Safe Havens

 

In 1996, for the first time, Congress enacted a statutory definition of “conviction.”[72]  This statute modified the BIA’s definition of “conviction” handed down in Matter of Ozkok.[73]  The term “conviction” has the same meaning for purposes of both inadmissibility and deportability,[74] and for all other immigration consequences as well.  It includes a formal judgment of guilt, but also exists under certain circumstances when judgment has been withheld.

 

The statute defines a conviction for immigration purposes, in a case where adjudication has been withheld, as existing when two requirements are met:

 

(1)  a judge or jury has found the noncitizen guilty, or the noncitizen has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt; and

(2)   the judge has ordered some form of punishment, penalty, or restraint on the noncitizen’s liberty to be imposed.[75]

 

A plea of guilty entered under North Carolina v. Alford,[76] without any factual admission of guilt, still satisfies the plea part of the new definition of conviction.[77]

 

The BIA has recently held that the phrase “judgment of guilt”[78] requires that the judgment be issued as part of a criminal proceeding, i.e., “a trial or other proceeding whose purpose it to determine whether the accused committed a crime and which provides the constitutional safeguards normally attendant upon a criminal adjudication.”[79]  See § 4.11, supra.

 

Some states may also have dispositions that do not meet the definition of “conviction” because the criminal court never makes a finding of guilt.  New York’s “Adjournment in Contemplation of Dismissal” (ACD), for example, is a pre-plea disposition in which the prosecution eventually dismisses the case after a specified period of time without ever taking any plea on the issue of guilt or making any determination of guilt.  The criminal case cannot be considered final during this period, and this procedure results in a dismissal once the conditions of the ACD are satisfied.  Failure to meet the conditions means only that the case proceeds to trial or plea as usual.

 

The definition of conviction applies to “convictions and sentences entered before, on, or after” September 30, 1996, the date the IIRAIRA was enacted.[80]  One court has held this definition retroactively applicable to convictions occurring before the passage of this legislation.[81]  This conclusion has been cast into some doubt by INS v. St. Cyr.[82] 

 

In the context of an illegal re-entry case, the Ninth Circuit laid the foundations for possible subsequent challenges to the retroactive application of the aggravated felony definition.[83]  Despite the finding in St. Cyr that “IIR[A]IRA’s amendment of the definition of ‘aggravated felony’. . . clearly states that it applies with respect to ‘convictions entered on, before, or after’ the statute’s enactment date,”[84] the concurring opinion in Ubaldo-Figueroa found there was still a plausible due process argument that the expressly imposed retroactivity of the aggravated felony definition is unconstitutional, since “[t]he Due Process clause of the Fifth Amendment forbids Congress from enacting legislation expressly made retroactive when the ‘retroactive application [of the statute] is so harsh and oppressive as to transgress the constitutional limitation.’”[85]

 

            The definition of a “sentence” is governed by federal law and includes all parts of a sentence of imprisonment that are ordered, even if they are not served, irrespective of the label attached to them under state law.[86]  Therefore, where the requirements of the federal statute have been met, the disposition will be considered a “conviction” for immigration purposes, even if it is not considered to be a conviction under the law of the state or jurisdiction under which the disposition occurred.

If no sentence has been imposed, the defendant does not have a final conviction for immigration purposes.[87]

 

The statute defining “sentences” provides that:

 

Any reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or in whole or in part.[88]

 

The conference report states:

 

This section deliberately broadens the scope of the definition of ‘conviction’ beyond that adopted by the Board of Immigration Appeals in Matter of Ozkok, 19 I. & N. Dec. 546 (BIA 1988).  As the Board noted in Ozkok, there exist in the various States a myriad of provisions for ameliorating the effects of a conviction.  As a result, aliens who have clearly been guilty of criminal behavior and whom Congress intended to be considered ‘convicted’ have escaped the immigration consequences normally attendant upon a conviction.  Ozkok, while making it more difficult for alien criminals to escape such consequences does not go far enough to address situations where a judgment of guilt or imposition of sentence is suspended, conditioned upon the alien’s future good behavior.  For example, the third prong of Ozkok requires that a judgment or adjudication of guilt may be entered if the alien violates a term or condition of probation, without the need for any further proceedings regarding guilt or innocence on the original charge.  In some States, adjudication may be ‘deferred’ upon a finding or confession of guilt, and a final judgment of guilt may not be imposed if the alien violates probation until there is an additional proceeding regarding the alien’s guilt or innocence.  In such cases, the third prong of the Ozkok definition prevents the original finding or confession of guilt to be considered a ‘conviction’ for deportation purposes.  This new provision, by removing the third prong of Ozkok, clarifies Congressional intent that even in cases where adjudication is ‘deferred,’ the original finding or confession of guilt is sufficient to establish a ‘conviction’ for purposes of the immigration laws.  In addition, this new definition clarifies that in cases where immigration consequences attach depending upon the length of a term of sentence, any court-ordered sentence is considered to be ‘actually imposed,’ including where the court has suspended the imposition of the sentence.  The purpose of this provision is to overturn current administrative rulings holding that a sentence is not ‘actually imposed’ in such cases.[89]

