Criminal Defense of Immigrants


§ 7.15 1. Formal Judgment in Criminal Case

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A formal judgment of guilt, i.e., a judgment of conviction and sentence in a criminal case, constitutes a conviction.  A “judgment” means “A court’s final determination of the rights and obligations of the parties in a case.”[23]  A “judgment of conviction” means ”[t]he written record of a criminal judgment, consisting of the plea, the verdict or findings, the adjudication, and the sentence.”[24]  Thus, a formal judgment does not exist unless sentence has been formally imposed.

[23] Black’s Law Dictionary 846 (7th ed. 1999). 

[24] Id. at 847, citing F.R.Crim.P. 32(d)(1).



First Circuit

Vivieros v. Holder, ___ F.3d ___, ___ (1st Cir. Jun. 25, 2012) (Massachusetts conviction of shoplifting, under Mass. Gen. Laws ch. 266, 30A, constituted a conviction for immigration purposes, under INA 101(a)(48)(A), 8 U.S.C. (a)(48)(A), where the defendant pleaded guilty and received a fine of $250, which was later vacated, so the ultimate disposition was a guilty finding with no fines or costs, because the statutory definition of conviction has no such requirement in (A), but Congress specifically included a punishment requirement in the alternative definition under (B): We reject out-of-hand the petitioner's suggestion that there was no formal judgment of guilt because he was never ultimately punished for his shoplifting crime.); distinguishing Griffiths v. INS, 243 F.3d 45, 51-52, 54 (1st Cir. 2001) (stating that the punishment question is irrelevant to an inquiry into whether a formal judgment has been imposed; the court in Griffiths simply filed a guilty plea without ever imposing a sentence); see Duncan v. Walker, 533 U.S. 167, 173, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) (explaining that where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion (internal quotation marks omitted)).

Second Circuit

Puello v. BCIS, 511 F.3d 324 (2d Cir. Dec. 20, 2007) (under INA 101(f)(8), 8 U.S.C. 1101(f)(8), the date of conviction is the date of sentence: "In sum, we hold that, under the plain meaning of the definition of "conviction" in 8 U.S.C. 1101(a)(48)(A), the entry of a "formal judgment of guilt . . . by a court" occurs when judgment is entered on the docket, not when a defendant pleads guilty."); see Perez v. Elwood, 294 F.3d 552, 562 (3d Cir. 2002) (the date of conviction under the INA is the date of either sentencing or entry of judgment on the docket); Abimbola v. Ashcroft, 378 F.3d 173, 181 (2d Cir. 2004) (an Alford plea coupled with a sentence constitutes a conviction under the INA, and noting that "Congress focused the sanction of removal on a criminal conviction as opposed to an admission of guilt"); Mugalli v. Ashcroft, 258 F.3d 52, 62 (2d Cir. 2001) (in the deportation context, a New York state conviction mitigated by a Certificate of Relief is still a conviction under the INA because the defendant "entered a plea of guilty, and the court entered a formal judgment of guilt").