Criminal Defense of Immigrants

 

(C)  An Infraction is Not a Crime.  In order to trigger the aggravated felony ground of deportation, the conviction must be for a crime, as defined in the jurisdiction in which the offense was committed.[135]  Where the conviction is for a minor offense that is not designated as a crime in the jurisdiction in which it was committed, a conviction does not trigger deportation under this ground.[136]  For example, a citation for marijuana possession in a federal park might not be considered a conviction for a crime.[137]  See § 7.24, supra.

 

Where the prosecution could proceed either civilly or criminally, and chose to prosecute the defendant for a crime, the resulting conviction is considered to be for a crime.[138]

 

The BIA has recently held that the phrase “judgment of guilt” under the statutory definition of “conviction”[139] 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.”[140]  The court found that a “criminal” proceeding under Oregon law[141] that resulted in a finding of guilt was not a conviction for immigration purposes because the proceeding involved a “violation” rather than a crime, for a number of reasons: conviction of a violation does not result in any legal disability under Oregon law;  the defendant does not have a right to a jury or court-appointed counsel in those proceedings; and the prosecution need only show guilt by a preponderance of the evidence, rather than beyond a reasonable doubt.[142]  Therefore, the proceedings were not criminal proceedings under federal immigration law, and the result was not a conviction for purposes of triggering a conviction-based ground of deportation.

 

Other states may have similar proceedings that will not result in a “conviction” for immigration purposes.[143]  For example, in California, certain misdemeanor offenses, notably petty theft,[144] can be prosecuted as misdemeanors or infractions.[145]  The infraction is similar to the Oregon petty offense procedure held in Eslamizar not to be a conviction in several important respects:

 

                (1)  “An infraction is not punishable by imprisonment.”[146]

 

                (2)  “A person charged with an infraction shall not be entitled to a trial by             jury.”[147]

 

                (3)  There is no right to the assistance of court-appointed counsel.[148]

 

Although the defendant must be proved guilty beyond a reasonable doubt,[149] on balance, the California infraction procedure cannot be said to be a criminal procedure, because of the reasons stated above.  In Eslamizar, the Board en banc held “that by ‘judgment of guilt’ Congress most likely intended to refer to a judgment in a criminal proceeding, that is, a trial or other proceeding whose purpose is to determine whether the accused committed a crime and which provides the constitutional safeguards normally attendant upon a criminal adjudication.”[150]  Even though the burden of proof for an California infraction is beyond a reasonable doubt, that single factor should be insufficient to convert a proceeding without the right to a jury trial, without the right to appointed counsel, and for which no jail sentence is permissible, into “judgment in a criminal proceeding, that is, a trial or other proceeding whose purpose is to determine whether the accused committed a crime and which provides the constitutional safeguards normally attendant upon a criminal adjudication.”[151]  Therefore, an infraction under California law should not be considered a criminal conviction, for immigration purposes, under Eslamizar.

[135] Ex parte Isojoki, 222 Fed. 151 (N.D. Cal. 1915).

[136] Matter of Van Dessel, 243 F.Supp. 328 (E.D. Pa. 1965) (fornication considered to be a minor offense); Matter of C, 2 I. & N. Dec. 367 (BIA 1945).

[137] Since a citation for possession of marijuana in a National Park does not carry a jail sentence, it is possible it does not constitute a crime and therefore cannot trigger deportability as a conviction of a crime related to a controlled substance.  See Matter of Eslamizar, 23 I. & N. Dec. 684 (BIA Oct. 19, 2004) (en banc).

[138] Matter of W and B, 5 I. & N. Dec. 87 (BIA 1953).

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

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

[141] Oregon Revised Statutes § 153.076.

[142] Matter of Eslamizar, 23 I. & N. Dec. at 687.

[143] See, e.g., California Penal Code § 19.6.

[144] California Penal Code § § 484(a), 488.

[145] California Penal Code § § 17(d), 19.8 (giving list of offenses).

[146] California Penal Code § 19.6.

[147] Ibid.

[148] Ibid.

[149] See California Penal Code § 19.7 (“. . . all provisions of law relating to misdemeanors shall apply to infractions including . . . burden of proof.”).

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

[151] Ibid.