Aggravated Felonies

An act of juvenile delinquency is not regarded as a crime, and a person who is regarded under local law as a juvenile offender or juvenile delinquent has not been convicted of a crime for immigration purposes.  Findings of juvenile delinquency made in juvenile, as opposed to adult, court do not constitute convictions of criminal offenses for immigration purposes. 

The age of a noncitizen at the time of conviction of a crime is irrelevant to a determination of the moral turpitude of the crime, and the mere fact that a noncitizen was a minor at the time s/he committed an offense has generally been held to be irrelevant to characterization of the offense as a conviction for immigration purposes, so long as the conviction was in adult court.[268] 

A conviction in adult court without proof of age, however, may be without jurisdiction.[269]  On the other hand, it may be held that the juvenile waived this objection to adult criminal court jurisdiction by failing to assert it in a timely manner.

            International law may provide a defense to removal of juveniles, where an argument can be made that removal is not in the best interests of the child.[270]

[268] Vieira-Garcia v. INS, 239 F.3d 409 (1st Cir. 2001) (conviction as an adult for an offense committed when the defendant was seventeen years old was considered a conviction for purposes of immigration law, and the fact that the defendant might have been treated as a juvenile in another jurisdiction did not violate his right to equal protection); Orlando v. Robinson, 262 F.2d 850 (7th Cir. 1959), cert. denied, 359 U.S. 980, 79 S.Ct. 898 (1950); United States ex rel. Circella v. Sahli, 216 F.2d 33 (7th Cir. 1954), cert. denied, 348 U.S. 964, 75 S.Ct. 525 (1955) (where defendant convicted at age 18 of “robbery” and sentenced to 1 to 14 years in an Illinois reformatory, the court rejected the argument that he should not be deported since the deportation statute was not intended to apply to minors); United States ex rel. McKenzie v. Savoretti, 200 F.2d 546 (5th Cir. 1952) (court refused to consider a contention that convictions in the West Indies were actually for juvenile delinquency, and that the defendant was tried and convicted as an adult offender only because a juvenile court had not been set up in that jurisdiction); Orabona v. Clark, 53 F.2d 101 (D.R.I. 1931), rev’d on other grounds, 59 F.2d 187 (1st Cir. 1932), cert. denied, 287 U.S. 629, 53 S.Ct. 82 (1932); United States ex rel. Morlacci v. Smith, 8 F.2d 663 (D.N.Y. 1925); United States ex rel. Sirtie v. Commissioner of Immigration, 6 F.2d 233 (D.N.Y. 1925).  See also Morasch v. INS, 363 F.2d 30 (9th Cir. 1966) (where a noncitizen had been convicted at age 18 of petit larceny under a statute which gave the court discretion to try offenders as juveniles, but the state court had elected to try him as an adult, the offense was held to be a crime involving moral turpitude for purposes of deportation); Khalaf v. INS, 361 F.2d 208 (7th Cir. 1966) (court affirmed the AG’s refusal to allow a noncitizen convicted in Jordan twice before his sixteenth birthday of petty theft charges to depart from the country voluntarily in lieu of deportation, without considering the minor’s age at the time of commission of the offense).  A minor convicted in adult court of a crime involving moral turpitude, however, may be inadmissible or removable if the court expressly finds the minor unfit for the existing juvenile proceedings and treats the minor as an adult offender.  See Matter of CM, 5 I. & N. Dec. 327 (BIA 1953); Morasch v. INS, 363 F.2d 30 (9th Cir. 1966).

[269] United States v. Ceja-Prado, 333 F.3d 1046 (9th Cir. June 25, 2003) (where proof of defendant’s age is lacking, and s/he may have been a juvenile at the time the crime was committed, and there may be no federal jurisdiction over defendant’s case pursuant to the Federal Juvenile Delinquency Act, 18 U.S.C. § 5031).

[270] Oliva v. U.S. Dep’t of Justice, 433 F.3d 229 (2d Cir. Dec. 30, 2005) (U.N. Convention on the Rights of the Child had not achieved the status of customary international law so as to require immigration authorities to give “the best interests” of the child “primary consideration” in deciding whether to order removal of the child).