Criminal Defense of Immigrants


§ 8.60 iv. Not Guilty by Reason of Insanity

Skip to § 8.

For more text, click "Next Page>"

There is a grave risk that a not guilty by reason of insanity (NGI) disposition constitutes a conviction, at least under California procedure, since the defendant is required first to enter a guilty plea, and in effect be convicted, before entering a NGI plea, and receiving treatment rather than a sentence.  It is possible to argue to the contrary, based on “basic principles” such as the “not guilty” part of the “not guilty by reason of insanity” plea.  Whether the NGI plea results in a conviction and whether the resulting incarceration constitutes a sentence are two different questions.  Pre-1996 judicial decisions are consistent with the new statutory definition of conviction,[145] except that the judicial decisions did not hold that suspended imposition of sentence constituted a sentence imposed.  The DHS cannot convincingly argue that the new definition was intended to overturn older cases that differentiated between treatment and punishment.  On the other hand, in Matter of Roldan[146] (the case Lujan-Armendariz v. INS[147] only partially overturned), the INS made a successful argument that the new definition of conviction[148] should be followed to the letter, as if there had been no preceding judicial decisions on this question.  In that case, the current definition of sentence literally requires only a “period of . . . confinement ordered by a court of law.”  The government might contrast that with the 180-day bar to showing good moral character that states “confined as a result of a conviction to a penal institution.”[149]

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

[146] Matter of Roldan, 22 I. & N. Dec. 512 (BIA 1999) (en banc) (new IIRAIRA statutory definition of conviction, INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A), meant that a state court action to “expunge, dismiss, cancel, vacate, discharge or otherwise remove a guilty plea or other record of guilt or conviction by operation of a state rehabilitative statute” does not eliminate the conviction for immigration purposes), overruled by Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000).

[147] Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000).

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

[149] INA § 101(f)(7), 8 U.S.C. § 1101(f)(7).




Whether an plea of not guilty by reason of insanity plea is a conviction for immigration purposes is still unsettled. In an insanity case, the actual plea is not "guilty except for ..." It is "not guilty by reason of insanity." That is because insanity negates an essential element of the offense: the intent. Therefore, a "not guilty by reason of insanity" finding is arguably not a conviction. Unfortunately, in California and other states, you first have to enter an actual guilty plea prior to being found not guilty by reason of insanity. One could argue that the ultimate finding of not guilty was equivalent to post-conviction relief based on a substantive flaw in the proceedings. Namely, the lack of intent, and therefore, lack of guilt. Another available argument would be based upon Retuta v. Holder, 591 F.3d 1181 (9th Cir. Jan. 7, 2010), on the theory that no criminal sentence/fine can be imposed following a guilty plea, in some states like Oregon, and the (civil) commitment that can follow is not a punishment/penalty/restraint under INA 101(a)(48)(A)(ii). In Corpuz v. Holder, 697 F.3d 807 (9th Cir. Aug. 31, 2012), the court, in dictum found otherwise, without explanation, but then whittled off enough time through constructive good time credits to enable a respondent to qualify for 212(c) relief with 4 years and 10 months imprisonment, crediting most of the time in civil lock up. Thanks to Jon Garde, Lisa Brodyaga, and Joseph Justin Rollin