Crimes of Moral Turpitude

(B)  Sentence.  The definition of a “sentence” is governed by federal law and includes all parts of a sentence of imprisonment that are ordered, even if they are not served, irrespective of the label attached under state law.[40]  Therefore, where the requirements of the INA definition statute have been met, the disposition will be considered a “sentence” for immigration purposes, even if it is not so considered under the law of the state or jurisdiction under which the disposition occurred.

If no sentence has been imposed, the defendant does not have a final conviction for immigration purposes.[41]

The statute defining “sentences” provides that:

Any reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or in whole or in part.[42]

The conference report states:

This section deliberately broadens the scope of the definition of ‘conviction’ beyond that adopted by the Board of Immigration Appeals in Matter of Ozkok, 19 I. & N. Dec. 546 (BIA 1988).  As the Board noted in Ozkok, there exist in the various States a myriad of provisions for ameliorating the effects of a conviction.  As a result, aliens who have clearly been guilty of criminal behavior and whom Congress intended to be considered ‘convicted’ have escaped the immigration consequences normally attendant upon a conviction.  Ozkok, while making it more difficult for alien criminals to escape such consequences does not go far enough to address situations where a judgment of guilt or imposition of sentence is suspended, conditioned upon the alien’s future good behavior.  For example, the third prong of Ozkok requires that a judgment or adjudication of guilt may be entered if the alien violates a term or condition of probation, without the need for any further proceedings regarding guilt or innocence on the original charge.  In some States, adjudication may be ‘deferred’ upon a finding or confession of guilt, and a final judgment of guilt may not be imposed if the alien violates probation until there is an additional proceeding regarding the alien’s guilt or innocence.  In such cases, the third prong of the Ozkok definition prevents the original finding or confession of guilt to be considered a ‘conviction’ for deportation purposes.  This new provision, by removing the third prong of Ozkok, clarifies Congressional intent that even in cases where adjudication is ‘deferred,’ the original finding or confession of guilt is sufficient to establish a ‘conviction’ for purposes of the immigration laws.  In addition, this new definition clarifies that in cases where immigration consequences attach depending upon the length of a term of sentence, any court-ordered sentence is considered to be ‘actually imposed,’ including where the court has suspended the imposition of the sentence.  The purpose of this provision is to overturn current administrative rulings holding that a sentence is not ‘actually imposed’ in such cases.[43]

In Matter of Cabrera,[5] the BIA held that a Florida deferred adjudication was a “conviction” for immigration purposes, even though a finding of guilt was withheld, because the court had still required the defendant to pay the standard costs, surcharges, restitution and fines required in a criminal court setting, finding that payment of these costs and fines was a form of “punishment” under the INA definition of “sentence,” as a matter of Federal law.[6]  Federal courts, however, may disagree since the purpose of imposition of these costs is not punitive.

            For a discussion of how the statutory definition of conviction has been interpreted, as it applies to deferred adjudications and the effectiveness of state rehabilitative relief to eliminate the conviction for immigration purposes, see § 10.11, infra.

[44] INA § 101(a)(48)(B), 8 U.S.C. § 1101(a)(48)(B), as enacted by IIRAIRA § 322(a)(1).  See also United States v. Ayala-Gomez, 255 F.3d 1314 (11th Cir. 2001).

[45] See Pino v. Landon, 349 U.S. 901 (1955) (stating that a criminal conviction may not be considered by the immigration authorities until it is final); see also Parr v. United States, 351 U.S. 513, 518, 76 S.Ct. 912, 916, 100 L. ed. 1377 (1956) (“Final judgment in a criminal case means sentence.”) (quoting Berman v. United States, 302 U.S. 211, 212, 58 S.Ct. 164, 166, 82 L. ed. 204 (1937)); United States v. Douglas, 974 F. 2d. 1046, 1048 n.2 (9th Cir. 1992), citing United States v. Gottlieb, 817 F. 2d 475, 476 (8th Cir. 1987) (orders regarding a guilty plea are not final decisions until after sentencing); Aguilera-Enriques v. INS, 516 F. 2d 565, 571 (6th Cir. 1975) (“Once a sentencing [on a guilty plea] is completed . . . the conviction is final for deportation purposes.”).

[40] INA § 101(a)(48)(B), 8 U.S.C. § 1101(a)(48)(B), as enacted by IIRAIRA § 322(a)(1).

[41] H.R. Conf. Rep. No. 104-828, at 224 (1996), quoted in part in Matter of Punu, 22 I. & N. Dec. 224 (BIA 1998).

[42] Matter of Cabrera, 24 I. & N. Dec. 459 (BIA Feb. 27, 2008).

[43] INA § 101(a)(48)(B), 8 U.S.C. § 1101(a)(48)(B).