(A)  In General.  A conviction rendered in absentia, without adequate notice to the defendant, will not trigger deportation.[303]  The failure to attend trial where notice and an opportunity to be present were provided, however, will not preclude the use of a conviction rendered in absentia.[304] 

[303] Ex parte Koerner, 176 Fed. 478 (E.D. Wash. 1909); Ex parte Watchorn, 160 Fed. 1014 (S.D.N.Y. 1908); Matter of Piraino, 12 I. & N. Dec. 508 (BIA 1967) (Italian); 22 C.F.R.

§ 40.21(a)(4).

[304] Weinbrand v. Prentis, 4 F.2d 778 (6th Cir. 1925) (conviction held valid when testimony was taken in the absence of the respondent, who had been given notice and an opportunity to be present); Matter of Romandia-Herreros, 11 I. & N. Dec. 772 (BIA 1966) (Mexican narcotics conviction not considered in absentia when court had personal jurisdiction over defendant, even though he was prosecuted in a foreign country for an offense committed in the United States); Matter of VDB, 8 I. & N. Dec. 608 (BIA 1960) (conviction considered valid, though defendant was not present, where he had notice of the proceeding, appeared in court after its conclusion, failed to appeal, and paid the fine).

Fourth Circuit

NATURE OF CONVICTION " RECORD OF CONVICTION " RESPONDENTS EVIDENCE DURING REMOVAL PROCEEDINGS
Mondragon v. Holder, 706 F.3d 535 (4th Cir. Jan. 31, 2013) (respondents sworn evidence concerning the offense conduct did not constitute part of the record of conviction on the basis of which the immigration authorities determine whether his Virginia conviction for assault and battery, in violation of Virginia Code 18.2"57, constituted an aggravated felony crime of violence for immigration purposes). NOTE: This case demonstrates the problems with placing the burden on a respondent in removal proceedings seeking relief where the record of conviction is inconclusive. The statute in this case makes punishable anyone who commits assault and battery or simple assault. The court found that Mondragon could not present facts to show the offense did not involve the use of violent force. The Court arguably erred here when applying the categorical and modified categorical analysis; although the court was arguably correct that the Virgina statute contained more than one set of elements, the court did not address the minimum conduct analysis, i.e., that the minimum conduct necessary to convict under either set of elements was insufficient to constitute an aggravated felony crime of violence.

REMOVAL PROCEEDING " BURDEN OF PROOF " RELIEF
Mondragon v. Holder, 706 F.3d 535 (4th Cir. Jan. 31, 2013) (respondents sworn evidence concerning the offense conduct did not constitute part of the record of conviction on the basis of which the immigration authorities determine whether his Virginia conviction for assault and battery, in violation of Virginia Code 18.2"57, constituted an aggravated felony crime of violence for immigration purposes). NOTE: This case demonstrates the problems with placing the burden on a respondent in removal proceedings seeking relief where the record of conviction is inconclusive. The statute in this case makes punishable anyone who commits assault and battery or simple assault. The court found that Mondragon could not present facts to show the offense did not involve the use of violent force. The Court arguably erred here when applying the categorical and modified categorical analysis; although the court was arguably correct that the Virgina statute contained more than one set of elements, the court did not address the minimum conduct analysis, i.e., that the minimum conduct necessary to convict under either set of elements was insufficient to constitute an aggravated felony crime of violence.

Ninth Circuit

CONVICTION - JUVENILE
United States v. Jose D.L., __ F.3d __ (9th Cir. Jun. 30, 2006) (district court finding that defendant was a juvenile delinquent for drug-related offenses reversed in part and remanded for further proceedings as to "harmless error" analysis where government officials committed multiple violations of the Juvenile Delinquency Act (JDA)). http://caselaw.lp.findlaw.com/data2/circs/9th/0550597p.pdf