Criminal Defense of Immigrants

(B)  Immigration Status When Conviction Occurs.  A conviction cannot trigger deportation unless it occurs after admission.[17]  Some grounds of deportation also have effective dates.  See, e.g., the domestic violence ground of deportation.[18]  Some forms of relief also depend upon the date of conviction. See, e.g., § 24.28, infra.  If new legislation changes the law, that change may have an effective date.  Counsel should be alert to see this situation developing, since it may create an opportunity to create a safe haven by arranging to enter a plea before the effective date of a new law.

In a case that does not involve the withholding of adjudication of guilt, the statutory definition of “conviction”[19] requires entry of a “formal judgment of guilt” before immigration authorities can initiate removal proceedings.  This definition requires a determination of guilt plus imposition of sentence.  See § 7.15, supra.[20]  This is consistent with federal practice, which defines the entry of judgment in a criminal case as a finding of guilt plus sentencing.[21]

The same rule holds true even where formal adjudication is withheld, as for example where probation is granted.  This is because for immigration purposes, the statutory definition of conviction where adjudication is withheld, still requires a plea of guilty or no contest or verdict of guilty, or admission of sufficient facts, and in addition, that “(2) the judge has ordered some form of punishment, penalty, or restraint on the person’s liberty to be imposed.”[22]  Therefore, sentence must be imposed before a conviction will exist under this definition for deportation purposes, even if adjudication is withheld.  See § § 7.16-7.20, supra.

[17] See § § 17.5-17.8, infra.

[18] See § 22.15, infra.

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

[20] See Griffiths v. INS, 243 F.3d 45 (1st Cir. 2001); see also Aguilera-Enriquez v. INS, 516 F.2d 565, 570 (6th Cir. 1975) (a person has not been convicted of a federal crime for purposes of deportation until sentencing has been conducted and judgment has been entered); Matter of Winter, 12 I. & N. Dec. 638 (BIA 1968) (no conviction despite guilty plea); Matter of LR, 7 I. & N. Dec. 318, 322 (BIA 1956, AG 1957); Matter of O, 7 I. & N. Dec. 539, 541 (BIA 1957).

[21] See Fed.R.App.P. 4(b) (conviction is not final for purposes of appeal until entry of judgment after sentencing); Fed.R.Crim.P. 32(d) (a guilty plea does not become final and may be withdrawn for any fair or just reason before sentence is imposed); Teague v. Lane, 489 U.S. 288, 314 n.2, 109 S.Ct. 1060, 1077 n.2 (1989) (O’Connor, J., joined by Rehnquist, C.J., Scalia, J., and Kennedy, J.) (“a criminal judgment necessarily includes the sentence imposed upon the defendant”); Flynt v. Ohio, 451 U.S. 619, 620, 101 S.Ct. 1958, 1959 (1981) (“Applied in the context of a criminal prosecution, finality is normally defined by the imposition of the sentence.”); 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, 166 (1937); Miller v. Aderhold, 288 U.S. 206, 210-11, 53 S.Ct. 325, 325-26 (1933); United States v. Gottlieb, 817 F.2d 475, 476 (8th Cir. 1987) (orders regarding a guilty plea are not final decisions until after sentencing).

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