Criminal Defense of Immigrants

(B)  Lack of Sentence.  If adjudication of guilt has been withheld, a plea, verdict or admission can create a conviction only if “the judge has ordered some form of punishment, penalty, or restraint on the noncitizen’s liberty to be imposed.”[42]  This requirement creates the possibility of a safe haven where this requirement is not satisfied.  For example, where the original conviction (and sentence) has been vacated, and a new plea entered, but no new sentence had been imposed since the prior sentence had been completely satisfied, the new plea did not result in a conviction under the new 1996 statutory definition of conviction, since no “restraint on liberty” had been imposed after, and as a result of, the new plea.[43]

The statute defining “sentences” provides that:

Any reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or in whole or in part.[44]

If no sentence has been imposed, the defendant does not have a final conviction for immigration purposes.  See § 7.37, infra.[45]  The date of conviction is considered to be the date on which sentence was imposed.[46]

                A conviction resulting in a sentence of conditional discharge, in contemplation of state rehabilitative treatment, constitutes a conviction for purposes of deportation.[47]  A sentence of probation and a designation of “youthful trainee” under Michigan’s Holmes Youthful Trainee Act,[48] also constitutes a conviction for immigration purposes.[49]

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

[43] See Griffiths v. INS, 243 F.3d 45 (1st Cir. 2001) (holding there was no conviction, under the statutory definition, because after the initial conviction had been reversed on appeal, no sentence whatsoever had thereafter been imposed, so the court had imposed no punishment, penalty, nor restraint on liberty as a result of the new disposition of the criminal case).

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

[45] See Pino v. Landon, 349 U.S. 901 (1955) (stating that a criminal conviction may not be considered by the immigration authorities until it is final); see also Parr v. United States, 351 U.S. 513, 518, 76 S.Ct. 912, 916 (1956) (“Final judgment in a criminal case means sentence.”) (quoting Berman v. United States, 302 U.S. 211, 212, 58 S.Ct. 164 (1937)); United States v. Douglas, 974 F.2d. 1046, 1048 n.2 (9th Cir. 1992), citing United States v. Gottlieb, 817 F.2d 475, 476 (8th Cir. 1987) (orders regarding a guilty plea are not final decisions until after sentencing); Aguilera-Enriques v. INS, 516 F.2d 565, 571 (6th Cir. 1975) (“Once a sentencing [on a guilty plea] is completed . . . the conviction is final for deportation purposes.”).

[46] Perez v. Elwood, 294 F.3d 552 (3d Cir. 2002)(sentence required to constitute conviction; date of sentencing, not the date of the jury verdict, is controlling as the date of conviction, because it is not until the court either enters judgment or finds guilt and imposes sentence that a conviction has occurred); Puello v. BCIS, 418 F.Supp.2d 436 (S.D.N.Y. Dec. 13, 2005) (for purposes of applying the permanent bar to good moral character for conviction of an aggravated felony, under INA § 101(f), the date of conviction is the date of sentencing or the date the judgment of conviction was filed with Clerk of Court, rather than on date the guilty plea was entered).

[47] Singh v. Ashcroft, No. 01 CV 6588(SJ) (E.D.N.Y. Apr. 11, 2003) (unpublished) (New York misdemeanor conviction of criminal sale of marijuana in the fourth degree, in violation of New York Penal Law § 221.40, for which a sentence of one year conditional discharge, under New York Penal Law § 60.01, was imposed, constitutes a conviction under 8 U.S.C. § 1101(a)(48)(A), for deportation purposes, even though it can later be expunged).

[48] Mich. Comp. Laws § § 762.11-16.

[49] Uritsky v. Gonzales, 399 F.3d 728 (6th Cir. Mar. 7, 2005).