Criminal Defense of Immigrants

(A)  In General.  Where a defendant is transferred to adult court and convicted there, that disposition constitutes a conviction for immigration purposes, even though the defendant was under 18 at the time of the commission of the offense.[103]  In other words, where a state criminal justice system treats a person who was a minor when the offense was committed, as an adult, the resulting adult disposition is a conviction that can trigger adverse immigration consequences.[104]

                There are two exceptions to this rule. 

[103] Uritsky v. Gonzales, 399 F.3d 728 (6th Cir. 2005) (Michigan sentence to probation, under Michigan Youthful Trainee Act, constituted a conviction for immigration purposes), distinguishing Matter of Devison, 22 I. & N. Dec. 1362, 1366 (BIA 2000); Vieira Garcia v. INS, 239 F.3d 409, 413 (1st Cir. 2001) (adult conviction constitutes conviction, for immigration purposes, even though the defendant was a noncitizen aged 17 at the time of the offense); Morasch v. INS, 363 F.2d 30 (9th Cir. 1966) (defendant convicted in adult court at age 18, who was not adjudicated in juvenile court, held convicted for deportation purposes); Circella v. Sahli, 216 F.2d 33 (7th Cir. 1954); Matter of Andrade, 14 I. & N. Dec. 364 (BIA 1973) (defendant who was under 18 at time of conviction in adult court could be deported); Matter of R, 1 I. & N. Dec. 613 (BIA 1943).  Cf. Hernandez-Valensuela v. Rosenberg, 304 F.2d 639 (9th Cir. 1962) (conviction expunged under former Federal Youth Offender Act, 18 U.S.C. § 5010(b)); Adams v. United States, 299 F.2d 327 (9th Cir. 1962) (defendant, under 18 at time of offense, committed by adult court to California Youth Authority). But see Mestre-Morera v. INS, 462 F.2d 1030 (1st Cir. 1972) (defendant sentenced as a youthful offender upon conviction in adult court of conspiracy to possess marijuana could not be deported for it after expungement granted under Federal Youth Correction Act).

[104] Matter of De La Nues, 18 I. & N. Dec. 140 (BIA 1981) (foreign convictions for possession of stolen property, breaking and entering, and theft triggered inadmissibility, where noncitizen did not prove he was treated as juvenile in Cuba under system comparable to that in United States); Matter of CM, 9 I. & N. Dec. 487 (BIA 1961) (defendant who was 18 years old at time of offense and convicted as an adult in California court held convicted for immigration purposes); Matter of P, 8 I. & N. Dec. 517 (BIA 1960) (Federal Youth Correction Act); Matter of N, 3 I. & N. Dec. 723 (BIA 1949); Matter of F, 2 I. & N. Dec. 517 (BIA 1946).  Cf. United States v. Reinoso, 350 F.3d 51 (2d Cir. Nov. 17, 2003) (prior state conviction for armed robbery could be considered in calculating defendant’s offense level, even though prior conviction was vacated as result of his adjudication as a youthful offender; fact that Sentencing Guideline provision governing illegal re-entry did not explicitly provide for the consideration of youthful offender adjudications when noting convictions for which a defendant’s based offense level could be enhanced did not render provision ambiguous, and thus rule of lenity did not apply); United States v. Pereira, 465 F.3d 515 (2d Cir. Oct. 13, 2006) (New York conviction of robbery, with term of imprisonment of 62 months, constituted aggravated felony conviction for purposes of 16-level illegal re-entry sentence enhancement, even though the defendant was adjudicated a youthful offender under New York State law).