(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).

Second Circuit

CONVICTION - JUVENILE
Savchuk v. Mukasey, 518 F.3d 119 (2d Cir. Mar. 4, 2008) (New York conviction of grand larceny in the Fourth Degree, in violation of Section 155.30 of the New York Penal Law, a Class E felony, constituted a conviction, under INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A), for deportation purposes under INA 237(a)(2)(A)(ii), 8 U.S.C. 1227(a)(2)(A)(ii) for multiple CMT convictions, despite the fact that it was committed while the noncitizen was under the age of 18 years, since he pled guilty after he turned eighteen and New York treated him as an adult offender, rejecting the argument that if this case had arisen under federal criminal law, the Federal Juvenile Delinquency Act would not have permitted transfer to adult court, and the federal juvenile adjudication would not have been considered a conviction for immigration purposes).

The court stated: "While Savchuck's approach is inventive, it finds no support in the text of 8 U.S.C. 1101(a)(48)(A) . . . . The statute encompasses state court adjudications and does not sanction disregarding them because of the theoretical possibility that criminal conduct might be treated differently by federal authorities. Savchuck's position has been rejected by the First and Ninth Circuits. See Vieira Garcia v. INS, 239 F.3d 409, 413 (1st Cir. 2001) ("Once adjudicated by the state court, as either a juvenile or an adult, we are bound by that determination."); Vargas-Hernandez v. Gonzales, 497 F.3d 919, 923 (9th Cir. 2007) (finding state treatment of petitioner as adult determinative). We join these Circuits and hold that, because Savchuck's grand larceny conviction qualifies as a conviction under 8 U.S.C. 1101(a)(48)(A), the BIA correctly found him removable." (Savchuk v. Mukasey, 518 F.3d 119, 122 (2d Cir. Mar. 4, 2008).

Fourth Circuit

CONVICTION - JUVELINE DELINQUENCY NOT A "CONVICTION"
United States v. Davis, 234 F.Supp.2d 601 (E.D.Va.2002), affirmed 359 F.3d 340 (4th Cir. 2002) (adjudications of juvenile delinquency, under Virginia law, did not constitute prior "convictions" sufficient to constitute predicate conviction for federal offense of being felon in possession of firearm).

Eleventh Circuit

JUVENILE - ADULT CONVICTION
Singh v. U.S. Atty. Gen., ___ F.3d ___, ___, 2009 WL 604370 (11th Cir. Mar. 10, 2009) (per curiam) (a conviction of a noncitizen in adult court constitutes a conviction for immigration purposes, under INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A), no matter how old the person was at the time of the commission of the offense); accord, Vieira Garcia v. INS, 239 F.3d 409, 413-414 (1st Cir. 2001) (petitioner who was 17 years old at the time of the offense and who was convicted as an adult in Rhode Island, had suffered a conviction for immigration purposes because the INA's definition of conviction was clear and unambiguous, the immigration authorities were bound by the state court's determination to adjudicate the petitioner as an adult: "if Congress had wanted the INS to follow the FJDA at all times, it would have so stated."); Vargas-Hernandez v. Gonzales, 497 F.3d 919, 922-23 (9th Cir. 2007) (16 year-old's state court conviction as an adult constituted a conviction under INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A)); Savchuck v. Mukasey, 518 F.3d 119, 122 (2d Cir. 2008) (definition of conviction under INA

Other

JUVENILES - JUVELINE DELINQUENCY NOT A "CONVICTION"
United States v. Davis, 234 F.Supp.2d 601 (E.D.Va.2002), affirmed 359 F.3d 340 (4th Cir. 2002) (adjudications of juvenile delinquency, under Virginia law, did not constitute prior "convictions" sufficient to constitute predicate conviction for federal offense of being felon in possession of firearm).