Safe Havens

(B)  When Conviction Occurs.  A conviction cannot trigger deportation unless it occurs after admission.  See § 4.34, supra.  Some grounds of deportation also have effective dates.  See, e.g., the domestic violence ground of deportation.[4]  If new legislation creates a new ground of deportation, that ground may have an effective date.  Counsel should be alert to see this situation developing, since it may create an opportunity to create a safe haven by arranging to enter a plea before the effective date of a new ground of deportation.

In a case that does not involve the withholding of adjudication of guilt, the statutory definition of “conviction,”[5] requires entry of a “formal judgment of guilt” before immigration authorities can initiate removal proceedings.  This definition requires a determination of guilt plus imposition of sentence, resulting in the entry of a formal judgment.[6]

This is consistent with federal practice, which defines the entry of judgment in a criminal case as a finding of guilt plus sentencing.[7]

The same rule holds true even where formal adjudication is withheld, as for example where probation is granted.  This is because the statutory definition of conviction, for immigration purposes, where adjudication is withheld, still requires a plea of guilty or no contest or verdict of guilty, or admission of sufficient facts, and in addition, that “(2) the judge has ordered some form of punishment, penalty, or restraint on the person’s liberty to be imposed.”[8]  Therefore, sentence must be imposed before a conviction will exist, under this definition, for deportation purposes, even if adjudication is withheld.

After a defendant has been found guilty, and sentence has been imposed, a conviction exists for immigration purposes sufficient to trigger the grounds of deportation that require a conviction to exist if the nature of the conviction falls within the boundaries of a conviction-based ground of deportation.

A criminal conviction also constitutes proof that the defendant committed certain conduct, i.e., that conduct defined as the minimum conduct sufficient to satisfy the essential elements of the offense of conviction.  A conviction can serve as proof that certain conduct occurred, for the purpose of establishing one or more of the conduct-based grounds of deportation as well.  If the minimum conduct established by the elements of the conviction falls within the boundaries of a conduct-based ground of deportation, the conviction can trigger deportation under that ground.

[4] INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i) (conviction must have occurred on or after September 30, 1996 to trigger domestic violence ground of deportation).

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

[6] See Griffiths v. INS, 243 F.3d 45 (1st Cir. 2001); see also Aguilera-Enriquez v. INS, 516 F.2d 565, 570 (6th Cir. 1975) (a person has not been convicted of a federal crime for purposes of deportation until sentencing has been conducted and judgment has been entered); Matter of Winter, 12 I. & N. Dec. 638 (BIA 1968) (no conviction despite guilty plea); Matter of LR, 7 I. & N. Dec. 318, 322 (BIA 1956, AG 1957); Matter of O, 7 I. & N. Dec. 539, 541 (BIA 1957).

[7] See Fed.R.App.P. 4(b) (conviction is not final for purposes of appeal until entry of judgment after sentencing); Fed.R.Crim.P. 32(d) (a guilty plea does not become final and may be withdrawn for any fair or just reason before sentence is imposed); Teague v. Lane, 489 U.S. 288, 314 n.2, 109 S.Ct. 1060, 1077 n.2 (1989) (O’Connor, J., joined by Rehnquist, C.J., Scalia, J., and Kennedy, J.) (“a criminal judgment necessarily includes the sentence imposed upon the defendant”); Flynt v. Ohio, 451 U.S. 619, 620, 101 S.Ct. 1958, 1959 (1981) (“Applied in the context of a criminal prosecution, finality is normally defined by the imposition of the sentence.”); 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, 166 (1937)); Miller v. Aderhold, 288 U.S. 206, 210-11, 53 S.Ct. 325, 325-26 (1933); United States v. Gottlieb, 817 F.2d 475, 476 (8th Cir. 1987) (orders regarding a guilty plea are not final decisions until after sentencing).

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