Criminal Defense of Immigrants


§ 7.16 2. Deferred Judgment of Guilt

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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).



Fourth Circuit

Yanez-Popp v. INS, 998 F.2d 231 (4th Cir.1993) (Maryland court's granting of probation without judgment, in which a plea of guilty is entered and then stricken during imposition of probation at sentence, constituted a conviction within the meaning of the immigration laws); see INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A).

Ninth Circuit

Retuta v. Holder, 591 F.3d 1181 (9th Cir. 2010) supports an argument that a California DEJ (deferred entry of judgment) disposition is not a conviction under INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A), because there is no penalty or restraint, as long as either no fee or a fee that was suspended without condition (suspended "non -incarceratory fine") is imposed. There are questions as to what is the role of probation in DEJ and in INA 101(a)(48)(A). Thanks to Alisa Kaufman and Mario Acosta.