Criminal Defense of Immigrants


§ 12.19 (B)

Skip to § 12.

For more text, click "Next Page>"

(B)  State Proceedings.  For a minor noncitizen defendant in state criminal proceedings, who has been transferred to adult criminal court, counsel can attempt to obtain a disposition to an offense that would not have warranted a transfer from juvenile to adult court in the first instance.  Then, the defendant can be transferred from adult court back to juvenile court, where the disposition will not be considered a conviction for immigration purposes.  See § 12.21, supra.  Even if the defendant is not transferred back to state juvenile court, it is possible for immigration counsel to argue that the final disposition does not constitute a conviction, for immigration purposes, even though it occurred in adult court, because transfer would not have been possible under the Federal Juvenile Delinquency Act, for the offense of conviction, it would not have been considered an adult conviction.[182]  Equal protection dictates that the same type of disposition in state court should also not be a conviction for immigration purposes, since to hold otherwise would treat a noncitizen differently for deportability purposes merely because s/he was prosecuted in state court, rather than in federal court.[183]


[182]  18 U.S.C. § 5032. But see Viera-Garcia  v. INS, 239 F.3d 409 (1st Cir. 2001) (rejecting argument).

[183] See, e.g., Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000). See also Terry Coonan, Tolerating No Margin for Error: The Admissibility of Statements by Alien Minors in Deportation Proceedings, 29 Tex. Tech L. Rev. 75, n. 14; Dan Kesselbrenner, Contesting Deportability: A Strategy for Minor Respondents, 67 Interpreter Releases 1, 2 (Jan. 1, 1990); Davila-Bardales v. INS, 27 F.3d 1, 4 (1st Cir. 1994).