If the disposition does not meet the federal definition of conviction, it cannot trigger deportation as an aggravated felony.  See § 3.32, supra.  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.  See N. Tooby & J. Rollin, Safe Havens: How to Identify and Construct Non-Deportable Convictions § § 2.9-2.10 (2005).  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 disposition in a criminal case (a non-conviction 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.

 

A state court has suggested that pretrial probation cannot constitute a conviction because guilt is not established prior to pretrial probation order.[256]

 

Dispositions that do not constitute convictions include:

 

            (1)  Deferred prosecution. See § 3.34, infra.

            (2)  Deferred verdict. See § 3.35, infra.

            (3)  Deferred sentence.  See § 3.36, infra.

            (4)  Certain defective convictions. See § 3.37, infra.

            (5)  Acquittals.  See § 3.38, infra.

            (6)  Dismissal without plea or admission.  See § 3.39, infra.

            (7)  Conviction by court without competent jurisdiction.  See § 3.40, infra.

            (8)  Juvenile adjudications.  See § 3.41, infra.

            (9)  Convictions in absentia.  See § 3.42, infra.

(10)  Convictions that are non-final because direct appeal is or may be pending.  See § § 3.43-3.46, infra.

(11)  Convictions or sentences vacated by effective forms of post-conviction relief.  See § 3.47; Chapter 6, infra.

 

[256] Commonwealth v. Rodriguez, 802 N.E.2d 1039 (Mass. Feb. 10, 2004) (Supreme Court of Massachusetts suggests in dictum that Massachusetts pretrial probation would not be a “conviction” for immigration purposes since in granting the pretrial probation, “[g]uilt was not established in any fashion in this case.”).

BIA

DEFERRED ADJUDICATION - 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."

Lower Courts of Fourth Circuit

CONVICTION - PRETRIAL DIVERSION NOT A CONVICTION
Iqbal v. Bryson, ___ F.Supp.2d ___ (E.D. Va., Jan. 13, 2009) ("Had Petitioner been required to plead guilty or admit to facts surrounding the charges, New York's PDA and Texas' deferred adjudication program would be identical when analyzed under the statute. Instead of utilizing New York's deferred adjudication agreement, which does require the defendant to make a plea, Petitioner was involved in New York's PDA program, which has no such requirements. In as much as the Court finds that the first element required to establish a conviction under 1101(a)(48)(A) cannot be met, the Court need not analyze the second prong of punishment.").

Fifth Circuit

CONVICTION - FINALITY - FULL FAITH AND CREDIT ACT NOT VIOLATED BY SENTENCING COURT'S CONCLUSION STATE DEFERRED ADJUDICATION PROBATION DISPOSITION CONSTITUTES CONVICTION FOR PURPOSES OF ENHANCING FEDERAL SENTENCE UNDER 18
U.S.C. 841(b)(1)(A) United States v. Fazande, 487 F.3d 307 (5th Cir. May 18, 2007) (per curiam) (Texas guilty plea resulting in imposition of deferred adjudication probation constituted a "prior conviction" for purposes of sentence enhancement under 18 U.S.C. 841(b)(1)(A), rejecting claim that it did not constitute a final conviction under Texas law and the Full Faith and Credit Act; 28 U.S.C. 1738, required the federal criminal court to honor that conclusion, since "the principles that underlie the Full Faith and Credit Act are simply not implicated when a federal court endeavors to determine how a particular state criminal proceeding is to be treated, as a matter of federal law, for the purpose of sentencing the defendant for a distinct and unrelated federal crime."), following United States v. Jones, 415 F.3d 256, 265 (2d Cir. 2005) ("[T]he principles of federalism and comity embodied in the full faith and credit statute are not endangered when a sentencing court, not questioning the propriety of the state's determination in any way, interprets how to apply New York's youthful offender adjudications to a Guidelines analysis.") (internal citation and quotation marks omitted); United States v. Guthrie, 931 F.2d 564, 571 (9th Cir.1991) ("[D]octrines such as Full Faith and Credit, ... and related jurisdictional principles, are inapplicable ... where the issue is the role of prior state convictions in a federal sentencing scheme."); United States v. Carter, 186 Fed.Appx. 844, 847 (10th Cir.2006) (unpublished) ("It does not accord a state judgment less than full faith and credit for a federal court to determine its effect on a subsequent federal sentence under federal law."); see also United States v. Cisneros, 112 F.3d 1272, 1281 (5th Cir. 1997) (rejecting defendant's argument that "because he had successfully completed his two-year deferred adjudication probation," that offense "could not be used to enhance his punishment ... under 841(b)(1)(A)"); United States v. Morales, 854 F.2d 65, 68 (5th Cir. 1988) (the meaning of the phrase "have become final" in 18 U.S.C. 841(b)(1)(B) is a question of federal law, not state law).

Sixth Circuit

CONVICTION - COLLATERAL ATTACK IN REMOVAL PROCEEDINGS NOT PERMITTED
Al-Najar v. Mukasey, __ F.3d __, 2008 WL 245632 (6th Cir. Jan. 31, 2008) (petitioner's challenge to the state court conviction in immigration court constituted an impermissible collateral attack).

Seventh Circuit

CONVICTION - DEFERRED ADJUDICATION - GEORGIA FIRST OFFENDER ACT DISPOSITION CONSTITUTES CONVICTION
Ali v. U.S. Attorney General, ___ F.3d ___, 2006 WL 709870 (7th Cir. Mar. 22, 2006) (per curiam) (Georgia conviction of two counts of child molestation under Georgia First Offender Act, O.C.G.A. 42-8- 60, et seq., which allows a first-time felony offender to be placed on probation (or be sentenced to confinement) and serve out that probation or confinement without receiving an adjudication of guilt, constituted a conviction under INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A), for removal purposes).

Other

CONVICTION " NON-CONVICTION DISPOSITION " NO-PLEA DIVERSION
Practice Advisory. State no-plea diversion programs in which a defendants confession is not placed in the court file do not constitute convictions for immigration purposes under the statutory definition of conviction. INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A). The admission of facts referred to in this statute must mean an admission to the court, rather than to the prosecutor. It is possible, however, for an ICE attorney to ask the prosecutor for a copy and try to use it in removal proceedings to establish a conviction. An immigration judge could rule " wrongly " that when respondent agreed that the agreement admitting guilt could come into the court later, without objection, the noncitizen was admitting to the sufficiency of the facts in relation to a judicial proceeding sufficient to establish a conviction under the statute. In Maricopa County, Arizona, the drug diversion program does have the defendant sign a written confession, but that paper stays with TASC personnel (a private company), not the judge or the prosecutor. If the defendant completes the program, the TASC file is closed and only the certificate of completion is transmitted to the prosecutor. If the defendant fails the program, only then is the written confession transferred to the prosecutor, who then can use the written confession to re-start the prosecution. This system should be sufficient to avoid a conviction for immigration purposes. Thanks to Margarita Silva and Jonathan Moore.

IMMIGRATION CONSEQUENCES - NEW YORK DEFERRED ADJUDICATION
The New York City Bar Association issued a report calling for more pre-plea/deferred prosecution diversion programs (as opposed to deferred adjudication programs that require an upfront guilty plea and thus often leave immigrants deportable), since immigrants should have meaningful access to alternatives to incarceration that can also operate as alternatives to deportation. See http://www.nycbar.org/pdf/report/Immigration_Consequences_Report.pdf).