Criminal Defense of Immigrants


§ 12.16 D. Post-Conviction Relief

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Where youthful offender treatment is accorded to one who was a minor at the time of commission of the offense, that may be considered not to constitute a conviction even where the noncitizen minor was originally convicted in adult court.[148]  In other words, the minor was bound over from juvenile to adult state court, and there convicted under procedures that would constitute a conviction for immigration purposes, and thereafter proceeded against under a youthful offender procedure that is analogous to the Federal Juvenile Delinquency Act; the resulting disposition is not considered a conviction for immigration purposes, even though the initial adult court disposition did constitute a conviction for that purpose.[149] 


In the federal sentencing guidelines context, however, rehabilitative youthful offender actions by a court may not have the same effect.[150]  The Second Circuit held that because New York youthful offender treatment is not an expungement, the disposition remains a conviction in substance, for federal sentencing purposes, regardless of its characterization under New York law.[151]  The court held that United States Sentencing Guideline § 2L1.2’s failure to mandate that the sentencing court accord a conviction the status that New York law ascribes to it indicates Congress’s intent not to so limit the definition of “conviction” for purposes of that section. The court also saw no principled reason to apply a different rule to convictions that are considered for purposes of calculating a defendant’s criminal history category, than to those used to calculate the base offense level.


                In addition, Congress has the power to declare that a certain disposition does not constitute a conviction for federal criminal purposes, for federal immigration purposes, or for any purpose.  For example, it has done so in the Federal First Offender Act.[152]  The former Federal Youth Corrections Act[153] likewise declared certain federal criminal convictions were eliminated for all purposes when later expunged.  Courts have held that when a controlled substances conviction was expunged after treatment under the former Federal Youth Corrections Act, the congressional purpose to relieve the offender of further disabilities and to give him or her a second chance precluded deportation.[154]


                This principle was applied to all persons convicted of marijuana offenses who were treated as youthful offenders, and was not limited to those who were convicted of simple possession.[155]  In addition, the Second Circuit held that a state expungement effectively eliminated a marijuana conviction of a youthful offender, where a federal statute would have done so in similar circumstances.[156]  The BIA reached the same result under the federal statute.[157]  The same held true for expungements under state counterparts to the federal first offender narcotics expungement statute.[158] The legislative policy of giving youthful offenders a fresh start supported the decision that expungements under these statutes eliminated convictions for immigration purposes.[159]  The BIA then expanded this rule to cover all cases in which convictions had been deferred, even though the defendants were not young or first offenders.[160]

                The Federal Youth Corrections Act, however, did not preclude immigration authorities from using admissions made during those proceedings as a basis for excluding a juvenile under the reason to believe drug trafficking ground.[161]  See § 21.6, infra.


                In 1984, Congress repealed the Federal Youth Corrections Act, thus eliminating congressional intent to eliminate qualifying convictions for immigration purposes.[162] Although the repeal took effect October 12, 1984, the legislation included a savings clause to preserve the former statute’s benefits for offenders already sentenced or who had committed offenses before that date.  Therefore, qualifying post-conviction relief under the Federal Youth Corrections Act remains sufficient to eliminate the conviction for immigration purposes.


                Some doubt has been cast on the rule that federal expungements, and similar state expungements, effectively eliminate certain convictions for immigration purposes by recent decisions regarding the ineffectiveness of state rehabilitative relief, although the will of Congress must still be respected.[163]


                An independent BIA rule holds that when the criminal court in which a conviction was rendered later modifies the conviction in a way that is sufficient to eliminate it for immigration purposes, the immigration authorities are precluded from considering the defendant’s statement made during those proceedings to trigger more damaging immigration consequences than those triggered by the final court disposition.  See § 18.8, infra.[164]  Although Matter of Ozkok modified Seda’s holding as to what constitutes a conviction, the Seda holding regarding the significance of a plea that results in less than a conviction remains good law.

[148] Matter of Devison, 22 I. & N. Dec. 1362, 1366 (BIA 2000).

[149] Matter of Devison, 22 I. & N. Dec. 1362, 1366 (BIA 2000).

[150] See United States v. Reinoso, 350 F.3d 51 (2d Cir. Nov. 17, 2003) (conviction for second-degree armed robbery constituted a conviction for a “crime of violence” that mandated a 16-level enhancement to the base offense level, even though the conviction had later been vacated by New York youthful offender adjudication).  Reinoso, however, was decided in the context of the Sentencing Guidelines, which have somewhat different rules than immigration law.

[151] United States v. Driskell, 277 F.3d 150 (2d Cir. 2002).

