(B)  Juveniles Transferred to Adult Court May Not Be Held to Suffer Convictions Unless Such Transfer Would Have Been Possible Under the FJDA.  The Board reaffirmed “that the standards established by Congress, as embodied in the Federal Juvenile Delinquency Act, govern whether an offense is to be considered an act of delinquency or a crime.”[122]  The basic principle is that a juvenile who is transferred to adult proceedings and suffers an adult conviction will be held to have suffered a “conviction” for immigration purposes only if s/he could have been transferred to adult court under the FJDA.[123]  Therefore, even if a juvenile is in fact transferred to an adult criminal court, the resulting state-court conviction will not be considered a “conviction” for immigration purposes unless such transfer would have been allowed under the FJDA. 

 

The First Circuit, however, has rejected this argument, holding that a state court conviction as an adult for an offense committed when petitioner was seventeen years old constituted a conviction for purposes of immigration law, and the fact that he might have been treated as a juvenile in another jurisdiction was not a violation of his right to equal protection.[124] 

 

                Forty years ago, the Ninth Circuit refused to overturn a deportation order under former 8 U.S.C. § 1251(a)(4) where the defendant was under eighteen years old at the time of conviction, but was treated as an adult offender by the state court.[125]  The Oregon Court could have treated him as a juvenile offender, but decided not to do so. The Ninth Circuit simply concluded that, “we are [not] required to impart separate juvenile proceedings which were not used by the Oregon Court.”[126]

                The Ninth Circuit more recently in Mendez-Alcaraz v. Gonzales[127] did not directly address this issue, but denied a motion to reconsider an order of deportation for a conviction involving sexual contact between a 16-year-old defendant and an 11-year-old, first degree sexual abuse,[128] for lack of timeliness. Although petitioner was subject to adult criminal proceedings with no hearing under Oregon’s Measure 11 Law[129] for an offense committed when he was still a juvenile, the Court did not discuss whether the conviction should nonetheless be equivalent to a juvenile conviction under the immigration laws in order to equitably toll the motion’s deadline.  The dissent disagreed with the decision arguing that the order should be reversed since deportation violated his rights under the Fourteenth Amendment.  In other words, petitioner was entitled to a hearing to determine whether he should have been tried as an adult in the first place. 

 

The argument outlined here, however, should be pursued before the BIA and in other circuits.  The Board of Immigration Appeals has been attempting to enact uniform national definitions of terms in immigration statutes, so the outcome of a removal case does not depend on the many variations in criminal laws among the 50 states.  The Ninth Circuit, as well, has recognized it violates Equal Protection to make such important consequences depend on which side of a state boundary a case arises.[130]  Therefore, if the following argument prevails in the BIA, it will protect juveniles everywhere but in the First Circuit, and if it prevails in other circuits, the circuit conflict may enable the United States Supreme Court to resolve the conflict.  In addition, it is not clear from the First Circuit opinion that all of the arguments in favor of this position were in fact raised in that case, and so it may be possible to obtain a reversal of the First Circuit position by raising additional arguments effectively, since a case cannot be read as rejecting an argument that was not made in that case.[131]

[122] Id. at 1366.

[123] Matter of Ramirez-Rivero, 18 I. & N. Dec. 135 (BIA 1981) (since the juvenile’s foreign crime could not be transferred to adult court under the FJDA, it will not be considered a conviction for immigration purposes regardless of how the foreign country treated it); Matter of De La Nues, 18 I. & N. Dec. 140 (BIA 1981) (foreign offense which might or might not be transferred to adult court under FJDA must be treated as adult conviction by foreign jurisdiction in order to be held a conviction for immigration purposes).

[124] Vieira-Garcia v. INS, 239 F.3d 409 (1st Cir. 2001).

[125] Morasch v. INS, 363 F.2d 30 (9th Cir. 1966).

[126] Id. at 31.

[127] Mendez-Alcaraz v. Gonzales, 464 F.3d 842 (9th Cir. 2006).

[128] Or. Rev. Stat. § 163.427.

[129] Under  Oregon’s Measure 11, Or. Rev. Stat. §   137.707(1)(a), juveniles over the age of 14 charged with enumerated offenses are required to be prosecuted as adults.

[130] Lujan-Armendarez v. INS, 222 F.3d 728 (9th Cir. 2000); Garberding v. INS, 30 F.3d 1187 (9th Cir. 1994).

[131] RAV v. City of St. Paul, 112 S.Ct. 2538, 2545 (1992) [“It is of course contrary to all traditions of our jurisprudence to consider the law on [a] point conclusively resolved by broad language in cases where the issue was not presented or even envisioned”]; United States v. Vroman, 975 F.2d 669, 672 (9th Cir. 1992) (precedent not controlling on issue not presented to prior panel), cert. denied, 113 S.Ct. 1611 (1993); United States v. Faulkner, 952 F.2d 1066, 1071 n.3 (9th Cir. 1991) (same); DeRobles v. INS, 58 F.3d 1355 (9th Cir. 1995).)

Ninth Circuit

CRIM DEF - JUVENILES - FJDA DOES NOT REQUIRE CHARGES ADDED AFTER TRANSFER TO ADULT COURT TO BE SUBJECT TO ADDITIONAL TRANSFER HEARING
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]).

CONVICTION - JUVENILE - STATE CONVICTION OF 16 YEAR OLD IN ADULT COURT CONSTITUTED CONVICTION FOR IMMIGRATION PURPOSES, REGARDLESS OF HOW DEFENDANT WOULD HAVE BEEN TREATED UNDER THE FEDERAL JUVENILE DELINQUENCY ACT
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.").