(C)  Argument that Adult Conviction of Juvenile Constitutes “Conviction” for Immigration Purposes Only If Juvenile Could Have Been Transferred to Adult Court Under the Federal Juvenile Delinquency Act.  Prior to 1984, the FJDA provided that an act committed by one between the ages of 16 and 18 could warrant discretionary transfer to adult prosecution if the offense would be a felony punishable by a maximum penalty of 10 years imprisonment or more, life imprisonment, or death.[132]  This earlier version did not specify which offenses gave rise to discretionary transfer but instead focused on the maximum authorized punishment.

 

Effective October 1, 1984, however, Congress altered the statutory scheme, lowered the age to 15, and identified the specific offenses for which discretionary transfer to adult court is allowed.[133]  New legislation in 1988 added various specific narcotics and firearms offenses to the list of predicate offenses for which transfer is possible.

 

(1)  List of Offenses for Which Juvenile May Be Transferred to Adult Court Under the FJDA.  Because the FJDA requires an offense to be a felony before transfer to adult court is possible, any misdemeanor conviction of a crime of violence or any of the other listed offenses cannot trigger transfer to adult court under the FJDA, and therefore cannot be considered a “conviction” for immigration purposes.

 

Moreover, unless the offense is on the following list, a state adult conviction of a juvenile arguably cannot be considered a “conviction” for immigration purposes.  See § § 12.13(C)(2), (3), infra.

 

(2)  Offenses Committed After 15th Birthday:  Transfer of a juvenile to United States District Court for adult criminal proceedings is discretionary[134] if (1) s/he is alleged to have committed an act of juvenile delinquency “after” his or her 15th birthday, (2) the act would be a felony if committed by an adult,[135] and (3) the charge is on a list including a “crime of violence,”[136] certain enumerated controlled substance offenses, [137] and certain enumerated firearms offenses.[138]

 

(3)  Offenses Committed After Thirteenth Birthday:  Transfer of a juvenile, who committed the act “after” his or her thirteenth birthday, to United States District Court for adult criminal proceedings is discretionary if s/he committed an enumerated crime of violence,[139] or if the juvenile possessed a firearm during an enumerated offense.[140]

 

                Courts will use the same definition in interpreting “crime of violence” under the Federal Juvenile Delinquency Act as under the aggravated felony definition.  See § 19.34, infra.  A “categorical” approach focusing on the elements of the crime, rather than considering the facts of the case, is used to determine whether an offense is a crime of violence under the FJDA (requiring mandatory transfer to adult status), which employs virtually the same statutory definition as crime of violence contained in 18 U.S.C. § 16.[141]  See Chapter 16, infra.

 

[132] See Matter of De La Nues, supra.

[133] Act of October 12, 1984, § 1209(b), which appears as 18 U.S.C. § 3521 note.

[134] 18 U.S.C. § 5032 (fourth para.).

[135] Under federal statute, a felony is defined as an offense for which a sentence in excess of one year may be imposed.  18 U.S.C. § 3559(a)(5).  If the maximum is one year in custody, the offense is defined as a misdemeanor. 18 U.S.C. § 3559(a)(6).

[136] The standard for interpreting “crime of violence” is the same in this context as in other contexts. United States v. M.C.E., 232 F.3d 1252 (9th Cir. 2000); see 18 U.S.C. § 16; United States v. Baker, 10 F.3d 1374 (9th Cir. 1993) (holding conspiracy was not always a crime of violence, under a categorical analysis, and the juvenile therefore could not be transferred to adult court even though overt acts included acts of violence); see also United States v. David H., 29 F.3d 489 (9th Cir. 1994) (finding that the statutory elements of robbery under California Penal Code § 211 involved an element of “threatened use of physical force against the person of another”); but see United States v. Juvenile Male, 118 F.2d 1344 (9th Cir. 1997) (examining object of RICO conspiracy to commit Hobbs Act robberies to find a substantial risk of physical force).

[137] These are an offense “described in” 21 U.S.C. § 841 (manufacture, distribution, or possession with intent to distribute a controlled or counterfeit substance), 21 U.S.C. § 952(a) (importation of controlled substances or narcotic drugs but not others), and 21 U.S.C. § 955 (possession of certain undeclared controlled substances or narcotic drugs on vessels or aircraft arriving in United States), 21 U.S.C. § 959 (manufacture or distribution of certain chemicals with knowledge or intent that they be illegally imported into the United States).

[138] These are 18 U.S.C. § 922(x) (sale or transfer of handgun or handgun ammunition to juvenile; knowing possession by juvenile of handgun or handgun ammunition), 18 U.S.C. § 924(b) (transportation or receipt of firearm or ammunition in interstate or foreign commerce with intent or knowledge that it will be used to commit a felony), 18 U.S.C. § x924(g) (interstate or foreign travel to attempt to obtain a firearm with intent to commit RICO offense, crime of violence, or any state or federal controlled substance offense), and 18 U.S.C. § 924(h) (transfer of firearm with knowledge it will be used to commit a crime of violence or drug trafficking offense).

[139] Transfer is allowed if the offense is a crime of violence under 18 U.S.C. § x113(a) (presumably this refers to assault with intent to commit murder, currently under § 113(a)(1), as listed under prior statutory numbering system), § 113(b) (presumably this refers to assault with intent to commit any felony, currently under § 113(a)(2), as listed under prior statutory numbering system), § 113(c) (presumably this refers to assault with a dangerous weapon, with intent to do bodily harm, and without just cause or excuse, currently under § 113(a)(3), under prior statutory numbering system), § 1111 (first- and second-degree murder), and § 1113 (attempt to commit murder or manslaughter).

[140] These are an offense described in 18 U.S.C. § 2111 (robbery and attempted robbery), § 2113 (bank robbery and attempted robbery), § 2241(a) (aggravated sexual abuse by force or threat), or § 2241(c) (child sexual abuse).

[141] United States v. M.C.E., 232 F.3d 1252 (9th Cir. 2000). 

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.").