[152] 18 U.S.C. §   3607.

[153] 18 U.S.C. § 5021(a) (repealed in 1984).

[154] Mestre Morera v. U.S. INS, 462 F.2d 1030 (1st Cir. 1972) (18 U.S.C. § 5021(a) (repealed in 1984)); Matter of Zingis, 14 I. & N. Dec. 621 (BIA 1974); Matter of Lima, 15 I. & N. Dec. 661 (BIA 1976) (noncitizen was treated in effect as youthful offender, although conviction expunged under different California statute than in Andrade); Matter of Andrade, 14 I. & N. Dec. 651 (BIA 1974) (conviction expunged upon completion of youth offender treatment); cf. Kolios v. INS, 532 F.2d 786 (1st Cir. 1976) (Texas conviction continued to be conviction for immigration purposes, but result might be different if a young offender’s state conviction for simple possession had been expunged); Matter of Moeller, 16 I. & N. Dec. 65 (BIA 1976); Matter of Espinoza, 15 I. & N. Dec. 328 (BIA 1975) (inapplicable to adult violator); Matter of Lindner, 15 I. & N. Dec. 170 (BIA 1975) (Connecticut defendant not treated as youth offender, so remained deportable).

[155] Matter of Berker, 15 I. & N. Dec. 725 (BIA 1976) (convicted of conspiracy to possess marijuana with intent to distribute).

[156] Rehman v. INS, 544 F.2d 71 (2d Cir. 1976) (New York certificate of relief from disabilities effective in eliminating state marijuana conviction for immigration purposes).

[157] Matter of Werk, 16 I. & N. Dec. 234 (BIA 1977) (federal conviction under 21 U.S.C. § 844(b)(1) eliminated for immigration purposes by federal expungement after satisfactory probation following single conviction). 

[158] Matter of Kaneda, 16 I. & N. Dec. 677 (BIA 1979) (Virginia expungement effective, since the federal and state statutes’ purpose ‘‘is to give such offenders another chance to lead law-abiding lives, without the stigma of a criminal conviction’’); Matter of Haddad, 16 I. & N. Dec. 253 (BIA 1977) (Michigan); Matter of Werk, 16 I. & N. Dec. 234 (BIA 1977) (Wisconsin conviction eliminated); cf. Matter of Forstner, 18 I. & N. Dec. 374 (BIA 1983) (deportability not removed by expungement of narcotics conviction under Oregon Revised Statutes § 137.225, because that statute is not a counterpart of federal first offender statute, 21 U.S.C. § 844(b)(1)).

[159] Matter of Kaneda, 16 I. & N. Dec. 677 (BIA 1979) (Virginia expungement effective, since federal and state statutes’ intent is to grant outhful offenders a second opportunity to lead law-abiding lives without the stigma of a criminal conviction); Matter of Haddad, 16 I. & N. Dec. 253 (BIA 1977) (Michigan); Matter of Werk, 16 I. & N. Dec. 234 (BIA 1977) (Wisconsin).

[160] Matter of Garcia, 19 I. & N. Dec. 270 (BIA 1985) (Texas; modifying earlier Board decisions).

[161] Castano v. INS,  956 F.2d 236 (11th Cir. 1992) (factual admissions could properly be considered by immigration courts in establishing the “reason to believe” ground of inadmissibility where a noncitizen’s plea did not result in a conviction under the former Federal Youth Corrections Act: “We conclude that conviction and sentencing under the FYCA ought not actually improve petitioner’s immigration status by disallowing the admission of the factual basis merely because of the invocation of the FYCA. (emphasis in original).”); contra, Matter of Seda, 17 I. & N. Dec. 550 (BIA 1980) (guilty plea cannot have greater consequences than the ultimate disposition of a case), modified on other grounds Matter of Ozkok, 19 I. & N. Dec. 546 (BIA 1988).

[162] Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, 98 Stat. 1837, 2032-33, repealing 18 U.S.C. § § 5005-26.

[163] See Matter of Devison, 22 I. & N. Dec. 1362, 1366 (BIA 2000) (Matter of Roldan applied to convictions under the Federal Youth Corrections Act, which are considered convictions for immigration purposes, as distinguished from proceedings under Federal Juvenile Delinquency Act, which were not considered convictions under IIRAIRA definition of conviction, INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A).)

[164] See Matter of Seda, 17 I. & N. Dec. 550 (BIA 1980) (holding that a plea that resulted in less than a conviction was not an admission for purposes of INA § 212(a)(2) inadmissibility because a plea could not have a greater effect than the ultimate disposition of the criminal case).