A)). Note: the court here sought to establish a national standard (rather than relying on Florida state law), and includes amounts paid in restitution as a cost equaling "punishment."

CONVICTION - OFFENSE - DEFINITION
Matter of Carachuri-Rosendo, 24 I. & N. Dec. 382, 388 (BIA Dec. 13, 2007) (en banc) ("A criminal "offense" is defined by its "elements," Schmuck v. United States, 489 U.S. 705, 716-17 (1989), with "elements" being understood as facts that must be proven to a jury beyond a reasonable doubt in order to convict. In re Winship, 397 U.S. 358, 364 (1970).").

CONVICTION - STATUTORY DEFINITION - CONVICTION REQUIRES SENTENCE
Singh v. Holder, 568 F.3d 525 (5th Cir. May 14, 2009) (under INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A), "formal judgment of guilt" is defined by reference to Federal Rule of Criminal Procedure 32(k)(1), which provides that "[i]n the judgment of conviction, the court must set forth the plea, the jury verdict or the court's findings, the adjudication, and the sentence."); Puello v. Bureau of Citizenship and Immigration Servs., 511 F.3d 324, 329 (2d Cir. 2007); Perez v. Elwood, 294 F.3d 552, 562 (3d Cir. 2002) (same).

First Circuit

CONVICTION " DEFINITION " FORMAL JUDGMENT OF GUILT
Vivieros v. Holder, ___ F.3d ___, ___ (1st Cir. Jun. 25, 2012) (Massachusetts conviction of shoplifting, under Mass. Gen. Laws ch. 266, 30A, constituted a conviction for immigration purposes, under INA 101(a)(48)(A), 8 U.S.C. (a)(48)(A), where the defendant pleaded guilty and received a fine of $250, which was later vacated, so the ultimate disposition was a guilty finding with no fines or costs, because the statutory definition of conviction has no such requirement in (A), but Congress specifically included a punishment requirement in the alternative definition under (B): We reject out-of-hand the petitioner's suggestion that there was no formal judgment of guilt because he was never ultimately punished for his shoplifting crime.); distinguishing Griffiths v. INS, 243 F.3d 45, 51-52, 54 (1st Cir. 2001) (stating that the punishment question is irrelevant to an inquiry into whether a formal judgment has been imposed; the court in Griffiths simply filed a guilty plea without ever imposing a sentence); see Duncan v. Walker, 533 U.S. 167, 173, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) (explaining that where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion (internal quotation marks omitted)).

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).

CONVICTION - RESTITUTION AS PUNISHMENT - AGGRAVATED FELONY - FRAUD - RESTITUTION
De Vega v. Gonzales, __ F.3d __, 2007 WL 2696489 (1st Cir. Sept. 17, 2007) (an order to pay restitution was sufficient to meet "punishment" requirement of INA 101(a)(48)(A)(ii), 8 U.S.C. 1101(a)(48)(A)(ii), and the disposition therefore constituted a "conviction" under INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A) for immigration purposes).

