(F)  Compliance With United States Standards of Fairness.  Congress recently provided, with respect to a specified new statute, that “[A] foreign conviction is not a sex offense for the purposes of this title if it was not obtained with sufficient safeguards for fundamental fairness and due process for the accused under guidelines or regulations established under section 112.”[123] This may lead to arguments that a foreign conviction should not trigger adverse immigration consequences unless it meets U.S. standards of fairness. 

 

                In Matter of Eslamizar,[124] the BIA held a finding of petty theft under Oregon minor offense procedure did not constitute a conviction for immigration purposes, since it was not a criminal proceeding in which the normal procedural rights, such as jury trial, the right to appointed counsel, and the presumption of innocence were not respected. The Board, however, distinguished foreign convictions: “[N]othing in our decision should be taken as asserting that a foreign conviction must adhere to all the requirements of the United States Constitution applicable to criminal trials, including that relating to the requisite standard of proof.  Rather, we find that Congress intended that the proceeding must, at a minimum, be criminal in nature under the governing laws of the prosecuting jurisdiction, whether that may be in this country or in a foreign one.”[125] 

[123] The Adam Walsh Child Protection and Safety Act of 2006, H.R. 4472, Pub. L. 109-248, § 111(5)(B) (July 27, 2006).

[124] Matter of Eslamizar, 23 I. & N. Dec. 684 (BIA Oct. 19, 2004) (en banc) (court procedures under Ore. Rev. Stat. § 153.076, did not constitute a conviction for immigration purposes, since the proceedings do not allow a jury trial, right to court-appointed counsel, sentence to custody, or proof beyond a reasonable doubt), overruling Matter of CR, 8 I. & N. Dec. 59 (BIA 1958) (police court adjudication of petty theft under a municipal ordinance, on a standard of preponderance of the evidence, constituted a conviction for immigration purposes).

[125] Id. at 688 (footnote omitted).

FOREIGN CONVICTIONS - SPECIFICALLY LISTED IN FEDERAL LEGISLATION
Burgess v. United States, ___ U.S. ___, ___,(Apr. 16, 2008) ("Notably, [21 U.S.C.] 802(44) includes foreign offenses punishable by more than one year, while 802(13) includes only federal and state offenses. Incorporation of 802(13) into 841(b)(1)(A) would exclude enhancement based on a foreign offense, notwithstanding the express inclusion of foreign offenses in 802(44)'s definition of "felony drug offense." Furthermore, some States and many foreign jurisdictions do not label offenses as felonies or misdemeanors.").

FOREIGN CONVICTIONS - SPECIFICALLY LISTED IN FEDERAL LEGISLATION
Burgess v. United States, ___ U.S. ___, ___,(Apr. 16, 2008) ("Notably, [21 U.S.C.] 802(44) includes foreign offenses punishable by more than one year, while 802(13) includes only federal and state offenses. Incorporation of 802(13) into 841(b)(1)(A) would exclude enhancement based on a foreign offense, notwithstanding the express inclusion of foreign offenses in 802(44)'s definition of "felony drug offense." Furthermore, some States and many foreign jurisdictions do not label offenses as felonies or misdemeanors.").

Other

SAFE HAVEN - STATE REHABILITATIVE RELIEF - PRIOR FOREIGN CONVICTION DOES NOT DISQUALIFY DEFENDANT FROM FFOA TREATMENT
The Federal First Offender Act, 18 U.S.C. 3607(a)(1), does not permit an expungement if the defendant has prior to the commission of the current offense suffered a conviction under "Federal or State" law. This provision does not include foreign convictions as a disqualification for this relief.