Criminal Defense of Immigrants

 

(A) In General.  Many of the worst crime-related immigration consequences flow from criminal convictions.  The best news for juvenile defenders is that an adjudication of a criminal offense in juvenile court does not constitute a criminal “conviction” for immigration purposes, and will therefore not trigger any adverse immigration consequences that flow from a “conviction.”[75]  See generally § 12.21, infra.

 

                An adjudication of juvenile delinquency under the federal Juvenile Justice and Delinquency Prevention Act[76] is not a conviction of a crime, but instead a determination of the status of the offender. A person who is a “juvenile delinquent” under the Act has therefore not been convicted of a crime.[77]  An act of “juvenile delinquency” is a “violation of a 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.”[78]  An adjudication of juvenile delinquency is neither a felony nor a misdemeanor.[79]

 

                The BIA has rejected the argument that the new 1996 statutory definition of “conviction”[80] changed this rule.  It reaffirmed its longstanding rule “that juvenile delinquency proceedings are not criminal proceedings, that acts of juvenile delinquency are not crimes, and that findings of juvenile delinquency are not convictions for immigration purposes.”[81]  If the offense is one for which transfer to adult court is discretionary under the Federal Juvenile Delinquency Act [FJDA], the proceedings do not result in a conviction unless the state in fact transferred the juvenile to adult court.[82]

 

                In Devison, the Board found that the New York youthful offender adjudication procedures set forth in Article 720 of the New York Criminal Procedure Law are similar in nature and purpose to the FJDA, and therefore do not result in a “conviction.”[83]  In addition, the BIA held that the resentencing of a youthful offender following a violation of probation did not convert the youthful offender adjudication into a judgment of conviction.  An adjudication that a minor is a juvenile delinquent which is originally not a conviction cannot later be converted to a conviction.[84]

 

                If a minor is transferred from juvenile court to adult court, and there convicted, the disposition normally constitutes a conviction for immigration purposes.  See § 12.21, infra.  If the minor, however, pleads in adult court to a lesser offense that would not have qualified for transfer to adult court under the Federal Juvenile Delinquency Act, [85] there is a strong argument that it does not constitute a conviction for immigration purposes.  See § 12.13, infra.

 

While a finding of juvenile delinquency in juvenile court does not qualify as a conviction, immigration law does specify two adverse immigration consequences from certain juvenile-court findings: a bar to Family Unity, see § 12.8(B), infra, and a domestic violation TRO violation ground of deportation.  See § 12.8(C), infra.  Although the Adam Walsh Act provided an expanded definition of conviction for certain purposes, to include certain adjudications of juvenile deliquency, this definition does not apply to the new family-visa petition bar or new ground of deportation for those convicted of the federal offense of failure to register as a sex offender.  See § 12.8(D), infra.

[75] Matter of Devison, 22 I. & N. Dec. 1362 (BIA 2000); Matter of De La Nues, 18 I. & N. Dec. 140 (BIA 1981); Matter of Ramirez-Rivero, 18 I. & N. Dec. 135 (BIA 1981) (foreign conviction); Matter of CM, 5 I. & N. Dec. 327 (BIA 1953) (juvenile finding of commission of crime involving moral turpitude does not constitute a “conviction” or trigger inadmissibility); Matter of F, 4 I. & N. Dec. 726 (BIA 1952); Matter of A, 3 I. & N. Dec. 368 (BIA 1948); Matter of O’N, 2 I. & N. Dec. 319 (AG 1945). The State Department adopted these holdings by regulation.  52 Fed. Reg. 17,942 (May 13, 1987) (amending former 22 C.F.R. § § 41.91(a)(9) and (10) and 42.91(a)(9) and (10)) (regulation does not apply to a juvenile transferred to adult court for a crime of violence).

[76] Pub. L. No. 93-415, § § 101-102, 88 Stat. 1109 (1974).

[77] 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).

[78] 18 U.S.C. § 5031.

[79] United States v. Gonzalez-Cervantes, 668 F.2d 1073 (9th Cir. 1981).

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

[81] Matter of Devison, 22 I. & N. Dec. 1362 (BIA 2000) (en banc); Matter of De La Nues, 18 I. & N. Dec. 140 (1981); Matter of Ramirez-Rivero, 18 I. & N. Dec. 135 (1981).

[82] Matter of Devison, at 16; Matter of CM, 5 I. & N. Dec. 327 (BIA 1953) (juvenile finding of commission of crime involving moral turpitude does not constitute a “conviction” or trigger inadmissibility).

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

[84] Matter of Devison, 22 I. & N. Dec. 1362 (BIA 2000) (juvenile adjudication did not become a conviction, for immigration purposes, even after the offender was resentenced following a violation of probation).

[85] 18 U.S.C. § 5032.