Criminal Defense of Immigrants

Many minor immigrants may be uncertain as to their exact date of birth, or may lack proof of it, or may have incorrectly claimed to be older than they are for various purposes, resulting in giving the court system an inflated idea of their age.  In some cases, they may be presented as over the age of 18 at the time of committing the offense, when they were in fact under that age.  An adult court lacks jurisdiction over a person who was under 18 at the time of committing the offense except under certain circumstances.[145]  It may be possible to vacate an adult court conviction of a defendant who was a juvenile at the time the offense was committed, on the basis that the adult court lacked jurisdiction over the criminal case. 

The government may attempt to oppose this motion by offering evidence of bone scans or dental examinations to prove the minor was in fact over 18 at the time of committing the offense.  An article by physicians for human rights discredits the use of bone scans and dental examinations for age determination, citing medical experts on the subject.[146]  The bone scan might be able to determine that someone is six years old, as opposed to 35 years of age, but it will show no difference between two people whose age is 10 years apart.[147]

[145] United States v. Ceja-Prado, 333 F.3d 1046 (9th Cir. June 25, 2003) (where proof of defendant’s age is lacking, and s/he may have been a juvenile at the time the crime was committed, there may be no federal jurisdiction over defendant’s case pursuant to the Federal Juvenile Delinquency Act, 18 U.S.C. § 5031).

[146] From Persecution to Prison: Health Consequences of Detention for Asylum Seekers, http://www.phrusa.org/campaigns/asylum_network/detention_execSummary/dr1-toc.html.

[147] Thanks to Nancy Elkind and Emily J. Curray, Stern and Elkind, 650 S. Cherry Street, Suite 900, Denver, CO 80246; Phone: (303) 692-0111; Fax: (303) 692-0505; www.sternelkind.com.