Criminal Defense of Immigrants

(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).