Safe Havens

 

Criminal cases can result in many different outcomes: dismissals without plea, various types of plea, trials, acquittals, convictions, sentences, appeals, deferred adjudication, expungements, and the like.  Many of the grounds of deportation are established only if a conviction results from a criminal prosecution.  If a criminal case results in a disposition other than a conviction, then none of the conviction-based grounds of deportation can be established.  (As always, counsel must still ensure that the noncitizen’s conduct does not trigger a conduct-based ground of deportation.)[7]

 

            Before the outcome of a criminal case can be considered a conviction, for immigration purposes, it must meet the statutory definition of “conviction” contained in the Immigration and Nationality Act.[8]  A number of dispositions in criminal cases do not constitute a “conviction” under this definition for purposes of deportation:

 

                                    Juvenile delinquency findings

                                    Acquittal

                                    Dismissal before conviction                                 

                                    Deferred prosecution

Deferred verdict

                                    Deferred sentence

                                    Judicial Recommendations Against Deportation

                                    Non-final dispositions

                                                Direct appeal

                                                Late appeal

                                    Pardoned offenses

                                    State rehabilitative relief

                                    Convictions vacated as legally invalid.

 

For a discussion of these various dispositions in criminal cases that do not constitute convictions for purposes of deportation, see Chapter 4, infra.

            Since these dispositions do not constitute convictions, they cannot trigger deportation under any of the conviction-based grounds of deportation.  See § 2.8, infra.[9]  The non-conviction dispositions themselves do not establish that any conduct occurred, and therefore cannot establish the existence of any conduct-based ground of deportation, but counsel should as always examine the conduct-based grounds, see § § 2.9-2.10, infra, and the two grounds based on a civil court [10] or administrative finding,[11] to verify that the underlying conduct or proceedings do in fact trigger deportation under the non-conviction based grounds of deportation.

[7] See § 2.10, infra, for a checklist of conduct-based grounds of deportation.

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

[9] These conviction-based grounds of deportation are also defined in Appendix A, infra, [1], [3]-[6], [9], [10], [15]-[17], [20], [31], [33], [34], [39], [44], [45], [48], [50], [51].

[10] There is one civil court order-based ground of deportation: a court order finding a noncitizen has violated a certain portion of a domestic-violence protection order after a certain date.  INA § 237(a)(2)(E)(ii), 8 U.S.C. § 1227(a)(2)(E)(ii); Appendix A [7], infra.

[11] There is one ground of deportation based on a finding of an administrative tribunal: a noncitizen who is the subject of a “final order” for violation of INA § 274C, 8 U.S.C. § 1324c (document fraud). INA § 237(a)(3)(C)(i), 8 U.S.C. § 1227(a)(3)(C)(i); Appendix A [13], infra.