(B)  Consular Processing.  For visa processing purposes, the Foreign Affairs Manual provides:

 

            A conviction in absentia does not constitute a conviction.  However, any participation in judicial proceedings by the accused may imply that the conviction was not one made in absentia.  For example, if a conviction in absentia has been appealed by the person convicted, the person has appeared for that purpose and the conviction has been affirmed, it is no longer considered a conviction in absentia.  Similarly, representation by the accused in a trial proceeding may preclude a finding that the trial was conducted in absentia.  Consular officers shall submit all cases where the facts suggest that a conviction may have been made in absentia to CA/VO/L/A for an advisory opinion.[305]

 

The same law should apply to the question of deportability on account of a conviction.

 

[305] 9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a) N3.4-2.

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