Criminal Defense of Immigrants


§ 7.30 (C)

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(C)  Immigration Effect.  Successful completion of a deferred prosecution agreement does not constitute a conviction under the statutory definition of conviction for immigration purposes, because the defendant completes the required conditions and obtains a dismissal of all charges.  No plea of guilty or no contest has been entered at any time.  There has been no admission of facts sufficient to support a conviction.  There has never been a verdict of guilty entered.  The elements of the statutory definition of conviction have not been met.  See § 7.11, supra.  There is therefore no conviction for immigration purposes.


                It is also possible to argue that a deferred prosecution agreement does not constitute a conviction under the IIRAIRA statutory definition of conviction for immigration purposes, provided the court does not order any restraint of the defendant during the deferred-prosecution period, but merely approves the agreement between the parties.[159]


                (C)  Particular States:  New York.  As a general matter, the rules to remember for New York convictions are:


                (1)  Adjournment in Contemplation of Dismissal (ACD) is a pre-plea disposition and not a conviction for immigration purposes.


                An “Adjournment in Contemplation of Dismissal” or “ACD” is an immigration neutral disposition in that it is a pre-plea disposition in which the prosecution eventually dismisses the case after a specified period of time (usually 6 months or a year) without ever taking any plea on the issue of guilt or making any determination. During the ACD period, the criminal case is open. Since foreign nationals who fail to comply with ACD face criminal consequences, the immigration authorities are likely to treat applicants on ACD as potentially subject to immigration consequences and deny applications on the basis that there is no certainty that they will satisfactorily comply with the ACD program. The means of contesting this characterization may be proof that failure to comply with ACD will only result in an immigration-neutral result. Do individuals who fail to comply end up with a new arraignment at which to fight their original charge, or does it result in a slow plea in which the judge decides guilt or innocence on the basis of the police reports alone? ACDs almost always result in dismissals. The worst thing that can happen is that the case is placed back on the calendar and is tried.


                (2) Conditional Discharge (CD) is a post-plea disposition and is a conviction for immigration purposes;


                (3) Youthful Offender (YO) is not a conviction for immigration purposes.  See § 7.23, supra. 

[159] Thanks to Jennifer Foster for this argument.



No "admission of guilt" was required under this domestic violence no-plea diversion statute. Penal Code 1001.6(c). It was enacted by Stats. 1979, c. 913, p. 3141, 1, last amended by Stats. 1993, c. 221, 1, and repealed in 1995, repeal effective Jan. 1, 1996.

Ninth Circuit

Melendez v. Gonzales, __ F.3d __, 2007 WL 2713121 (9th Cir. Sept. 19, 2007) (a noncitizen may not obtain a Lujan expungement for immigration purposes on a second offense were the noncitizen has already been given "pretrial diversion" treatment on a prior offense, even though "pre-trial diversion" does not require the noncitizen to enter a plea of guilty to a controlled substances offense).


The Family Violence Education Program (FVEP) under Conn. Gen. Stat. 54-56e is a pre-trial diversionary program. When a defendant enters this program, s/he is not required to enter a guilty plea on the record. It is typically a one-year program where certain requirements must be met, including taking domestic violence classes, avoiding any other arrest, etc. It is not a conviction in Connecticut and should not be considered a conviction for immigration purposes as long as the program was successfully completed, since it does not meet the statutory requirements of a conviction under immigration law because no plea or admission was entered at any time. INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A).
"Diversion" under Kansas law is arguably not a conviction for immigration purposes because the process involves an agreement between the defendant and prosecutor, with no punishment or restriction imposed by a judge. Thanks to David Link