Criminal Defense of Immigrants

(A)  In General.  Under the Juvenile Justice and Delinquency Prevention Act, a federal adjudication of juvenile delinquency determines the offender’s status.[5]  It is not a criminal conviction.[6]  If found delinquent, essentially the court is finding only that there is a “violation of law of the United States committed by a person prior to his [or her] eighteenth birthday which would have been a crime if committed by an adult.”[7]  This law applies to minors whether they are U.S. citizens, lawfully present as a noncitizen, or undocumented.[8]

                Minors who are tried as adults face devastating immigration consequences from convictions.  If at all possible, keep the minor in delinquency proceedings.[9]  If this is not possible, in order to preserve an argument that the adult conviction should be treated as a delinquency disposition in immigration proceedings, attempt to plead the minor to an offense that would not have warranted a transfer to adult court under federal standards.  These offenses are listed at § 12.13(C), infra.

                A minor who admits the truth of charges in delinquency proceedings has not made a damaging “admission” to a controlled substance offense or crime involving moral turpitude.  See § § 12.30, 12.32, infra.  However, to avoid the possibility an immigration court or agency might disagree, defense counsel should where possible plead nolo contendere to delinquency charges involving moral turpitude or a controlled substance.

                Many states’ juvenile court laws protect the privacy of the clients with strict confidentiality rules that may make it difficult or impossible for the DHS to obtain copies of juvenile court records.  This may mean the government cannot obtain proof from this source to establish juvenile court findings to trigger the few immigration consequences they may cause, or to establish conduct-based grounds of deportation, inadmissibility, or disqualification from relief.

[5] 18 U.S.C. § 5032.  A federal court lacks jurisdiction under the Federal Juvenile Delinquency Act, 18 U.S.C. § 5031, et seq., when there is a lack of evidence to establish the defendant was under 18 at the time of the offense.  United States v. Ceja-Prado, 333 F.3d 1046, 1048 (9th Cir. 2003).

[6] United States v. Gonzalez-Cervantes, 668 F.2d 1073 (9th Cir. 1981); United States v. Brian N., 900 F.2d 218 (10th Cir. 1990); United States v. Frasquillo-Zomosa, 626 F.2d 99, 101 (9th Cir. 1980); United States v. Hill, 538 F.2d 1072, 1075 (4th Cir. 1976); United States v. King, 482 F.2d 454, 456 (6th Cir. 1973); Fagerstrom v. United States, 311 F.2d 717, 720 (8th Cir. 1963). 

[7] 18 U.S.C. § 5031.

[8] United States v. Doe, 862 F.2d 776, 779 (9th Cir. 1988). 

[9]      Some state laws require juveniles to be tried as adults for certain crimes.  For example, Oregon’s Measure 11 (codified as O.R.S. § 137.700), requires mandatory minimum adult sentences for crimes that include murder, manslaughter, sexual assault, and robbery.  Under the juvenile offender scheme, minors who were at least 15 years old at the time of the offense are also subject to the mandatory sentences for these crimes.  Neither adults nor juveniles are allowed early release or any other reduction of the sentence.  In a Ninth Circuit case, where the conviction of a noncitizen juvenile under the Oregon scheme led to removal, the court denied a motion to reconsider and refused to analyze the constitutionality of the law.  Mendez-Alcaraz v. Gonzales, 464 F.3d 842 (9th Cir. 2006).  The dissent objected that the defendant was tried as an adult without having been granted a hearing to determine whether to do so.  Id. at 852.  Other states differ as to the circumstances under which a minor can be tried as an adult.  The Federal Juvenile Delinquency Act prohibits anyone age 12 or younger from being tried as an adult.  Therefore, a practitioner should examine the rules in the relevant jurisdiction to avoid the client’s statement being used as an admission of a crime.  See § § 12.30, 12.32, infra.