CONVICTION " EXISTENCE OF CONVICTION " RESTITUTION ORDER CONSTITUTED PUNISHMENT
De Vega v. Gonzales, 503 F.3d 45, 47 (1st Cir. 2007) (alien admitted to facts sufficient for a finding of guilt and court issued a continuance without a finding of guilt, contingent on payment of restitution, which constituted punishment, and the disposition therefore constituted a conviction under INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A)). NOTE: This case is very poorly reasoned. The courts discussion was as follows: Second, de Vega claims that she was not convicted of an aggravated felony, and thus the IJ erred in finding her ineligible for cancellation of removal, a form of relief available only to LPRs who have not been convicted of such a crime. See 8 U.S.C. 1229b(a)(3) (stating that the Attorney General may grant cancellation of removal only if the alien has not been convicted of any aggravated felony). She contends that there was no conviction at all, and, alternatively, that if there were a conviction, it was not for an aggravated felony. We think it clear that de Vega was convicted within the meaning of the INA. IIRIRA specifies the criteria necessary for a conviction: The term conviction means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where-(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilty, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed. Id. 1101(a)(48)(A). There is no dispute that she admitted to facts sufficient for a finding of guilt. However, she claims that the order requiring her to pay restitution did not constitute a form of punishment, penalty, or restraint on [her] liberty. Id. Although the IJ and the BIA implicitly rejected de Vega's argument on this point, neither provided an explanation. We conclude that the particular order in this case was plainly a punishment or penalty. De Vega was required to pay a large sum of money. If she failed to make her payments, her admission could ripen into a guilty plea and she would be subject to further punishment. See Commonwealth v. Aboulmal, No. 02-P-830, 2003 WL 22309058, at *2 (Mass.App.Ct.) (An admission to sufficient facts may result ... in a continuance without a finding to a specific date, conditioned on compliance with specific terms. In the event of a violation of those terms, the admission remains and may ripen into an adjudication of guilt and imposition of sentence.). Under Massachusetts law, therefore, a continuation, based on an admission of facts sufficient for a finding of guilt and conditioned on payment of restitution, is treated as the legal equivalent of a guilty plea and probationary sentence. Id. (citing Commonwealth v. Villalobos, 437 Mass. 797, 777 N.E.2d 116, 119-20 (2002)). Based on the facts of this case and Massachusetts law, we conclude that the restitution order was punitive, and we find no error in the agency's conclusion that, under the INA definition, de Vega was convicted. (De Vega v. Gonzales, 503 F.3d 45, 48-49 (1st Cir.2007)). This reasoning suffers from at least two serious defects. First, it relies on Massachusetts state law. This is an error. It is well-established that the question of the existence of a conviction depends on federal immigration law, rather than state law. The Full Faith and Credit doctrine does not require the immigration courts to follow state definitions of what constitutes a conviction for immigration purposes. This issue is determined by reference to the statutory definition of conviction. INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A). Thus, the District Court for the Northern District of Texas rejected a claim that because Texas law did not consider a deferred adjudication to be a conviction, the Full Faith & Credit statute required the federal court to accept this state rule. Bui v. Ashcroft, 2003 WL 251929 at p. *3 (N.D. Tex. 2003) (unpublished). N. TOOBY & J. ROLLIN, AGGRAVATED FELONIES 3.31(G), p. 189 (2006). Second, it is well-established that the purpose of restitution is to make the victim whole, rather than to punish the defendant. Since the purpose of restitution is rehabilitative, rather than punitive, it should not be considered to be punishment, penalty, or restraint within the meaning of the federal immigration statutory definition of conviction.

Second Circuit

CONVICTION - STATUTORY DEFINITION - RETROACTIVITY
Puello v. BCIS, 511 F.3d 324 (2d Cir. Dec. 20, 2007) (1996 statutory definition of "conviction" under INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A), applies retroactively: "In passing the statute, Congress made clear that it intended the new definition to apply retroactively. Illegal Immigration Reform and Alien Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208, Div. C., Title III-A 322(c), 110 Stat. 3009-629 (1996) (applying the new definition to "convictions and sentences entered before, on, or after the date of enactment of this Act).").

CONVICTION - PLEA - NOLO CONTENDERE - NO CONTEST PLEA EQUIVALENT TO GUILTY PLEA RESULTING IN CONVICTION FOR IMMIGRATION PURPOSES
Canada v. Gonzales, ___ F.3d ___, 2006 WL 1367367 (2d Cir. May 18, 2006) (Connecticut nolo contendere plea results in conviction under INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A) for removal purposes).

