Criminal Defense of Immigrants


§ 7.32 5. Deferred Sentence

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“Deferred sentence” involves entry of a plea of guilty or no contest, but deferral of sentence.  In order to constitute a conviction, the new definition requires a plea of guilty or no contest, or a verdict of guilty, and also requires that “the judge has ordered some form of punishment, penalty or restraint on the alien’s liberty to be imposed.”[160]  If the court defers making any such order imposing punishment, penalty, or restraint on liberty, until after an agreed deferral period of time has passed, and then dismisses all charges, without ever imposing any form of punishment, penalty, or restraint, no “conviction” has occurred at any time under the new definition.[161]  Note that any conditions of this arrangement that involve any “restraint on the alien’s liberty” could not be imposed by court order.  However, they may be included in a private agreement between prosecution and defense.  When they have been satisfied, prosecution and defense can jointly move the court to dismiss all charges.


                While the defendant in fact may be under some form of restraint, such as release on bail conditions or on personal recognizance, this restraint is not imposed as a result of the entry of the plea, and thus should not be considered as sufficient punishment, penalty, or restraint to satisfy the sentence requirement of the statutory definition of conviction.  This type of restraint, however, could lead an immigration or federal court mistakenly to conclude a conviction exists, so this type of safe haven is riskier than those not involving any plea or admission of sufficient facts.

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

[161] See Pino v. Landon, 349 U.S. 901 (1955) (stating that a criminal conviction may not be considered by the immigration authorities until it is final); see also Parr v. United States, 351 U.S. 513, 518, 76 S.Ct. 912, 916 (1956) (“Final judgment in a criminal case means sentence.”) (quoting Berman v. United States, 302 U.S. 211, 212, 58 S.Ct. 164 (1937)); United States v. Douglas, 974 F.2d. 1046, 1048 n.2 (9th Cir. 1992), citing United States v. Gottlieb, 817 F.2d 475, 476 (8th Cir. 1987) (orders regarding a guilty plea are not final decisions until after sentencing); Aguilera-Enriques v. INS, 516 F.2d 565, 571 (6th Cir. 1975) (“Once a sentencing [on a guilty plea] is completed . . . the conviction is final for deportation purposes.”); Griffiths v. INS, 243 F.3d 45 (1st Cir. 2001) (holding there was no conviction, under the statutory definition, because after the initial conviction had been reversed on appeal, no sentence whatsoever had thereafter been imposed, so the court had imposed no punishment, penalty, nor restraint on liberty as a result of the new disposition of the criminal case).



Fifth Circuit

United States v. Mondragon-Santiago, ___ F.3d ___, 2009 WL 782894 (5th Cir. Mar. 26, 2009) ("Deferred adjudication probation in Texas does not impose a sentence of imprisonment, and thus does not involve a term of imprisonment. From this analysis we conclude that Mondragon-Santiago's four years of deferred adjudication probation under Texas law is not a term of imprisonment under 1101(a)(48)(B), and thus is not an aggravated felony under 1101(a)(43)(F).").