Criminal Defense of Immigrants


§ 7.13 2. Legislative History

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In adding the definition of “conviction” to the Immigration and Nationality Act, 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.[22]


Thus Congress expressed its desire to include as convictions those dispositions in which formal judgment is deferred or withheld, so long as the statutory elements of conviction are present.  Congress did not expressly alter the rules under which post-conviction relief is effective in eliminating some convictions.


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



Second Circuit

Puello v. BCIS, 511 F.3d 324 (2d Cir. Dec. 20, 2007) (1996 statutory definition of "conviction" under INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A), applies retroactively: "In passing the statute, Congress made clear that it intended the new definition to apply retroactively. Illegal Immigration Reform and Alien Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208, Div. C., Title III-A 322(c), 110 Stat. 3009-629 (1996) (applying the new definition to "convictions and sentences entered before, on, or after the date of enactment of this Act).").