Lower Courts of Second Circuit

CONVICTION - SENTENCE - CALIFORNIA LAW PROVIDES THAT WITHOUT A SENTENCE, THERE IS NO CONVICTION
The California courts have plainly held that there is no conviction without a sentence. "There must [. . .] exist both prohibited or commanded acts and punishment for violation thereof; without both, there is no crime." People v. Vasilyan, 174 Cal. App. 4th 443, 450 (Cal. App. 2d Dist. 2009) (citing People v. Crutcher (1968) 262 Cal.App.2d 750, 754 [68 Cal. Rptr. 904].) ("That there must be a substantive crime and a punishment for that crime in order to constitute a criminal offense has been long recognized)(citing People v. McNulty (1892) 93 Cal. 427, 437 [29 P. 61].)) (emphasis added).

Third Circuit

CONVICTION " DEFINITION " ESLAMIZAR
Castillo v. Holder, 729 F.3d 296 (3d Cir. 2013) (New Jersey disorderly persons offense is not a conviction, as defined for immigration purposes in INA 101(a)(48), 8 U.S.C. 1101(a)(48); Matter of Eslamizar, 23 I. & N. Dec. 684 (BIA 2004), requires that a disposition must be considered an adjudication of guilt in a genuine criminal proceeding under the law of the convicting jurisdiction; under New Jersey law, a disorderly persons offense is not a crime).

Fourth Circuit

CONVICTION " PROBATION BEFORE JUDGMENT " MARYLAND
Yanez-Popp v. INS, 998 F.2d 231 (4th Cir.1993) (Maryland court's granting of probation without judgment, in which a plea of guilty is entered and then stricken during imposition of probation at sentence, constituted a conviction within the meaning of the immigration laws); see INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A).

Sixth Circuit

CONVICTION - ARKANSAS PROCEDURE OF PAYING FINE IN LIEU OF COURT APPEARANCE CONSIDERED SUFFICIENT TO CONSTITUTE CONVICTION FOR IMMIGRATION PURPOSES
Sanusi v. Gonzales, ___ F.3d ___, 2007 WL 148760 (6th Cir. Jan. 23, 2007) (granting post-conviction relief on the basis that defendant did not know that by paying fine and avoiding court appearance, he was subjecting himself to deportation).

Eighth Circuit

CRIMES OF MORAL TURPITUDE " INADMISSIBILITY -- CONVICTION " ADMISSION OF SUFFICIENT FACTS CONTROLLED SUBSTANCES " INADMISSIBILITY -- -- CONVICTION " ADMISSION OF SUFFICIENT FACTS
Garcia-Gonzalez v. Holder, 737 F.3d 498 (8th Cir. Dec. 9, 2013) (by agreeing in his plea agreement that the Government could have proved the factual basis for his racketeering conviction beyond a reasonable doubt, the noncitizen admitted to each of the elements of a violation of 21 U.S.C. 846, which constituted an offense related to a controlled substance; he was therefore inadmissible under INA 212(a)(2)(A)(i)(II)).

Lower Courts of Eighth Circuit

RECORD OF CONVICTION " ADMISSION OF FACTS " FACTUAL BASIS OF PLEA
Morales v Gonzales, 478 F3d 972 (9th Cir. 2007) (a defendants admission to facts for a limited purpose does not become part of the record of conviction and cannot be used in subsequent proceedings). Note: Facts recited by a court of appeals opinion affirming the sufficiency of the evidence for conviction were not facts admitted by the defendant for their truth and should not have been considered part of the record of conviction for purposes of determining the nature of the conviction for immigration purposes. [F]or the sole purpose of determining the sufficiency of the evidence, the evidence is presumed true. It was from this isolated context that the IJ drew the facts and circumstances of Morales's conviction. This is far different from relying on a charging document read in conjunction with a valid plea agreement, where a defendant admits the alleged facts in a way that is binding for the purposes of conviction and subsequent proceedings. See Lara-Chacon v. Ashcroft, 345 F3d 1148, 1152 (9th Cir 2003). Here, in her appeal, Morales did not admit the truth of the evidence presented by the State for all future purposes; she simply allowed the state appellate court to assume the truth of the State's evidence for the purpose of her challenge to its sufficiency." Morales, supra, 982-983. COMMENT: Just as with the limited admission in the court of appeal in this case, the agreement that the court may use police reports or an oral statement of facts or any facts to assess whether there is a factual basis for the plea, should not under identical reasoning be taken as an admission that is binding for the purposes of conviction and later proceedings. Counsel could make this clear, and say, As the court knows, the defense sometimes disagrees with the truth of the facts in the police reports, or prosecution version. We are therefore not agreeing that this statement of facts is true, but are agreeing that the court may consider it for the limited purpose of allowing the court to evaluate a factual basis for this plea. That may well protect the defendant against adverse facts in the factual basis being considered as true in later immigration proceedings. Cross-References: Cal Crim Def Immig 3.41

