Criminal Defense of Immigrants


§ 7.29 (A)

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(A)  In General.  Dismissal will not constitute a conviction for immigration purposes as long as it does not follow either a plea of guilty or no contest, or an admission of “sufficient facts to warrant a judgment of guilt.”[153]  This can include dismissal as a result of a pre-trial motion or for insufficient evidence or for any other reason, as long as there has been no prior plea of guilty or no contest or admission of sufficient facts.  Since the requirements of the statutory definition of conviction[154] are not met, there is no conviction for immigration purposes.  In fact, the Fourth Circuit reversed a BIA decision as arbitrary when it found a conviction to be a particularly serious crime on the basis of a charge that had been dismissed.[155]

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

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

[155] See Yousefi v. U.S. I.N.S., 260 F.3d 318 (4th Cir. 2001) (reversing BIA decision that a conviction constituted a “particularly serious crime,” where the court arbitrarily based its decision on the irrelevant fact of a charge in the indictment that had been dismissed).




Practice Advisory on Arizona TASC and similar programs: 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. In Maricopa County, Arizona, the drug diversion program requires the defendant to 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. Note that it is possible, however, for an ICE attorney to ask the prosecutor for a copy of the confession, to use 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. Thanks to Kathy Brady, Immigrant Legal Resource Center.