Criminal Defense of Immigrants


§ 7.29 (B)

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(B)  Diversion, Deferred Entry of Judgment or Deferred Adjudication.  Completing a pre-plea diversion program, and obtaining dismissal of the charges, does not constitute a conviction under immigration law as long as there has been no plea of guilty or no contest and no admission of sufficient facts entered at any time.[156]  The new statutory definition of conviction requires a plea or admission of sufficient facts to constitute a conviction.  See § 7.11, supra.  A dismissal absent these statutory requirements cannot constitute a conviction.


If a plea of guilty or no contest has been entered, however, before a program such as diversion, deferred entry of judgment, or deferred adjudication has been granted, there is a conviction for immigration purposes under the statutory definition, regardless of whether or not a conviction exists for state criminal purposes.[157]  See N. Tooby, Post-Conviction Relief for Immigrants, Chapter 8 (2004).


[156] Matter of Grullon, 20 I. & N. Dec. 12 (BIA 1989) (disposition under Florida’s pretrial intervention program, Fla. Stats. § 944.025, held not a conviction for immigration purposes); Matter of Ozkok, 19 I. & N. Dec. 546 (BIA 1988).  This has not changed under IIRAIRA § 322, which amends INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A), to create a statutory definition of conviction that is more encompassing than the definition set out by the BIA in Matter of Ozkok, supra.  See Matter of Punu, 22 I. & N. Dec. 224 (BIA 1998) (en banc).  But see United States v. Zamudio, 314 F.3d 517 (10th Cir. 2002) (Utah plea in abeyance is a conviction for immigration purposes, satisfying INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A), as a plea “to sufficient facts to warrant a finding of guilt.”).

[157] Matter of Punu, 22 I. & N. Dec. 224 (BIA 1998) (Texas deferred adjudication is a conviction for immigration purposes).




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.