Ninth Circuit

CONVICTION " DEFINITION " ADMISSION OF FACTS
Morales v. Gonzales, 472 F.3d 689 (9th Cir. Jan. 3, 2007) (agreement to allow state appellate court to assume the truth of the States evidence for the purpose of defendants challenge to the sufficiently of the evidence on appeal is not an admission of facts sufficient to determine the nature of a conviction for immigration purposes, since [N]o factual findings are actually made, and no admissions are entered into by the defendant. Instead, for the sole purpose of determining the sufficiency of the evidence, the evidence is presumed true. . . . This is far different from relying on a charging document read in conjunction with a valid plea agreement, where a defendant admits the alleged facts in a way that is binding for the purposes of conviction and subsequent proceedings. See Lara-Chacon v. Ashcroft, 345 F.3d 1148, 1152 (9th Cir.2003).).

CONVICTION
Nunez-Reyes v. Holder, 646 F.3d 684, 694 (9th Cir. Jul. 14, 2011) (en banc) (But Congress did not intend adverse immigration consequences for those who were merely charged with a crime or suspected of a crime; Congress intended such results only for those who were duly convicted, with all the constitutional protections of our criminal justice system. Relevant here, we think it is a reasonable assumption that Congress intended adverse immigration consequences only for those who were convicted either after the exercise of their constitutional rights, such as the right to trial, or after an informed waiver of those constitutional rights.).

CONVICTION - PUNISHMENT - CRIMINAL FINE CONSTITUTES SUFFICIENT PUNISHMENT TO CREATE A CONVICTION SO LONG AS IT IS NOT STAYED
Retuta v. Holder, 591 F.3d 1181 (9th Cir. Jan. 7, 2010) (California fine imposed as part of the sentence as a result of a plea in a criminal case constituted sufficient punishment to create a conviction, within the meaning of INA 101(a)(48)(B), 8 U.S.C. 1101(a)(48)(B): "We need not decide whether we must give deference to BIA's decision in Cabrera that costs or restitution are sufficiently punitive to be a "punishment" or "penalty," as the minute order clearly states the amount involved to be a fine."), citing Matter of Cabrera, 24 I. & N. Dec. 459, 461-462 (BIA 2008) (mandatory costs imposed in a criminal sentence were sufficient to constitute a "punishment" or "penalty," within the meaning of INA 101(a)(48)(B), 8 U.S.C. 1101(a)(48)(B), creating a conviction for immigration purposes).

CONVICTION - PUNISHMENT - CRIMINAL FINE THAT HAS BEEN STAYED DOES NOT CONSTITUTE SUFFICIENT PUNISHMENT TO CREATE A CONVICTION FOR IMMIGRATION PURPOSES
Retuta v. Holder, 591 F.3d 1181 (9th Cir. Jan. 7, 2010) (the statutory definition of "conviction," INA 101(a)(48), 8 U.S.C. 1101(a)(48), does not include criminal judgments whose only consequence is a suspended non-incarceratory sanction because in the first part of its statutory definition of conviction, INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A), "Congress intentionally omitted the exemplars [listed in Matter of Ozkok], which included several minor sanctions such as "revocation or suspension of a driver's license, deprivation of nonessential activities or privileges, or community service." [Footnote omitted.] The minute order here required less from petitioner Retuta than any of the exemplars in the Ozkok opinion that Congress chose not to adopt. In fact, the minute order requires nothing of Retuta. He suffered no loss of wealth, nor loss of liberty." In addition, in INA 101(a)(43)(B), 8 U.S.C. 1101(a)(48)(B) Congress specifically allowed suspended incarceration to qualify as sufficient punishment to create a conviction, but did not do so for a suspended fine.).

