(D)  List of Offenses for Which Juvenile May Be Transferred to Adult Court Under the FJDA.  Unless the offense is on the following list, a state adult conviction of a juvenile arguably cannot be considered a “conviction” for immigration purposes:

 

(1)  Offenses Committed After Fifteenth Birthday: Transfer of a juvenile to United States District Court for adult criminal proceedings is discretionary[285] if (a) s/he is alleged to have committed an act of juvenile delinquency “after” his or her fifteenth birthday, (b) the act would be a felony if committed by an adult,[286] and (c) the charge constitutes a “crime of violence,”[287] certain enumerated controlled substances offenses, [288] or certain enumerated firearms offenses.[289]

 

(2)  Offenses Committed After Thirteenth Birthday: Transfer of a juvenile, who committed the act “after” his or her thirteenth birthday, to United States District Court for adult criminal proceedings is discretionary if s/he committed an enumerated crime of violence,[290] or if the juvenile possessed a firearm during an enumerated offense.[291]

 

            Courts will use the same definition in interpreting “crime of violence” under the Federal Juvenile Delinquency Act as under the aggravated felony definition, which is set forth in 18 U.S.C. § 16.  A “categorical” approach focusing on the elements of the crime, rather than considering the facts of the case, is used to determine whether an offense is a crime of violence.[292]  Title 18 U.S.C. § 16 defines a crime of violence as:

 

(a)  an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(b)  any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.[293]

 

See § § 5.14-5.33, infra.

 

[285] 18 U.S.C. § 5032 (fourth paragraph).

[286] Under federal law, a felony is defined as an offense for which a sentence in excess of one year may be imposed.  18 U.S.C. § 3559(a)(5).  If the maximum is one year in custody, the offense is defined as a misdemeanor.  18 U.S.C. § 3559(a)(6).

[287] The standard for interpreting “crime of violence” is the same in this context as in other contexts.  United States v. MCE, 232 F.3d 1252 (9th Cir. 2000); see 18 U.S.C. § 16; United States v. Baker, 10 F.3d 1374 (9th Cir. 1993) (holding conspiracy was not always a crime of violence, under a categorical analysis, and the juvenile therefore could not be transferred to adult court even though overt acts included acts of violence); see also United States v. David H., 29 F.3d 489 (9th Cir. 1994) (finding that the statutory elements of robbery under California Penal Code  § 211 involved an element of “threatened use of physical force against the person of another”); but see United States v. Juvenile Male, 118 F.2d 1344 (9th Cir. 1997) (examining object of RICO conspiracy to commit Hobbs Act robberies to find a substantial risk of physical force).

[288] These are offenses “described in” 21 U.S.C. § 841 (manufacture, distribution, or possession with intent to distribute a controlled or counterfeit substance), 21 U.S.C. § 952(a) (importation of controlled substances or narcotic drugs but not others), 21 U.S.C. § 955 (possession of certain undeclared controlled substances or narcotic drugs on vessels or aircraft arriving in United States), 21 U.S.C. § 959 (manufacture or distribution of certain chemicals with knowledge or intent that they be illegally imported into the United States).

[289] These are 18 U.S.C. § 922(x) (sale or transfer of handgun or handgun ammunition to juvenile; knowing possession by juvenile of handgun or handgun ammunition), 18 U.S.C. § 924(b) (transportation or receipt of firearm or ammunition in interstate or foreign commerce with intent or knowledge that it will be used to commit a felony), 18 U.S.C. § x924(g) (interstate or foreign travel to attempt to obtain a firearm with intent to commit RICO offense, crime of violence, or any state or federal controlled substances offense), and 18 U.S.C. § 924(h) (transfer of firearm with knowledge it will be used to commit a crime of violence or drug trafficking offense).

[290] Transfer is allowed if the offense is a crime of violence under 18 U.S.C. § 113(a) (presumably this refers to assault with intent to commit murder, currently under § 113(a)(1), as listed under prior statutory numbering system), § 113(b) (presumably this refers to assault with intent to commit any felony, currently under § 113(a)(2), as listed under prior statutory numbering system), § 113(c) (presumably this refers to assault with a dangerous weapon, with intent to do bodily harm, and without just cause or excuse, currently under § 113(a)(3), under prior statutory numbering system), § 1111 (first- and second-degree murder), and § 1113 (attempt to commit murder or manslaughter).

