If adjudication of guilt has been withheld, a disposition can still qualify as a conviction for immigration purposes if “the noncitizen . . . has admitted sufficient facts to warrant a finding of guilt; and the judge has ordered some form of punishment, penalty, or restraint on the noncitizen’s liberty to be imposed.”[32]  This way of establishing a conviction was carried over from the previous definition of conviction developed by the Board of Immigration Appeals.[33] 

                In the context of this immigration definition of conviction, surrounded as it is by judicial verdicts, formal judgments, deferred adjudication, and entry of plea, it is clear that the admission referred to here must be (a) made by the defendant, (b) as a judicial admission in the course of the criminal proceedings, (c) of “sufficient facts to warrant a finding of guilt . . . .”[34]  Thus, an admission made in the police station, or in immigration court, or to an agent of the DHS would not be sufficient to be equivalent to a plea of guilty for purposes of creating a conviction under this statutory definition.  Among other problems, it would not be possible to say that the judge later imposed a sentence on account of the extrajudicial admission, if it occurred later than the date on which the criminal court imposed punishment in the criminal case.

 

                The “admission of sufficient facts” in the immigration statute may specifically refer to judicial procedures such as in Massachusetts in which the defendant admits sufficient facts to warrant a conviction, under a procedure similar to entry of plea, as part of a diversionary procedure:

 

Mass. R.Crim. P. 12(a)(2) provides that a defendant in a District Court action “may, after a plea of not guilty, admit to sufficient facts to warrant a finding of guilty,” the course Mr. Jalloh elected to dispose of the matter in the Dorchester District Court. Pursuant to Mass. Gen. Laws ch. 278, § 18--which governs the entry of pleas, requests for specific dispositions, and pretrial motions--an “admission to facts sufficient for finding of guilt ... shall be deemed a tender of a plea of guilty for purposes of this section.” See Mateo v. United States, Nos. 03-2409, 03-2472, 398 F.3d 126, at *2 n. 3 (1st Cir. Feb.18, 2005); United States v. Morillo, 178 F.3d 18, 21 (1st Cir. 1999); Luk v. Commonwealth, 421 Mass. 415, 418 n. 6, 658 N.E.2d 664 (1996). By admitting to sufficient facts, Mr. Jalloh waived the following rights: “the right to a trial with or without jury, the right to confrontation of witnesses, the right to be presumed innocent until proven guilty beyond a reasonable doubt, and the privilege against self-incrimination.” Mass. R.Crim. P. 12(c)(3)(A). Before Mr. Jalloh’s admission of sufficient facts was accepted, the District Court was required to inform him both of the rights he was waiving by making the admission and of the potential consequences of the admission, Mass. R.Crim. P. 12(c)(3), as well as to determine that the admission was made “voluntarily with an understanding of the nature of the charge and the consequences of the ... admission.” Mass. R.Crim. P. 12(a)(3).[35]

 

Congress clearly intended that procedures such as this, in which formal adjudication was deferred, should constitute a conviction for immigration purposes.  See § 7.13, supra.  This type of “admission,” however, must be limited to a formal judicial procedure such as that used in Massachusetts, and this must be distinguished from an “admission” that can be equivalent to a conviction for purposes of triggering inadmissibility for a controlled substances conviction or conviction of a crime of moral turpitude.  See § 18.8, infra.

 

There has been little judicial discussion of this “admission” method of establishing or creating a conviction.  A Utah plea in abeyance has been held to constitute a conviction under the new definition because a plea of guilty had been entered, but the government apparently argued before the district court it was a conviction as an admission of sufficient facts to warrant conviction.[36]  Under the United States Sentencing Guidelines, the First Circuit held a judicial admission of sufficient facts to warrant a guilty finding, which was treated as a guilty plea under Massachusetts law, qualified as a “diversionary disposition resulting from . . . admission of guilt” for purposes of computing a federal defendant’s criminal history category.[37]

                If a case is submitted to the court for verdict on guilt or innocence on the basis of a police report, transcript, or agreed set of facts, counsel should carefully refuse to characterize the submission as an admission or agreement that certain facts are true.  If counsel stipulates, for example, that the court can consider a certain report, or that the prosecution could produce some evidence which, if believed, would establish certain facts, s/he should make the record clear that there is no admission that those facts are true.[38]

 

[32] INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A), as enacted by IIRAIRA § 322(a)(1).

[33] Matter of Ozkok, 19 I& N Dec. 546 (BIA 1988) (the BIA stated that it would consider a person convicted where the court has adjudicated her or him guilty or has entered a formal judgment of guilt. Where adjudication of guilt had been withheld, a conviction generally would be found where (1) a judge has found the alien guilty or s/he has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilty; (2) the judge has ordered some form of punishment, penalty, or restraint on the person’s liberty; and (3) a judgment or adjudication of guilt may be entered if the person violates the terms of his or her probation or fails to comply without the requirements of the court’s order, without availability of further proceedings regarding the person’s guilt or innocence of the original charge).

[34] Ibid.

[35] Jalloh v. Department of Homeland Security, No. Civ. A. 04-11403-DPW (D.Mass. 2005) (unreported).

