Aggravated Felonies

            (D)  Deferred Adjudication.  The purpose of the 1996 IIRAIRA statutory definition of conviction appears to have been to include as convictions dispositions under various state procedures in which the formal judgment of conviction is deferred, and ultimately not imposed, assuming successful completion of some rehabilitative program.  See § 3.32(B), supra.  The BIA and federal courts have agreed that deferred adjudication dispositions now constitute convictions for immigration purposes under this definition, so long as they meet the statutory requirements. [226]  This is not true of deferred prosecution.  See § 3.34, infra.

The definition of conviction includes a formal judgment of guilt, but also defines a conviction for immigration purposes, in a case where adjudication has been withheld, as existing when two requirements are met:

(1)  a judge or jury has found the noncitizen guilty, or the noncitizen has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt; and

(2)   the judge has ordered some form of punishment, penalty, or restraint on the noncitizen’s liberty to be imposed.[227] 

This new definition of conviction therefore expressly includes dispositions after plea even where adjudication has been withheld.[228]

[226] See Matter of Punu, 22 I. & N. Dec. 224 (BIA 1998) (en banc); Madriz-Alvarado v. Ashcroft, 383 F.3d 321 (5th Cir. Aug. 27, 2004) (deferred adjudication for drug possession was a “conviction” for immigration purposes; IIRAIRA definition of “conviction” is retroactive); Bui v. Ashcroft, 2003 WL 251929 at p. *3 (N.D. Tex. 2003) (unpublished).

[227] INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A), as enacted by IIRAIRA § 322(a)(1).

[228] Madriz-Alvarado v. Ashcroft, 383 F.3d 321 (5th Cir. Aug. 27, 2004) (deferred adjudication for drug possession was a “conviction” for immigration purposes; IIRAIRA definition of “conviction” is retroactive).