[291] These are an offense described in 18 U.S.C. § 2111 (robbery and attempted robbery), § 2113 (bank robbery and attempted robbery), § 2241(a) (aggravated sexual abuse by force or threat), or § 2241(c) (child sexual abuse).

[292] United States v. MCE, 232 F.3d 1252 (9th Cir. 2000); United States v. Gonzalez-Lopez, 911 F.2d 542 (11th Cir. 1990); Matter of Alcantar, 20 I. & N. Dec. 801 (BIA 1994); Matter of Palacios-Pinera, 22 I. & N. Dec. 434 (BIA 1998).

[293] 18 U.S.C. § 16 (emphasis supplied).

Second Circuit

CONVICTION - JUVENILE
Savchuk v. Mukasey, 518 F.3d 119 (2d Cir. Mar. 4, 2008) (New York conviction of grand larceny in the Fourth Degree, in violation of Section 155.30 of the New York Penal Law, a Class E felony, constituted a conviction, under INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A), for deportation purposes under INA 237(a)(2)(A)(ii), 8 U.S.C. 1227(a)(2)(A)(ii) for multiple CMT convictions, despite the fact that it was committed while the noncitizen was under the age of 18 years, since he pled guilty after he turned eighteen and New York treated him as an adult offender, rejecting the argument that if this case had arisen under federal criminal law, the Federal Juvenile Delinquency Act would not have permitted transfer to adult court, and the federal juvenile adjudication would not have been considered a conviction for immigration purposes).

The court stated: "While Savchuck's approach is inventive, it finds no support in the text of 8 U.S.C. 1101(a)(48)(A) . . . . The statute encompasses state court adjudications and does not sanction disregarding them because of the theoretical possibility that criminal conduct might be treated differently by federal authorities. Savchuck's position has been rejected by the First and Ninth Circuits. See Vieira Garcia v. INS, 239 F.3d 409, 413 (1st Cir. 2001) ("Once adjudicated by the state court, as either a juvenile or an adult, we are bound by that determination."); Vargas-Hernandez v. Gonzales, 497 F.3d 919, 923 (9th Cir. 2007) (finding state treatment of petitioner as adult determinative). We join these Circuits and hold that, because Savchuck's grand larceny conviction qualifies as a conviction under 8 U.S.C. 1101(a)(48)(A), the BIA correctly found him removable." (Savchuk v. Mukasey, 518 F.3d 119, 122 (2d Cir. Mar. 4, 2008).

CONVICTION - JUVENILE - NEW YORK YOUTHFUL CONVICTION PROPERLY CONSIDERED AGGRAVATED FELONY FOR ILLEGAL REENTRY SENTENCE ENHANCEMENT PURPOSES
United States v. Pereira, 465 F.3d515, 2006 WL 2925642 (2d Cir. Oct. 13, 2006)( New York conviction of robbery, with term of imprisonment of 62 months, constituted aggravated felony conviction for purposes of 16-level illegal reentry sentence enhancement, even though the defendant was adjudicated a youthful offender under New York State law).
http://caselaw.lp.findlaw.com/data2/circs/2nd/055969p.pdf

JUVENILES - CONSIDERATION OF JUVENILE DEFENSES IN DENIAL OF RELIEF AS A MATTER OF DISCRETION
Wallace v. Gonzales, __ F.3d __, 2006 WL 2588018 (2nd Cir. Sept. 1, 2006) (adjudication as a "Youthful Offender" under New York State criminal law, N.Y.Crim. Proc. Law 720.10-720.35, may be used in determining whether noncitizen should be granted adjustment of status as a matter of discretion, even those the adjudication is not a "conviction" for removability purposes).

