The statutory definition of “conviction” includes a formal judgment of guilt, which invariably includes sentence.  See § 3.32(C), supra.  It also, however, includes as convictions dispositions in which formal judgment or adjudication has been withheld, but only when the judge has ordered some form of punishment, penalty, or restraint on the noncitizen’s liberty to be imposed.  See § 3.32(D), supra.[257]  The punishment, penalty, or restraint on the noncitizen’s liberty ordered by the court must be ordered as a punishment for or because of the plea or admission.  If no sentence has been imposed on the defendant as a result of the plea or admission, the defendant does not have a final conviction for immigration purposes. See § 3.32(G), supra.[258] 

 

“Deferred sentence,” consists of a postponement of the criminal proceedings granted prior to entry of judgment or sentence.  Defense counsel can agree with prosecution and court to take a plea of guilty and then defer sentence for an agreed period on agreed conditions.  The statutory definition of conviction requires imposition of some punishment, penalty or restraint before a conviction comes into existence.  See § 3.32(G), supra.  The lack of a sentence therefore deprives the disposition of one of the statutory elements required to constitute a “conviction” under the new immigration-law definition.

 

            “Deferred sentence” involves entry of a plea of guilty or no contest, but deferral of sentence.  In order to constitute a conviction, the new definition requires a plea of guilty or no contest, or a verdict of guilty, and also requires that “the judge has ordered some form of punishment, penalty or restraint on the alien’s liberty to be imposed.”[259]  If the court defers making any such order imposing punishment or restraint on liberty, until after an agreed deferral period of time has passed, and then dismisses all charges, without ever imposing any form of punishment or restraint, no “conviction” occurred at any time under the new definition.  Note that any conditions of this arrangement that involve any “restraint on the alien’s liberty” could not be imposed by court order; they may be included in a private agreement between prosecution and defense, however, as long as the court does not order them.  When they have been satisfied, prosecution and defense could jointly move the court to dismiss all charges.

 

            While the defendant may be under some form of restraint, such as release on bail conditions or on personal recognizance, this restraint is not imposed as a result of the entry of the plea, and thus should not be considered as sufficient punishment, penalty, or restraint to satisfy the sentence requirement of the statutory definition of conviction.

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

[258] 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); see also Parr v. United States, 351 U.S. 513, 518, 76 S.Ct. 912, 916 (1956) (“Final judgment in a criminal case means sentence.”) (quoting Berman v. United States, 302 U.S. 211, 212, 58 S.Ct. 164 (1937)); United States v. Douglas, 974 F.2d. 1046, 1048 n.2 (9th Cir. 1992), citing United States v. Gottlieb, 817 F.2d 475, 476 (8th Cir. 1987) (orders regarding a guilty plea are not final decisions until after sentencing); Aguilera-Enriques v. INS, 516 F.2d 565, 571 (6th Cir. 1975) (“Once a sentencing [on a guilty plea] is completed . . . the conviction is final for deportation purposes.”).

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

Fifth Circuit

SENTENCE - PROBATION
United States v. Mondragon-Santiago, ___ F.3d ___, 2009 WL 782894 (5th Cir. Mar. 26, 2009) ("Deferred adjudication probation in Texas does not impose a sentence of imprisonment, and thus does not involve a term of imprisonment. From this analysis we conclude that Mondragon-Santiago's four years of deferred adjudication probation under Texas law is not a term of imprisonment under 1101(a)(48)(B), and thus is not an aggravated felony under 1101(a)(43)(F).").