CONVICTION - PUNISHMENT - CRIMINAL FINE CONSTITUTES SUFFICIENT PUNISHMENT TO CREATE A CONVICTION SO LONG AS IT IS NOT STAYED
Retuta v. Holder, 591 F.3d 1181 (9th Cir. Jan. 7, 2010) (California fine imposed as part of the sentence as a result of a plea in a criminal case constituted sufficient punishment to create a conviction, within the meaning of INA 101(a)(48)(B), 8 U.S.C. 1101(a)(48)(B): "We need not decide whether we must give deference to BIA's decision in Cabrera that costs or restitution are sufficiently punitive to be a "punishment" or "penalty," as the minute order clearly states the amount involved to be a fine."), citing Matter of Cabrera, 24 I. & N. Dec. 459, 461-462 (BIA 2008) (mandatory costs imposed in a criminal sentence were sufficient to constitute a "punishment" or "penalty," within the meaning of INA 101(a)(48)(B), 8 U.S.C. 1101(a)(48)(B), creating a conviction for immigration purposes).

CONVICTION - NATURE OF CONVICTION - WEST PLEA
United States v. Vidal, 504 F.3d 1072, 1087-1088 (9th Cir. Oct. 10, 2007) ("The California Supreme Court subsequently characterized a People v. West plea as a plea of nolo contendere that does not establish factual guilt. See In re Alvernaz, 2 Cal.4th 924, 8 Cal.Rptr.2d 713, 830 P.2d 747, 752 (1992) (describing a People v. West plea as a "plea of nolo contendere, not admitting a factual basis for the plea"); see also United States v. Nguyen, 465 F.3d 1128, 1130 (9th Cir.2006) ("[A] plea of nolo contendere ... is, first and foremost, not an admission of factual guilt. It merely allows the defendant so pleading to waive a trial and to authorize the court to treat him as if he were guilty." (citation omitted)). By entering a West plea a defendant "[does] not admit the specific details about his conduct on the ... counts[to which] he pled guilty." Carty v. Nelson, 426 F.3d 1064, 1068 (9th Cir.2005) (citing In re Alvernaz, 2 Cal.4th 924, 8 Cal.Rptr.2d 713, 830 P.2d 747); see also West, 91 Cal.Rptr. 385, 477 P.2d at 420 (explaining that by entering a plea agreement a defendant "demonstrates that he ... is prepared to admit each of [the offense]'s elements" but not factual guilt). As a result, unless the record of the plea proceeding reflects that the defendant admitted to facts, a West plea, without more, does not establish the requisite factual predicate to support a sentence enhancement.").

CONVICTION - NATURE OF CONVICTION - WEST PLEA
United States v. Vidal, 504 F.3d 1072, 1087-1088 (9th Cir. Oct. 10, 2007) ("Moreover, in the context of a People v. West plea, "[a] court is not limited to accepting a guilty plea only to the offense charged but can accept a guilty plea to any reasonably related lesser offense." People v. Tuggle, 232 Cal.App.3d 147, 283 Cal.Rptr. 422, 426 n. 10 (Ct.App.1991) (rejecting reliance on the fact that the offense was charged in the conjunctive because the prosecutor could have amended the information before the plea) (citing West, 91 Cal.Rptr. 385, 477 P.2d at 419-20), overruled on other grounds by People v. Jenkins, 10 Cal.4th 234, 40 Cal.Rptr.2d 903, 893 P.2d 1224 (1995). The prosecution need not have formally amended the two counts in order for Vidal to have pled guilty to conduct other than that alleged in the Complaint. See People v. Sandoval, 140 Cal.App.4th 111, 43 Cal.Rptr.3d 911, 926 (Ct.App.2006) (explaining that under California's informal amendment doctrine no "talismanic significance [attaches] to the existence of a written information" and that "a defendant's conduct may effect an informal amendment of an information without the People having formally filed a written amendment to the information").