Sixth Circuit

JUVENILES " CONVICTION " EXISTENCE OF CONVICTION
Hanna v. Holder, 740 F.3d 379 (6th Cir. Jan. 17, 2014) (adjudication under Michigan's Holmes Youthful Trainee Act (YTA), Mich. Comp. Laws 762.11"16, is a conviction under the INA, since it is more similar to a deferred adjudication for youthful offenders than a true finding of juvenile delinquency); following Uritsky v. Gonzales, 399 F.3d 728, 735 (6th Cir. 2005) (YTA adjudications are convictions under 8 U.S.C. 1101(a)(48)(A), because they are not analogous to determinations of juvenile delinquency under the Federal Juvenile Delinquency Act (FJDA), 18 U.S.C. 5031"42).

Seventh Circuit

CONVICTION"JUVENILE
Rangel-Zuazo v. Holder, 2012 WL 432283 (7th Cir. Feb. 13, 2012) (unpublished) (state decision to try a youthful offender as a juvenile or as an adult determines whether juvenile has suffered a "conviction" for purposes of removal under the INA; federal immigration law distinctions between juvenile and adult offenders, and between minors tried as juveniles and those tried as adults, are rational and do not violate the Equal Protection Clause).

RELIEF - NATURALIZATION - GOOD MORAL CHARACTER - AGGRAVATED FELONY BAR
O'Sullivan v. U.S. Citizenship & Immigration Serv., 453 F.3d 809 (7th Cir. Jul. 6, 2006) (affirming denial of naturalization where Congress has called for de novo review of naturalization cases; wartime veterans are not excused from showing good moral character before naturalizing; CIS regulation setting forth a time period for which a wartime veteran must show good moral character was a valid exercise of delegated power; and aggravated felony bar applies to wartime veterans). http://caselaw.lp.findlaw.com/data2/circs/7th/052943p.pdf

Ninth Circuit

JUVENILE - ADJUDICATION REVERSED FOR DEPRIVATION OF RIGHTS UNDER FJDA TO IMMEDIATE NOTIFICATION AND PROMPT ARRAIGNMENT, AND TO THE RIGHT TO ADVISE FROM RESPONSIBLE ADULT PRIOR TO INTERROGATION REQUIRING SUPPRESSION OF C
United States v. C.M., 485 F.3d 492 (9th Cir. May 8, 2007) (adjudication of delinquency of a juvenile Mexican national for transporting illegal aliens and related counts is reversed, and the juvenile information dismissed, where the juvenile was deprived of his rights under the Juvenile Delinquency Act to immediate notification and prompt arraignment, and to the advice and counsel of a responsible adult prior to interrogation; and a resulting confession was highly prejudicial and should not have been used against him to initiate his proceedings).

JUVENILE - FEDERAL - TRANSFER TO ADULT COURT
United States v. Juvenile, __ F.3d __ (9th Cir. Jun. 22, 2006) (district court may assume a juvenile's guilt of the crime charged for purposes of a motion to transfer a juvenile to adult status pursuant to 18 U.S.C. 5032 for criminal prosecution; assumption may not be expanded beyond the offense or offenses charged in the information). http://caselaw.lp.findlaw.com/data2/circs/9th/0530410p.pdf

JUVENILES - FEDERAL - TRANSFER TO ADULT COURT
United States v. Juvenile, ___ F.3d ___ (9th Cir. Jun. 22, 2006) (in deciding whether to transfer juvenile to adult court pursuant to 18 U.S.C. . 5032 for criminal prosecution, district court may, but is not required to, assume guilt; if it does, it must confine the assumption to the elements of the offense charged).

