Criminal Defense of Immigrants


§ 12.13 (A)

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(A)  In General.  A minor convicted in adult court of a crime involving moral turpitude may be inadmissible or deportable if the court expressly finds the minor unfit for the existing juvenile proceedings and treats the minor as an adult offender.[111]  In addition to the other reasons for resisting a finding of unfitness, counsel should consider the adverse immigration consequences of an adult conviction.  This can mean a lifetime of banishment from friends and family after the sentence has been served.  The extent of these potential consequences suggests the desirability of doing everything humanly possible in juvenile court, including admitting liability, to avoid a finding of unfitness, even when the case might be very defensible in adult court.


                It is also very desirable for immigration reasons to obtain a commitment to a juvenile facility, such as the California Youth Authority,[112] after a juvenile has been convicted in adult court, since the conviction may be expunged upon honorable discharge, which can remove some immigration consequences of some convictions, such as first offense simple possession of drugs, and perhaps others in at least the Ninth Circuit.  See § 11.20, supra.  The adult conviction remains a conviction, even if the minor has been committed to a juvenile facility.[113]


                Therefore, a minor transferred to adult court pursuant to a state statute such as Calif. Welfare & Institutions Code § 707 must be defended against the immigration consequences of an adult conviction, as is the case with any other adult criminal defendant.[114] 


                Counsel can attempt to protect juveniles transferred to adult court in several ways.  First, use standard criminal defense techniques to attempt to arrange a disposition or conviction in adult court that will not trigger adverse immigration consequences for the particular defendant.[115]  Second, if counsel can arrange for an adult conviction of an offense for which the juvenile could not have been transferred to adult court, under the Federal Juvenile Delinquency Act, the juvenile’s immigration counsel can argue that this disposition does not constitute a “conviction” for immigration purposes, using the following argument.  See § 12.19, infra.  Transfer may be legally invalid under certain circumstances.[116]


             The Board of Immigration Appeals held that an adjudication of youthful offender status,[117] which corresponds to a determination of juvenile[118] delinquency under the Federal Juvenile Delinquency Act,[119] does not constitute a judgment of conviction[120] for a crime for immigration purposes.[121]


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

[112] This is to be distinguished from a mere recommendation that the minor be housed on CYA for service of his or her adult state prison sentence, which confers no immigration benefit.

[113] Matter of LR, 8 I. & N. Dec. 269 (BIA 1959); Matter of Ozkok, 19 I. & N. Dec. 546 (BIA 1988); new definition of conviction contained in 8 U.S.C. § 1101(a)(48)(A), INA § 101(a)(48)(A).

[114] See Chapter 2, supra.

[115] See Chapter 5, supra.

[116] United States v. Juvenile, 451 F.3d 571 (9th Cir. June 22, 2006) (consistent with due process, the court may, but is not required to, assume the guilt of a juvenile of the crime charged for purposes of a motion to transfer a juvenile to adult status pursuant to 18 U.S.C. § 5032, but may not assume guilt of uncharged offenses); United States v. Juvenile Male, 336 F.3d 1107 (9th Cir. July 23, 2003) (district court transferred a juvenile to adult prosecution without jurisdiction, where it failed to receive the juvenile’s official records prior to transfer); United States v. Ceja-Prado, 333 F.3d 1046 (9th Cir. June 25, 2003) (case remanded for determination whether defendant was actually a juvenile at the time he entered his guilty plea, since federal courts have no jurisdiction over certain juvenile prosecutions unless cases certified by Attorney General or designated official).

[117] Article 720 of the New York Criminal Procedure Law.

[118] Under federal law, a juvenile is a person “who has not attained his [or her] eighteenth birthday” at the time of the criminal act of juvenile delinquency, although s/he may be retained within the juvenile justice system until the 21st birthday.  18 U.S.C. § 5031.

[119] 18 U.S.C. § § 5031-5042.

[120] INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A) (Supp. IV 1998). 

[121] Matter of Devison, 22 I. & N. Dec. 1362 (BIA 2000) (en banc).



Ninth Circuit

United States v. James, ___ F.3d ___, ___, 2009 WL 467070 (9th Cir. Feb. 26, 2009) (the Federal Juvenile Delinquency Act allows additional criminal charges to be brought against a juvenile who has already been transferred from federal juvenile court to United States District Court for trial as an adult without requiring another juvenile transfer hearing on the additional charges), citing 18 U.S.C. 5032 ("Whenever a juvenile transferred to district court under this section is not convicted of the crime upon which the transfer was based or another crime which would have warranted transfer had the juvenile been initially charged with that crime, further proceedings concerning the juvenile shall be conducted pursuant to the provisions of this chapter." [emphasis added]).
Vargas-Hernandez v. Gonzales, ___ F.3d ___, 2007 WL 2215796 (9th Cir. Aug. 3, 2007) (state conviction of voluntary manslaughter, with 11-year suspended sentence imposed, on condition of serving 365 days in custody as condition of probation, constituted a deportable aggravated felony conviction, despite the fact the defendant was 16 years old at the time of the offense, and argued he would have been treated as a juvenile under the Federal Juvenile Delinquency Act, because the state convicted him in adult court which was binding on the immigration courts); citing Morasch v. INS, 363 F.2d 30, 31 (9th Cir. 1966) (statute permitting deportation upon conviction of two crimes of moral turpitude did not allow for differentiation by age at the time of offense; although Oregon could have treated the alien as a juvenile offender, it chose to treat him as an adult, and court of appeal refused to reclassify the alien's adult conviction as a juvenile adjudication, concluding that "the Service was entitled to take the record as it found it, and neither it nor we are required to import separate juvenile proceedings which were not used by the Oregon court."); Vieira-Garcia v. INS, 239 F.3d 409, 412-14 (1st Cir. 2001) (rejecting argument that, although noncitizen was tried as an adult by Rhode Island, the FJDA should apply; the court noted that INA 101(a)(48)(A) is clear and unambiguous, and the fact that the petitioner pleaded guilty and a judge ordered him imprisoned meant that the petitioner had a "conviction" under the statute: "[n]either we nor the BIA have jurisdiction to determine how a state court should adjudicate its defendants. Once adjudicated by the state court, as either a juvenile or an adult, we are bound by that determination.").