Criminal Defense of Immigrants

A crime committed by a juvenile in a foreign country is assessed according to the standards of the Federal Juvenile Delinquency Act in order to determine whether the underlying adjudication constitutes a conviction.  An immigrant does not face removal for a foreign “conviction” that would constitute only an adjudication of juvenile delinquency, rather than a criminal conviction, if it had happened in the United States.[142]  If a foreign disposition necessarily would have been treated only as a juvenile offense under the FJDA, it is not a conviction for immigration purposes.[143]

        In one case, the noncitizen had foreign convictions for larceny and possession of stolen property. To apply this test, the Board of Immigration Appeals attempted to identify a comparable federal offense.[144]  If a noncitizen charged with a United States offense comparable to the foreign offense of which s/he was convicted could not be transferred from juvenile to adult court under the federal juvenile legislation, then the foreign conviction for that offense would be considered a juvenile delinquency disposition, rather than a conviction, for immigration purposes.  On the other hand, after discovering that larceny and possession of stolen property are not federal offenses, the BIA reviewed the District of Columbia Code which imposed a maximum of ten years for the comparable larceny and possession of stolen property offenses. The Attorney General could have attempted to prosecute the noncitizen as an adult offender under the law in effect at the time because a defendant charged with a crime with a ten-year maximum sentence might have been transferred from juvenile to adult court under the Federal Juvenile Delinquency Act.  Therefore, the foreign disposition was considered to be a conviction for immigration purposes.

                The Youthful Offender Exception to inadmissibility for a conviction or admission of a crime of moral turpitude applies to juveniles who have been transferred from juvenile to adult court and there convicted, to prevent exclusion.  See § 12.33, infra.

[142] Matter of Ramirez-Rivera, 18 I. & N. Dec. 135 (BIA 1981); Matter of De La Nues, 18 I. & N. Dec. 140 (BIA 1981).

[143] Compare Matter of Ramirez-Rivera, 18 I. & N. Dec. 135 (BIA 1981) (child of 13 who was subject to mandatory treatment as a juvenile under United States law cannot be considered “convicted” of a crime for immigration purposes), with Matter of De La Nues, 18 I. & N. Dec. 140 (BIA 1981) (16-year-old held excludable for conviction of crime involving moral turpitude because he could have been treated as an adult under the FJDA where sentence for analogous crime under District of Columbia Code could have resulted in transfer to adult court had crime been committed in the United States).  These decisions are codified in the regulations at 22 C.F.R. § 40.21(a)(2).

[144] See, e.g., Giammario v. Hurney, 311 F.2d 285, 286 (3d Cir. 1962); Squires v. INS, 689 F.2d 1276 (6th Cir. 1982); Matter of Grazley, 14 I. & N. Dec. 330 (BIA 1973); Matter of Scarpulla, 15 I. & N. Dec. 139 (BIA 1974).