(A)  First, a conviction in adult court of a person who was under 18 at the time of the offense does not constitute a conviction for immigration purposes where a state or foreign criminal justice system does not contain a juvenile court analogous to those in the United States.[1]  Where a jurisdiction has no juvenile court system, immigration authorities examine the record of conviction to determine whether the minor could have been treated as a juvenile under the Federal Juvenile Delinquency Act.[2]  In one case, the court refused to allow the deportation of a noncitizen who had faced criminal prosecution at a time when New York did not have a juvenile procedure for handling offenders of that age, relying in part on the noncitizen’s sentence to an institution for juveniles. [3]

 

                (2)  Second, a disposition in adult court, of a person who was under 18 or 19 at the time of the offense, under a special state statute that is similar in nature and purpose to the FJDA (e.g., New York State Youthful Offender dispositions), will not constitute a conviction for immigration purposes.[4] 

 

                If a state bypasses state juvenile court, and transfers the minor to adult court, or initiates adult proceedings there, older cases held that resulting dispositions constituted convictions for immigration purposes.[5]  That is no longer the law insofar as foreign convictions are concerned, which cannot be considered “convictions” for immigration purposes unless it would have been possible to transfer the case to adult federal court if prosecuted here.  See § 12.14, infra.  This test has the considerable advantage of adopting one uniform national standard, and avoiding the unfairness of treating similarly situated persons differently depending on the vagaries of state law.[6]  Counsel can argue that state adult dispositions should be evaluated under the same test used to evaluate foreign convictions.

 

[1] Nonetheless, if a youthful delinquent was prosecuted when local laws did not contain a provision for handling juvenile offenders, s/he might not be considered convicted of a crime if s/he would be deemed a juvenile offender under current standards.  Tutrone v. Shaughnessy, 160 F. Supp. 433 (S.D.N.Y. 1958) (New York); Matter of O’N, 2 I. & N. Dec. 319 (AG 1945) (Canada).

[2] Tutrone v. Shaughnessy, 160 F. Supp. 433 (S.D.N.Y. 1958); Matter of O’N, 2 I. & N. Dec. 319 (AG 1945).

[3] Tutrone v. Shaughnessy, 160 F. Supp. 433 (S.D.N.Y. 1958).

[4]  E.g., Matter of Devison, 22 I. & N. Dec. 1362 (BIA 2000) (interpreting a New York state Youthful Offender adjudication).

[5] Morasch v. INS, 363 F.2d 30 (9th Cir. 1966); Matter of CM, 5 I. & N. Dec. 327 (BIA 1953).

[6] See, e.g., Lopez v. Gonzales, 549 U.S. ___, 127 S.Ct. 625, 633 (2006) (“Congress knows that any resort to state law will implicate some disuniformity in state misdemeanor-felony classifications, but that is no reason to think Congress meant to allow the States to supplant its own classifications when it specifically constructed its immigration law to turn on them.”); Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905, 912 (9th Cir. 2004); Matter of LG, 21 I. & N. Dec. 89 (BIA 1995) (interpreting aggravated felony trafficking definition in light of federal standard); Matter of Manrique, 21 I. & N. Dec. 58 (BIA 1995) (interpreting first offender status in light of federal standard).

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).