Tenth Circuit

CONVICTION " EXISTENCE OF CONVICTION " GOVERNMENT NEED NOT PROVE CONVICTION WAS CONSTITUTIONAL IN ORDER TO DEPORT
Waugh v. Holder, 642 F.3d 1279, 1283 (10th Cir. Jun. 22, 2011) (DHS does not need to establish that criminal counsel gave proper immigration advice under Padilla v. Kentucky in order to establish deportability), citing United States v. Adame-Orozco, 607 F.3d 647, 653 (10th Cir. 2010) (that while an alien may have the right to pursue appellate or collateral relief for an aggravated felony conviction under various provisions of state and federal law, the government need not wait until all these avenues are exhausted before deporting him.).

Eleventh Circuit

JUVENILES - ADULT CONVICTIONS
Singh v. US Attorney Gen., __ F.3d __ (11th Cir. Dec. 31, 2008) (Florida conviction, in adult court, of defendant who was a juvenile at the time the offense was committed is still a "conviction" for immigration purposes, even though the defendant could not have been tried as an adult under the Federal Juvenile Delinquency Act), following Vieira Garcia v. I.N.S., 239 F.3d 409 (1st Cir.2001); Vargas-Hernandez v. Gonzales, 497 F.3d 919, 922-23 (9th Cir.2007); Savchuck v. Mukasey, 518 F.3d 119, 122 (2nd Cir. 2008).

Other

CONVICTION " SENTENCE " NO CONVICTION EXISTS UNLESS A SENTENCE HAS BEEN IMPOSED " ARGUMENT
The statutory definition of conviction, for immigration purposes, requires that the court must have ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed. INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A)(2010). As the Second, Third and Fifth Circuits have held, a formal judgment of guilt requires that the court must set forth the plea, the jury verdict or the court's findings, the adjudication, and the sentence. Singh v. Holder, 568 F.3d 525, 530 (5th Cir. 2009) (emphasis added), citing Federal Rule of Criminal Procedure 32(k)(1); Puello v. Bureau of Citizenship and Immigration Servs., 511 F.3d 324, 329 (2d Cir. 2007); Perez v. Elwood, 294 F.3d 552, 562 (3d Cir. 2002)). The United States Supreme Court also holds that [f]inal judgment in a criminal case ... means sentence. The sentence is the judgment. Singh, 568 F.3d at 530, citing Corey v. United States, 375 U.S. 169, 174, 84 S.Ct. 298, 11 L.Ed.2d 229 (1963), quoting Berman v. United States, 302 U.S. 211, 212, 58 S.Ct. 164, 82 L.Ed. 204 (1937). This is also the law in California. Judgment in California is synonymous with the pronouncement of a sentence. See People v. Perez 23 Cal.3d 545, 549 n.2 (1979); People v. Flores, 12 Cal.3d 85, 93 n.6 (1974). Because no new sentence has been imposed on these convictions, the respondent does not have a final conviction for immigration purposes. See Pino v. Landon, 349 U.S. 901 (1955) (stating that a criminal conviction may not be considered by the immigration authorities until it is final). Thanks to Michael Mehr and Rachael Keast.

