Criminal Defense of Immigrants

(A)  In General.  Dispositions of minor criminal cases where no jail sentence is possible, there is no right to a jury trial, and no right to appointed counsel, occur under a procedure that is not considered criminal procedure, so the disposition is not considered a conviction of a crime.

In order to create a conviction-based ground of deportation, the conviction must be for a crime, as defined in the jurisdiction in which the offense was committed.[56]  Where the conviction is for a minor offense that is not designated as a crime in the jurisdiction in which it was committed, a conviction does not trigger deportation under conviction-based grounds.[57] 

Where the prosecution could proceed either civilly or criminally, and chose to prosecute the defendant for a crime, the resulting conviction was considered to be a crime.[58]  (For purposes of determining inadmissibility,[59] the act must constitute a crime under the criminal law of the jurisdiction where the act occurred.)[60]

The BIA has recently held that the phrase “judgment of guilt” under the statutory definition of “conviction”[61] requires that the judgment be issued as part of a criminal proceeding, i.e., “a trial or other proceeding whose purpose it is to determine whether the accused committed a crime and which provides the constitutional safeguards normally attendant upon a criminal adjudication.”[62]  The court found that a “criminal” proceeding under Oregon law[63] that resulted in a finding of guilt was not a conviction for immigration purposes because the proceeding involved a “violation” rather than a crime, for a number of reasons: conviction of a violation does not result in any legal disability under Oregon law;  the defendant does not have a right to a jury or court-appointed counsel in those proceedings; and the prosecution need only show guilt by a preponderance of the evidence, rather than beyond a reasonable doubt.[64]  Therefore, the proceedings were not criminal proceedings under federal immigration law, and the result was not a conviction for purposes of triggering a conviction-based ground of deportation.

Other states may have similar proceedings that would not result in a “conviction” for immigration purposes.[65]  See § 7.24(C), infra. 

[56] Ex parte Isojoki, 222 Fed. 151 (N.D. Cal. 1915).

[57] Matter of Van Dessel, 243 F.Supp. 328 (E.D. Pa. 1965) (fornication considered to be a minor offense); Matter of C, 2 I. & N. Dec. 367 (BIA 1945).

[58] Matter of W and B, 5 I. & N. Dec. 87 (BIA 1953).

[59] INA § 212, 8 U.S.C. § 1182; see Chapter 18, infra.

[60] 22 C.F.R. § 40.21(a).

[61] INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A).

[62] Matter of Eslamizar, 23 I. & N. Dec. 684, 687 (BIA Oct. 19, 2004).

[63] Oregon Revised Statutes § 153.076.

[64] Matter of Eslamizar, 23 I. & N. Dec. at 687.

[65] See, e.g., California Penal Code § 19.6.