Safe Havens

To trigger deportation, a noncitizen must have been convicted of a criminal offense (or “crime”) falling within the aggravated felony definitions.  This requirement therefore has two parts: there must be a conviction,[3] and the conviction must be for a crime.

To trigger removal based on an aggravated felony, a “conviction” is required that falls within the boundaries of an aggravated felony category.  Any disposition in criminal court that does not constitute a conviction for immigration purposes will not trigger this ground of deportation.[4]

Only certain dispositions are considered to be “convictions” for immigration purposes.  Under INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A), a conviction includes a “formal judgment of guilt of the alien entered by a court,” and also other less formal dispositions.  A conviction can result from a verdict of guilty after court or jury trial, or, more commonly, after a plea of guilty or no contest.[5]  A conviction can also result from an admission in criminal court of sufficient facts to warrant a conviction.[6]  A state or federal conviction can trigger this ground.[7]  A finding of guilt followed by commitment to a state mental hospital is considered a conviction,[8] as is a finding of guilt followed by commitment to another institution or agency.[9] 

            Certain dispositions, however, are not considered “convictions” for immigration purposes and therefore have no immigration effect. 

            A major class of safe havens consists of dispositions of criminal cases that do not constitute convictions, under the immigration-law definition of “conviction.”  This class of safe havens includes the following:

[3] See N. Tooby, Aggravated Felonies § 3.4 (2003).

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

[5] Ahmed v. INS, 92 F.3d 1196 (10th Cir. 1996) (table); Giammario v. Hurney, 311 F.2d 285 (3d Cir. 1962) (where noncitizen pleaded guilty and was convicted of larceny in Australia, he was properly deported as a noncitizen excludable from admission based on conviction of crime of moral turpitude; noncitizen’s claim that he pleaded guilty only because a trial would have taken weeks or months was rejected, and the court refused to try anew the issue of noncitizen’s guilt). 

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

[7] Buffalino v. Irvine, 103 F.2d 830 (10th Cir. 1939); Ponzi v. Ward, 7 F.Supp. 736 (D. Mass. 1934); Matter of Alfonso-Bermudez, 12 I. & N. Dec. 225 (BIA 1967) (conviction under city ordinance, disorderly conduct).

[8] Matter of V, 7 I. & N. Dec. 242 (BIA 1956).

[9] Zabanazad v. Rosenberg, 306 F.2d 861 (9th Cir. 1962); Adams v. United States, 299 F.2d 327 (9th Cir. 1962); Matter of Garcia, 19 I. & N. Dec. 270 (BIA 1985); Matter of HV, 9 I. & N. Dec. 428 (BIA 1961); Matter of P, 8 I. & N. Dec. 517 (BIA 1960) (two convictions, commitment under Federal Youth Correction Act).