Criminal Defense of Immigrants

“Judgment of guilt” under the statutory definition of “conviction”[396] requires that the judgment be issued as part of a criminal proceeding, i.e., “a trial or other proceeding whose purpose it is to determine whether the accused committed a crime and which provides the constitutional safeguards normally attendant upon a criminal adjudication.”  See § 7.24, supra.[397]  Therefore, dispositions of minor criminal cases where no jail sentence is possible, there is no right to a jury trial, and no right to appointed counsel, occur under a procedure that is not considered criminal procedure, so the disposition is not considered a conviction of a crime.  If counsel can reduce a misdemeanor to an infraction or other minor, non-criminal disposition, it will no longer be considered a crime, and therefore cannot be a crime of moral turpitude.  This argument may work, as well, for other conviction-based grounds of deportation and inadmissibility.

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

[397] Matter of Eslamizar, 23 I. & N. Dec. 684, 687 (BIA Oct. 19, 2004).