Criminal Defense of Immigrants
§ 7.27 B. Non-Conviction Dispositions
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A major class of safe havens consists of dispositions of criminal cases that do not constitute convictions, under the immigration-law definition of “conviction.” See § 7.11, supra. This class of safe havens includes the following:
(1) Acquittal. Where a court or jury has returned a verdict of “not guilty,” the noncitizen has not suffered a conviction, and the disposition cannot trigger any conviction-based immigration consequence. See § 7.28, infra.
(2) Dismissal Before Conviction. Where the court has ordered a criminal charge to be dismissed, prior to any verdict of guilty, and no plea of guilty or no contest or qualifying admission has been entered, there is no conviction to trigger any conviction-based immigration consequence. See § 7.29, infra.
(3) Deferred Prosecution. Where criminal proceedings are postponed and later dismissed by agreement between prosecution and defense, and no plea of guilty or no contest, admission, or verdict has been entered at any time, there is no conviction to trigger any conviction-based immigration consequence. See § 7.30, infra.
(4) Deferred Verdict. Where a court or jury trial occurs, but before a verdict has been entered, the criminal proceedings are postponed and later dismissed by agreement between prosecution and defense, and no guilty or no contest plea, admission, or verdict has been entered at any time, there is no conviction to trigger any conviction-based immigration consequence. See § 7.31, infra.
(5) Deferred Sentence. Where a plea or verdict of guilty is entered, but before a sentence has been passed, the criminal proceedings are postponed and later dismissed by agreement between prosecution and defense, there is arguably no conviction to trigger any conviction-based immigration consequence. See § 7.32, infra.
DEFERRED ADJUDICATION - FEES ARE PUNISHMENT
Matter of Cabrera, 24 I. & N. Dec. 459 (BIA Feb. 27, 2008) (costs and surcharges imposed in Florida deferred adjudication proceeding constitute a form of "punishment" or "penalty" for purposes of establishing that a noncitizen has suffered a "conviction" within the meaning of INA 101(a)(48)(A)). Note: the court here sought to establish a national standard (rather than relying on Florida state law), and includes amounts paid in restitution as a cost equaling "punishment."
Lower Courts of Fourth Circuit
CONVICTION - PRETRIAL DIVERSION NOT A CONVICTION
Iqbal v. Bryson, ___ F.Supp.2d ___ (E.D. Va., Jan. 13, 2009) ("Had Petitioner been required to plead guilty or admit to facts surrounding the charges, New York's PDA and Texas' deferred adjudication program would be identical when analyzed under the statute. Instead of utilizing New York's deferred adjudication agreement, which does require the defendant to make a plea, Petitioner was involved in New York's PDA program, which has no such requirements. In as much as the Court finds that the first element required to establish a conviction under 1101(a)(48)(A) cannot be met, the Court need not analyze the second prong of punishment.").
CONVICTION - FINALITY - FULL FAITH AND CREDIT ACT NOT VIOLATED BY SENTENCING COURT'S CONCLUSION STATE DEFERRED ADJUDICATION PROBATION DISPOSITION CONSTITUTES CONVICTION FOR PURPOSES OF ENHANCING FEDERAL SENTENCE UNDER 18
U.S.C. 841(b)(1)(A) United States v. Fazande, 487 F.3d 307 (5th Cir. May 18, 2007) (per curiam) (Texas guilty plea resulting in imposition of deferred adjudication probation constituted a "prior conviction" for purposes of sentence enhancement under 18 U.S.C. 841(b)(1)(A), rejecting claim that it did not constitute a final conviction under Texas law and the Full Faith and Credit Act; 28 U.S.C. 1738, required the federal criminal court to honor that conclusion, since "the principles that underlie the Full Faith and Credit Act are simply not implicated when a federal court endeavors to determine how a particular state criminal proceeding is to be treated, as a matter of federal law, for the purpose of sentencing the defendant for a distinct and unrelated federal crime."), following United States v. Jones, 415 F.3d 256, 265 (2d Cir. 2005) ("[T]he principles of federalism and comity embodied in the full faith and credit statute are not endangered when a sentencing court, not questioning the propriety of the state's determination in any way, interprets how to apply New York's youthful offender adjudications to a Guidelines analysis.") (internal citation and quotation marks omitted); United States v. Guthrie, 931 F.2d 564, 571 (9th Cir.1991) ("[D]octrines such as Full Faith and Credit, ... and related jurisdictional principles, are inapplicable ... where the issue is the role of prior state convictions in a federal sentencing scheme."); United States v. Carter, 186 Fed.Appx. 844, 847 (10th Cir.2006) (unpublished) ("It does not accord a state judgment less than full faith and credit for a federal court to determine its effect on a subsequent federal sentence under federal law."); see also United States v. Cisneros, 112 F.3d 1272, 1281 (5th Cir. 1997) (rejecting defendant's argument that "because he had successfully completed his two-year deferred adjudication probation," that offense "could not be used to enhance his punishment ... under 841(b)(1)(A)"); United States v. Morales, 854 F.2d 65, 68 (5th Cir. 1988) (the meaning of the phrase "have become final" in 18 U.S.C. 841(b)(1)(B) is a question of federal law, not state law).
CONVICTION " NON-CONVICTION DISPOSITION " NO-PLEA DIVERSION
Practice Advisory. State no-plea diversion programs in which a defendants confession is not placed in the court file do not constitute convictions for immigration purposes under the statutory definition of conviction. INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A). The admission of facts referred to in this statute must mean an admission to the court, rather than to the prosecutor. It is possible, however, for an ICE attorney to ask the prosecutor for a copy and try to use it in removal proceedings to establish a conviction. An immigration judge could rule " wrongly " that when respondent agreed that the agreement admitting guilt could come into the court later, without objection, the noncitizen was admitting to the sufficiency of the facts in relation to a judicial proceeding sufficient to establish a conviction under the statute. In Maricopa County, Arizona, the drug diversion program does have the defendant sign a written confession, but that paper stays with TASC personnel (a private company), not the judge or the prosecutor. If the defendant completes the program, the TASC file is closed and only the certificate of completion is transmitted to the prosecutor. If the defendant fails the program, only then is the written confession transferred to the prosecutor, who then can use the written confession to re-start the prosecution. This system should be sufficient to avoid a conviction for immigration purposes. Thanks to Margarita Silva and Jonathan Moore.
IMMIGRATION CONSEQUENCES - NEW YORK DEFERRED ADJUDICATION
The New York City Bar Association issued a report calling for more pre-plea/deferred prosecution diversion programs (as opposed to deferred adjudication programs that require an upfront guilty plea and thus often leave immigrants deportable), since immigrants should have meaningful access to alternatives to incarceration that can also operate as alternatives to deportation. See http://www.nycbar.org/pdf/report/Immigration_Consequences_Report.pdf).