Criminal Defense of Immigrants

A conviction rendered in absentia, without adequate notice to the defendant, will not trigger deportation.[169]  The failure to attend trial where notice and an opportunity to be present were provided, however, will not preclude the immigration use of a conviction rendered in absentia.[170]  For visa processing purposes, the Foreign Affairs Manual provides:

A conviction in absentia does not constitute a conviction.  However, any participation in judicial proceedings by the accused may imply that the conviction was not one made in absentia.  For example, if a conviction in absentia has been appealed by the person convicted, the person has appeared for that purpose and the conviction has been affirmed, it is no longer considered a conviction in absentia.  Similarly, representation by the accused in a trial proceeding may preclude a finding that the trial was conducted in absentia.  Consular officers shall submit all cases where the facts suggest that a conviction may have been made in absentia to CA/VO/L/A for an advisory opinion.[171]

There is no reason this rule would not also apply to all other immigration consequences.

[169] Ex parte Koerner, 176 Fed. 478 (E.D. Wash. 1909); Ex parte Watchorn, 160 Fed. 1014 (S.D.N.Y. 1908); Matter of Piraino, 12 I. & N. Dec. 508 (BIA 1967) (Italian); 22 C.F.R.

§ 40.21(a)(4).

[170] Weinbrand v. Prentis, 4 F.2d 778 (6th Cir. 1925) (conviction held valid when testimony was taken in the absence of the respondent, who had been given notice and an opportunity to be present); Matter of Romandia-Herreros, 11 I. & N. Dec. 772 (BIA 1966) (Mexican narcotics conviction not considered in absentia when court had personal jurisdiction over defendant, even though he was prosecuted in a foreign country for an offense committed in the United States); Matter of VDB, 8 I. & N. Dec. 608 (BIA 1960) (conviction considered valid, though defendant was not present, where he had notice of the proceeding, appeared in court after its conclusion, failed to appeal, and paid the fine).

[171] 9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a) N3.4-2.