PRACTICE ADVISORY " CONVICTION " SENTENCE " SENTENCE REQUIRED FOR CONVICTION
There is some tension between the rule that the original sentence is added to probation-violation sentences, on the one hand, and the Song/Cota BIA cases on sentence modification that state that it is the final sentence that governs for purposes of assessing the immigration consequences of a judgment. Matter of Song, 23 I. & N. Dec. 173 (BIA 2001); Matter of Cota-Vargas, 23 I. & N. Dec. 849 (BIA 2005). If state probation violation procedure provides that a defendant receives credit for time served originally against a probation violation sentence, then the original and probation violation sentences would not be added together. For example, if the defendant received a six-month sentence originally, then a nine-month sentence on a violation of probation, s/he would only have to serve three of the nine months probation violation sentence. Under those circumstances, there would be an argument under Song that the final sentence for the offense is nine months. Many, if not most states, however, do not have such a rule. For example, in New York, the probation violation sentence imposed is in addition to the original jail term. New York Penal L. 60.01(4). The same is true in California, unless the court orders otherwise. On a probation violation sentence, defense counsel can ask that the original sentence be vacated and replaced by the probation violation sentence, and the defendant can if necessary waive credit for time already served. Under these circumstances, the two sentences would not be added together, because the first sentence has been vacated, and only then is the second sentence imposed " each of which is by itself too short to trigger aggravated felony treatment for the conviction. As the Board stated: "we see nothing in the language or stated purpose of section 101(a)(48)(B) that would authorize us to equate a sentence that has been modified or vacated by a court ab initio with one that has merely been suspended." Matter of Song, 23 I&N Dec. 849, 852 (BIA 2001). Thanks to Isaac Wheeler.

CONVICTION - ALFORD PLEA - NATURE OF THE CONVICTION
Entry of a plea under North Carolina v. Alford, does not alter the immigration nature of the conviction, but it might make it easier for the court and prosecution to avoid insisting on making a record of the factual basis for the plea that would expand the nature of the conviction sufficiently to trigger a ground of deportation. Since an Alford plea is entered without any factual admission of guilt, the court and prosecution may allow entry of the plea without establishing any factual basis for the plea. If the court still wishes to establish a factual basis, it might be more inclined to accept defense counsel's specific disclaimer, "We are not admitting the truth of the facts contained in the police report, but simply allowing the court to review it to determine whether the prosecution could present some evidence of every element of the offense." This disclaimer should be sufficient to take the police report factual basis out of the record of conviction, since the defendant is expressly not admitting the truth of the facts contained therein.

CONVICTION " PROBATION VIOLATION " VIOLATION DOES NOT RESULT IN A NEW CONVICTION BUT A NEW SENTENCE FOR THE ORIGINAL CONVICTION
INA 101(a)(48)(A) (statutory definition of conviction); United States v. Hidalgo-Macias, 300 F.3d 281, 285 (2d Cir. 2002) (rejecting the argument that a one-year sentence on a violation of probation was a separate conviction from the conviction for the underlying offense, and holding that the probation violation did not make the underlying offense a crime of violence aggravated felony: "the imposition of a sentence of imprisonment following revocation of probation [in NY] is a modification of the original sentence"); In re Ahmed, 2005 WL 3952705 (Aug. 22, 2005) (unpublished) ("a [New York] probation violation is not -- in the context of a probation revocation hearing -- deemed a crime from which a discrete sentence may flow."), aff'd, Ahmed v. Attorney General of U.S., 212 Fed. Appx. 133 (3rd Cir. Jan 8, 2007) (unpublished); see Darvin M. v. Jacobs, 509 N.E.2d 336, 337 (N.Y. 1987) ("A violation of probation giving rise to revocation proceedings is not a 'crime' or 'offense' which . . . must be prosecuted by a District Attorney. . . . Its purpose is to determine if defendant's subsequent acts violate the conditions of the original sentence not whether the acts constitute a crime."); NY Criminal Procedure Law 1.20(16), 1.20(18), 410.10, 410.30, 410.70 (a New York violation of probation is merely a further "criminal proceeding" pursuant to the original "criminal action" and is not a new "criminal action").