[36] United States v. Zamudio, 314 F.3d 517, 522 (10th Cir. 2002) (“ Mr. Zamudio met the statutory requirement when he entered a guilty plea to the Utah charge of distribution of marijuana and the district court imposed a penalty in the form of a $1,000 fine. His Utah plea in abeyance thus squarely falls within § 1101(a)(48)(A)’s definition of conviction.”).  The government had apparently argued before the district court the disposition was a conviction under the “admission of sufficient facts” theory, but on appeal argued the defendant had entered a guilty plea. Ibid. n.6.

[37] United States v. Morillo, 178 F.3d 18 (1st Cir. 1999) (Massachusetts “continuance without a finding,” based on admission of facts sufficient for guilty finding on charges of violating domestic violence restraining order and threatening to commit crime, qualified as a “diversionary disposition resulting from . . . admission of guilt” under USSG § 4A1.2(f) governing computation of criminal history category, which required only admission of guilt, not finding of guilt, and defendant’s admission, accepted by Massachusetts court in compliance with its procedural requirements, was treated as guilty plea under Massachusetts law).

[38] See § 16.24, infra.

First Circuit

CONVICTION - ADMISSION OF SUFFICIENT FACTS + PUNISHMENT
De Vega v. Gonzales, __ F.3d __, 2007 WL 2696489 (1st Cir. Sept. 17, 2007) (Massachusetts continuance of a criminal case based on an admission of facts sufficient for a finding of guilt and conditioned on payment of restitution constitutes a "conviction" under INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A) for immigration purposes, even though no actual finding of guilt had been made in this case).

Eighth Circuit

CRIMES OF MORAL TURPITUDE " INADMISSIBILITY -- CONVICTION " ADMISSION OF SUFFICIENT FACTS CONTROLLED SUBSTANCES " INADMISSIBILITY -- -- CONVICTION " ADMISSION OF SUFFICIENT FACTS
Garcia-Gonzalez v. Holder, 737 F.3d 498 (8th Cir. Dec. 9, 2013) (by agreeing in his plea agreement that the Government could have proved the factual basis for his racketeering conviction beyond a reasonable doubt, the noncitizen admitted to each of the elements of a violation of 21 U.S.C. 846, which constituted an offense related to a controlled substance; he was therefore inadmissible under INA 212(a)(2)(A)(i)(II)).

Lower Courts of Eighth Circuit

RECORD OF CONVICTION " ADMISSION OF FACTS " FACTUAL BASIS OF PLEA
Morales v Gonzales, 478 F3d 972 (9th Cir. 2007) (a defendants admission to facts for a limited purpose does not become part of the record of conviction and cannot be used in subsequent proceedings). Note: Facts recited by a court of appeals opinion affirming the sufficiency of the evidence for conviction were not facts admitted by the defendant for their truth and should not have been considered part of the record of conviction for purposes of determining the nature of the conviction for immigration purposes. [F]or the sole purpose of determining the sufficiency of the evidence, the evidence is presumed true. It was from this isolated context that the IJ drew the facts and circumstances of Morales's conviction. This is far different from relying on a charging document read in conjunction with a valid plea agreement, where a defendant admits the alleged facts in a way that is binding for the purposes of conviction and subsequent proceedings. See Lara-Chacon v. Ashcroft, 345 F3d 1148, 1152 (9th Cir 2003). Here, in her appeal, Morales did not admit the truth of the evidence presented by the State for all future purposes; she simply allowed the state appellate court to assume the truth of the State's evidence for the purpose of her challenge to its sufficiency." Morales, supra, 982-983. COMMENT: Just as with the limited admission in the court of appeal in this case, the agreement that the court may use police reports or an oral statement of facts or any facts to assess whether there is a factual basis for the plea, should not under identical reasoning be taken as an admission that is binding for the purposes of conviction and later proceedings. Counsel could make this clear, and say, As the court knows, the defense sometimes disagrees with the truth of the facts in the police reports, or prosecution version. We are therefore not agreeing that this statement of facts is true, but are agreeing that the court may consider it for the limited purpose of allowing the court to evaluate a factual basis for this plea. That may well protect the defendant against adverse facts in the factual basis being considered as true in later immigration proceedings. Cross-References: Cal Crim Def Immig 3.41

Ninth Circuit

CONVICTION " DEFINITION " ADMISSION OF FACTS
Morales v. Gonzales, 472 F.3d 689 (9th Cir. Jan. 3, 2007) (agreement to allow state appellate court to assume the truth of the States evidence for the purpose of defendants challenge to the sufficiently of the evidence on appeal is not an admission of facts sufficient to determine the nature of a conviction for immigration purposes, since [N]o factual findings are actually made, and no admissions are entered into by the defendant. Instead, for the sole purpose of determining the sufficiency of the evidence, the evidence is presumed true. . . . This is far different from relying on a charging document read in conjunction with a valid plea agreement, where a defendant admits the alleged facts in a way that is binding for the purposes of conviction and subsequent proceedings. See Lara-Chacon v. Ashcroft, 345 F.3d 1148, 1152 (9th Cir.2003).).