Criminal Defense of Immigrants
§ 7.16 2. Deferred Judgment of Guilt
For more text, click "Next Page>"
The general rule is that a deferred adjudication of guilt, or similar state disposition, constitutes a “conviction” for immigration purposes if it meets the immigration-law definition, even if the state does not consider it to be a conviction for state-law purposes.[25]
Where formal adjudication of guilt has been withheld, a conviction requires:
(a) A finding of guilt, which can be based upon:
(i) A guilty verdict after court trial, or
(ii) A guilty verdict after jury trial, or
(iii) Entry of a plea of guilty, or
(iv) Entry of a plea of nolo contendere, or
(v) An admission by the defendant of sufficient facts to warrant a finding of guilt, and
(b) Imposition of sentence, in which the court, as a result of the finding of guilt, orders some form of
(i) Punishment, or
(ii) Penalty, or
(iii) Restraint on the noncitizen’s liberty to be imposed.[26]
If formal adjudication has been withheld, a conviction does not exist under this definition unless there is both (a) a finding of guilt based on one of the enumerated bases, plus (b) imposition of sentence which must include some form of punishment, penalty or restraint on liberty.
[25] D. Kesselbrenner & L. Rosenberg, Immigration Law and Crimes § 2:17 (2007).
[26] INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A), as enacted by IIRAIRA § 322(a)(1).