Deferred prosecution is a phrase that describes a situation in which prosecution and defense negotiate an agreement with the following elements:

 

            (1)  No plea of guilty or no contest is entered.

 

            (2)  The defendant makes no admission of facts sufficient to support a conviction for any offense.

 

            (3)  The defendant waives any right to speedy disposition of the criminal case.

 

            (4)  Both sides agree to postpone criminal proceedings for an agreed-upon period, such as six months or one year, during which time the defendant will comply with certain conditions.  These conditions can be simple, such as “obey all laws,” or more demanding, such as successful completion of a residential drug program or payment of specified restitution.

 

            (5)  The initial agreement provides that if the defendant successfully complies with the specified conditions during the period of deferred prosecution, the prosecution will dismiss all charges without entry of a plea or verdict.

 

            (6)  The court postpones the case for the agreed period.  This is normally the only agreement required from the court.

 

            (7)  After successful completion of the deferred prosecution agreement, the prosecution moves to dismiss all charges.  Typically, the prosecution has virtually total authority over the bringing and dismissal of charges, and the court will generally have no authority to refuse to dismiss charges when both sides agree.

 

            Successful completion of a deferred prosecution agreement does not constitute a conviction under the statutory definition of conviction for immigration purposes, because the defendant completes the required conditions and obtains a dismissal of all charges.  No plea of guilty or no contest has been entered at any time.  There has been no admission of facts sufficient to support a conviction.  There has never been a verdict of guilty entered.  The elements of the statutory definition of conviction have not been met.  See § 3.32, supra.  There is therefore no conviction for immigration purposes.

 

            As a general matter, the rules to remember for New York convictions are:

 

            (1)  Adjournment in Contemplation of Dismissal (ACD) is a pre-plea disposition and not a conviction for immigration purposes;

 

Since foreign nationals who fail to comply with ACD face criminal consequences, the immigration authorities are likely to treat applicants on ACD as potentially subject to immigration consequences and deny applications for immigration benefits on the basis that there is no certainty that they will satisfactorily comply with the program. ACDs almost always result in dismissal. If not, the case will be placed on calendar and is tried or disposed of by plea as with any other criminal case.

 

            (2) Conditional Discharge (CD) is a post-plea disposition and is a conviction for immigration purposes;

 

            (3) Youthful Offender (YO) is not a conviction for immigration purposes.

For example, an “Adjournment in Contemplation of Dismissal” or “ACD” under New York law is an immigration-neutral disposition in that it is a pre-plea disposition in which the prosecution eventually dismisses the case after a specified period of time (usually six months or a year) without ever taking any plea on the issue of guilt or making any determination of guilt.  During the ACD period, the criminal case is open.

CAL POST CON - DIVERSION - NO-PLEA DOMESTIC VIOLENCE DIVERSION
No "admission of guilt" was required under this domestic violence no-plea diversion statute. Penal Code 1001.6(c). It was enacted by Stats. 1979, c. 913, p. 3141, 1, last amended by Stats. 1993, c. 221, 1, and repealed in 1995, repeal effective Jan. 1, 1996.

BIA

CONVICTION - DEFERRED ADJUDICATION
Matter of Thomas, 24 I.& N. Dec. 416, 419 (BIA Dec. 13, 2007) (second possession conviction can constitute aggravated felony, under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B) (2000), even if court withheld adjudication on first possession conviction), citing United States v. Mejias, 47 F.3d 401, 404 (11th Cir. 1995) (plea to a felony drug charge under Florida law constitutes a valid prior "conviction" for purposes of the CSAs recidivism provisions, even if the trial court withheld adjudication of guilt).

Ninth Circuit

CONVICTION - PRETRIAL DIVERSION
Melendez v. Gonzales, __ F.3d __, 2007 WL 2713121 (9th Cir. Sept. 19, 2007) (a noncitizen may not obtain a Lujan expungement for immigration purposes on a second offense were the noncitizen has already been given "pretrial diversion" treatment on a prior offense, even though "pre-trial diversion" does not require the noncitizen to enter a plea of guilty to a controlled substances offense).

Other

CONVICTION - NO-PLEA DIVERSION - CONNECTICUT
The Family Violence Education Program (FVEP) under Conn. Gen. Stat. 54-56e is a pre-trial diversionary program. When a defendant enters this program, s/he is not required to enter a guilty plea on the record. It is typically a one-year program where certain requirements must be met, including taking domestic violence classes, avoiding any other arrest, etc. It is not a conviction in Connecticut and should not be considered a conviction for immigration purposes as long as the program was successfully completed, since it does not meet the statutory requirements of a conviction under immigration law because no plea or admission was entered at any time. INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A).

CONVICTION " NO-PLEA DIVERSION PROGRAMS " PRACTICE ADVISORY
Practice Advisory on Arizona TASC and similar programs: 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. In Maricopa County, Arizona, the drug diversion program requires the defendant to 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. Note that it is possible, however, for an ICE attorney to ask the prosecutor for a copy of the confession, to use 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. Thanks to Kathy Brady, Immigrant Legal Resource Center.