Eleventh Circuit

CONVICTION - ADULT CONVICTION OF JUVENILE
Singh v. U.S. Atty. Gen., ___ F.3d ___, ___, 2009 WL 604370 (11th Cir. Mar. 10, 2009) (per curiam) (a conviction of a noncitizen in adult court constitutes a conviction for immigration purposes, under INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A), no matter how old the person was at the time of the commission of the offense); accord, Vieira Garcia v. INS, 239 F.3d 409, 413-414 (1st Cir. 2001) (petitioner who was 17 years old at the time of the offense and who was convicted as an adult in Rhode Island, had suffered a conviction for immigration purposes because the INA's definition of conviction was clear and unambiguous, the immigration authorities were bound by the state court's determination to adjudicate the petitioner as an adult: "if Congress had wanted the INS to follow the FJDA at all times, it would have so stated."); Vargas-Hernandez v. Gonzales, 497 F.3d 919, 922-23 (9th Cir. 2007) (16 year-old's state court conviction as an adult constituted a conviction under INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A)); Savchuck v. Mukasey, 518 F.3d 119, 122 (2d Cir. 2008) (definition of conviction under INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A), includes state court convictions and "does not sanction disregarding them because of the theoretical possibility that criminal conduct might be treated differently by federal authorities.").

CONVICTION - JUVENILE - ADULT COURT CONVICTION OF JUVENILE CONSTITUTES A CONVICTION FOR IMMIGRATION PURPOSES
Singh v. U.S. Att'y Gen., 553 F.3d 1369 (11th Cir. Dec. 31, 2008) (conviction rendered in adult court constitutes a conviction for immigration purposes, no matter how old the noncitizen was at the time of the offense).

INADMISSIBILITY - REASON TO BELIEVE - ADMISSION OF RESPONDENT - YOUTH CORRECTIONS ACT DOES NOT PRECLUDE IMMIGRATION COURT FROM USING RESPONDENT'S ADMISSIONS TO ESTABLISH REASON TO BELIEVE GROUND OF INADMISSIBILITY
Castano v. INS, 956 F.2d 236 (11th Cir. 1992) (factual admissions could properly be considered by immigration courts in establishing the "reason to believe" ground of inadmissibility where a noncitizen's plea did not result in a conviction under the former Federal Youth Corrections Act: "We conclude that conviction and sentencing under the FYCA ought not actually improve petitioner's immigration status by disallowing the admission of the factual basis merely because of the invocation of the FYCA. (emphasis in original)."); contra, Matter of Seda, 17 I. & N. 550 (BIA 1980)(guilty plea cannot have greater consequences than the ultimate disposition of a case), modified on other grounds Matter of Ozkok, 19 I. & N. Dec. 546 (BIA 1988).

Other

CONVICTION - JUVENILE OFFENSES
Congress knows how to include adjudications of juvenile delinquency when it wishes to do so. For example, Congress recently provided, with respect to a specific new statute, that "The term `convicted' or a variant thereof, used with respect to a sex offense, includes adjudicated delinquent as a juvenile for that offense, but only if the offender is 14 years of age or older at the time of the offense and the offense adjudicated was comparable to or more severe than aggravated sexual abuse (as described in section 2241 of title 18, United States Code), or was an attempt or conspiracy to commit such an offense." The Adam Walsh Child Protection and Safety Act of 2006, H.R. 4472, Pub. L. 109-248, 111(8) (July 27, 2006).

CONVICTION - JUVELINE DELINQUENCY NOT A "CONVICTION"
United States v. Davis, 234 F.Supp.2d 601 (E.D.Va.2002), affirmed 359 F.3d 340 (4th Cir. 2002) (adjudications of juvenile delinquency, under Virginia law, did not constitute prior "convictions" sufficient to constitute predicate conviction for federal offense of being felon in possession of firearm).

GOOD MORAL CHARACTER - CHILD - PRESUMPTION
A child who is less than 14 years of age is presumed to be a person of good moral character and is not required to submit affidavits of good moral character, police clearances, criminal background checks, or other evidence of good moral character. INA 204.2(e)(2)(iv).

INADMISSIBILITY - VISA FRAUD - FRAUD BY MINORS
When the child is under 18, there is a good argument that he or she cannot knowingly commit fraud. If someone else (but not the child) indicated that the child was a USC by presenting a USC birth certificate at the border, the child did not make a false claim to United States citizenship, or engage in visa fraud, but merely made an EWI entry. Thanks to Leonor Perretta.

CRIM DEF - JUVENILE
National Juvenile Defender Center has recently updated their Juvenile Delinquency Notebook, available here: http://www.njdc.info/publications.php