 

For a complete discussion of how the statutory definition of conviction has been interpreted, as it applies to deferred adjudications and the effectiveness of state rehabilitative relief to eliminate the conviction for immigration purposes, see N. Tooby, J. Rollin & J. Foster, Crimes of Moral Turpitude § 10.11 (2005).

[72] INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A), as enacted by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) (enacted as Division C of Omnibus Consolidated Appropriations Act, 1997, Pub. L. No. 104-208, § 322(a)(1), 110 Stat. 3009, 3009-628).

[73] Matter of Ozkok 19 I. & N. Dec. 546 (BIA 1988); see also Matter of Punu, 22 I. & N. Dec. 224 (BIA 1998) (holding that Congress deliberately changed the Ozkok test).

[74] Marino v. INS, 537 F.2d 686 (2d Cir. 1976).

[75] INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A), as enacted by IIRAIRA § 322(a)(1).

[76] North Carolina v. Alford, 91 S.Ct. 160 (1970).  Cf. Burrell v. United States, 384 F.3d 22 (2d Cir. Sept. 14, 2004) (Connecticut state conviction from Alford plea constitutes a conviction within meaning of federal firearms statute).

[77] Abimbola v. Ashcroft, 378 F.3d 173 (2d Cir. Aug. 5, 2004) (Alford plea is equivalent to a plea of guilty and constitutes a conviction under INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A)).

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

[79] Matter of Eslamizar, 23 I. & N. Dec. 684, 687 (BIA Oct. 19, 2004).

[80] IIRAIRA § 322(c).

[81] Madriz-Alvarado v. Ashcroft, 383 F.3d 321 (5th Cir. Aug. 27, 2004); Moosa v. INS, 171 F.3d 994, 1006-1110 (5th Cir. 1999).

[82] INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271 (2001).

[83] United States v. Ubaldo-Figueroa, 364 F.3d 1042 (9th Cir. Apr. 7, 2004) (concurring opinion) (NOTE: the concurring opinion was originally part of the majority decision, United States v. Ubaldo-Figueroa, 347 F.3d 718 (9th Cir. 2003); however, this argument was relegated to a concurring opinion upon denial of a request for rehearing en banc).

[84] INS v. St. Cyr, 121 S.Ct. at 2289.

[85] Ubaldo-Figueroa, 364 F.3d at 1051 (quoting United States v. Carlton, 512 U.S. 26, 30 (1994)).

[86] INA § 101(a)(48)(B), 8 U.S.C. § 1101(a)(48)(B), as enacted by IIRAIRA § 322(a)(1).  See also United States v. Ayala-Gomez, 255 F.3d 1314 (11th Cir. 2001).

[87] See Pino v. Landon, 349 U.S. 901 (1955) (stating that a criminal conviction may not be considered by the immigration authorities until it is final); see also Parr v. United States, 351 U.S. 513, 518, 76 S.Ct. 912, 916 (1956) (“Final judgment in a criminal case means sentence.”) (quoting Berman v. United States, 302 U.S. 211, 212, 58 S.Ct. 164 (1937)); United States v. Douglas, 974 F. 2d. 1046, 1048 n.2 (9th Cir. 1992), citing United States v. Gottlieb, 817 F. 2d 475, 476 (8th Cir. 1987) (orders regarding a guilty plea are not final decisions until after sentencing); Aguilera-Enriques v. INS, 516 F. 2d 565, 571 (6th Cir. 1975) (“Once a sentencing [on a guilty plea] is completed . . . the conviction is final for deportation purposes.”).

[88] INA § 101(a)(48)(B), 8 U.S.C. § 1101(a)(48)(B), as enacted by IIRAIRA § 322(a)(1).

[89] H.R. Conf. Rep. No. 104-828, at 224 (1996), quoted in part in Matter of Punu, 22 I. & N. Dec. 224 (BIA 1998).