Criminal Defense of Immigrants


§ 12.21 (B)

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(B) Exceptions.  Even though a juvenile delinquency finding does not constitute a conviction, or trigger adverse immigration consequences caused by convictions, there are two circumstances in which a juvenile court finding can trigger an adverse immigration consequence.  See § 12.8(B), (C), supra.


                An adjudication of juvenile delinquency under the federal Juvenile Justice Act[189] is not a conviction of a crime, but instead a determination of the status of the offender.  A person who is a “juvenile delinquent” under the Act has therefore not been convicted of a crime.[190]  An act of “juvenile delinquency” is a “violation of a law of the United States committed by a person prior to his [or her] eighteenth birthday which would have been a crime if committed by an adult.”[191]  An adjudication of juvenile delinquency is neither a felony nor a misdemeanor.[192]


                Congress knows how to include adjudications of juvenile delinquency as convictions when it wishes to do so, for example, with respect to certain federal enhancement statutes,[193] or new sex offender registration legislation.[194]  As another example, under federal gang legislation, Congress defined “conviction” to include “a finding, under State or Federal law, that a person has committed an act of juvenile delinquency involving a violent or controlled substances felony.”[195]  Congress, however, failed to do so in the immigration context, so adjudications of juvenile delinquency do not constitute convictions for immigration purposes.[196]

                Devison also included a useful discussion of what types of state procedures will be treated as delinquency proceedings rather than adult criminal proceedings. Devison involved the New York “youthful offender” procedure for youths who committed offenses between the ages of 16 and 19. The procedure differs from some other juvenile delinquency procedures, in that there is initially a conviction that is vacated once the youthful offender status is granted. The BIA found, however, that the state provision “reflect[s] the core criteria for a determination of juvenile delinquency” under the Federal Juvenile Delinquency Act (“FDJA”).[197]  Also, despite the fact that the FJDA defines an act of juvenile delinquency as an act committed by someone under 18 years of age, while the New York youthful offender provision covers acts committed by someone under 19 years of age, the BIA found they were “sufficiently analogous” to classify the New York adjudication as a determination of delinquency, not a conviction.[198]  In addition, the BIA reaffirmed that the subsequent resentencing of a delinquent to an adult facility following a probation violation does not convert the former non-conviction disposition into a conviction.

[189] Juvenile Justice and Delinquency Prevention Act, Pub. L. No. 93-415, § § 101-102, 88 Stat. 1109 (1974).

[190] United States v. Brian N., 900 F.2d 218 (10th Cir. 1990); United States v. Frasquillo-Zomosa, 626 F.2d 99, 101 (9th Cir. 1980); United States v. Hill, 538 F.2d 1072, 1075 (4th Cir. 1976); United States v. King, 482 F.2d 454, 456 (6th Cir. 1973); Fagerstrom v. United States, 311 F.2d 717, 720 (8th Cir. 1963). 

[191] 18 U.S.C. § 5031.

[192] United States v. Gonzalez-Cervantes, 668 F.2d 1073 (9th Cir. 1981).

[193] 18 U.S.C. § 924(e)(2)(C) (“conviction” includes a finding that a person has committed an act of juvenile delinquency involving a violent felony for purposes of enhancing sentence under 18 U.S.C. § 922(g), including ex-felon or undocumented noncitizen in possession of a firearm).

[194] The Adam Walsh Child Protection and Safety Act of 2006, H.R. 4472, Pub. L. 109-248, § 111(8) (July 27, 2006) (“The term `convicted’ or a variant thereof, used with respect to a sex offense, includes adjudicated delinquent as a juvenile for that offense, but only if the offender is 14 years of age or older at the time of the offense and the offense adjudicated was comparable to or more severe than aggravated sexual abuse (as described in section 2241 of title 18, United States Code), or was an attempt or conspiracy to commit such an offense.”).  See § 12.8(D), supra.

[195] 18 U.S.C. § 521. 

[196] Matter of Devison, 22 I. & N. Dec. 1362 (BIA 2000); see INS v. Cardoza-Fonseca, 480 U.S. 420 (1986) (finding omission of language intentional when same language appears in separate provision).

[197] See 18 U.S.C. § 5031.

[198] Devison, supra, at pp. 7–9.



Ninth Circuit

United States v. C.M., 485 F.3d 492 (9th Cir. May 8, 2007) (adjudication of delinquency of a juvenile Mexican national for transporting illegal aliens and related counts is reversed, and the juvenile information dismissed, where the juvenile was deprived of his rights under the Juvenile Delinquency Act to immediate notification and prompt arraignment, and to the advice and counsel of a responsible adult prior to interrogation; and a resulting confession was highly prejudicial and should not have been used against him to initiate his proceedings).