Deferred prosecution is a phrase that describes a situation in which prosecution and defense negotiate an agreement with the following elements:

 

            (1)  No plea of guilty or no contest is entered.

 

            (2)  The defendant makes no admission of facts sufficient to support a conviction for any offense.

 

            (3)  The defendant waives any right to speedy disposition of the criminal case.

 

            (4)  Both sides agree to postpone criminal proceedings for an agreed-upon period, such as one year, during which time the defendant will comply with certain conditions.  These conditions can be simple, such as “obey all laws,” or more demanding, such as successful completion of a residential drug program or payment of specified restitution.

 

            (5)  The initial agreement provides that if the defendant successfully complies with the specified conditions during the period of deferred prosecution, the prosecution will dismiss all charges without entry of a plea or verdict.

 

            (6)  The court postpones the case for the agreed period.  This is normally the only agreement required from the court.

 

            (7)  After successful completion of the deferred prosecution agreement, the prosecution moves to dismiss all charges.  Typically, the prosecution has virtually total authority over the bringing and dismissal of charges, and the court will generally have no authority to refuse to dismiss charges when both sides agree.

 

            Successful completion of a deferred prosecution agreement does not constitute a conviction under the statutory definition of conviction for immigration purposes, because the defendant completes the required conditions and obtains a dismissal of all charges.  No plea of guilty or no contest has been entered at any time.  There has been no admission of facts sufficient to support a conviction.  There has never been a verdict of guilty entered.  The elements of the statutory definition of conviction have not been met.  There is therefore no conviction for immigration purposes.

CAL POST CON - DIVERSION - NO-PLEA DOMESTIC VIOLENCE DIVERSION
No "admission of guilt" was required under this domestic violence no-plea diversion statute. Penal Code 1001.6(c). It was enacted by Stats. 1979, c. 913, p. 3141, 1, last amended by Stats. 1993, c. 221, 1, and repealed in 1995, repeal effective Jan. 1, 1996.

BIA

CONVICTION - DEFERRED ADJUDICATION
Matter of Thomas, 24 I.& N. Dec. 416, 419 (BIA Dec. 13, 2007) (second possession conviction can constitute aggravated felony, under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B) (2000), even if court withheld adjudication on first possession conviction), citing United States v. Mejias, 47 F.3d 401, 404 (11th Cir. 1995) (plea to a felony drug charge under Florida law constitutes a valid prior "conviction" for purposes of the CSAs recidivism provisions, even if the trial court withheld adjudication of guilt).

Ninth Circuit

CONVICTION - PRETRIAL DIVERSION
Melendez v. Gonzales, __ F.3d __, 2007 WL 2713121 (9th Cir. Sept. 19, 2007) (a noncitizen may not obtain a Lujan expungement for immigration purposes on a second offense were the noncitizen has already been given "pretrial diversion" treatment on a prior offense, even though "pre-trial diversion" does not require the noncitizen to enter a plea of guilty to a controlled substances offense).

Other

SAFE HAVEN - DEFERRED PROSECUTION - NOT A CONVICTION BECAUSE NO RESTRAINT HAS BEEN IMPOSED
It is possible to argue that a deferred prosecution agreement does not constitute a conviction under the IIRAIRA statutory definition of conviction for immigration purposes, provided the court does not order any restraint of the defendant during the deferred-prosecution period, but merely approves the agreement between the parties. Thanks to Jennifer Foster for this argument.

CONVICTION - NO-PLEA DIVERSION - CONNECTICUT
The Family Violence Education Program (FVEP) under Conn. Gen. Stat. 54-56e is a pre-trial diversionary program. When a defendant enters this program, s/he is not required to enter a guilty plea on the record. It is typically a one-year program where certain requirements must be met, including taking domestic violence classes, avoiding any other arrest, etc. It is not a conviction in Connecticut and should not be considered a conviction for immigration purposes as long as the program was successfully completed, since it does not meet the statutory requirements of a conviction under immigration law because no plea or admission was entered at any time. INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A).