Any form of dismissal or acquittal that does not follow either a plea of guilty or no contest, or an admission of “sufficient facts to warrant a judgment of guilt,” does not constitute a conviction.[46]  This can include acquittal by jury or judge, and dismissal as a result of a pre-trial motion or for insufficient evidence or for any other reason, as long as there has been no plea of guilty or no contest or sufficient admission.  Since the requirements of the statutory definition of conviction[47] have not been met, there is no conviction for immigration purposes.

 

            On exception to this rule may be a plea of not guilty by insanity.  There is a grave risk that a not guilty by reason of insanity (NGI) disposition constitutes a conviction, at least under California procedure, since the defendant is required first to enter a guilty plea, and in effect be convicted, before entering a NGI plea, and receiving mental health treatment rather than a sentence.  It is possible to argue to the contrary, based on “basic principles” such as the “not guilty” part of the “not guilty by reason of insanity” plea.  Whether the NGI plea results in a conviction and whether the resulting incarceration constitutes a sentence are two different questions.  Pre-1996 judicial decisions are consistent with the statutory definition of conviction under the Act, except that the judicial decisions did not hold that suspended imposition of sentence constituted a sentence imposed.  The DHS cannot convincingly argue that the new definition was intended to overturn older cases that differentiated between treatment and punishment.  On the other hand, in Matter of Roldan,[48] the INS made a successful argument that the definition of conviction should be followed to the letter, as if there had been INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A), preceding judicial decisions on this question.  In that case, the current definition of sentence literally requires only a “period of . . . confinement ordered by a court of law.”[49]  The DHS might contrast that with the 180-day bar to showing Good Moral Character that requires the noncitizen to have been “confined as a result of a conviction to a penal institution.”[50]

 

[46] INA § 101(a)(48)(A)(i), 8 U.S.C. § 1101(a)(48)(A)(i).

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

[48] Matter of Roldan, supra.

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

[50] INA § 101(f)(7), 8 U.S.C. § 1101(f)(7).

CAL POST CON - DIVERSION - NO-PLEA DOMESTIC VIOLENCE DIVERSION
No "admission of guilt" was required under this domestic violence no-plea diversion statute. Penal Code 1001.6(c). It was enacted by Stats. 1979, c. 913, p. 3141, 1, last amended by Stats. 1993, c. 221, 1, and repealed in 1995, repeal effective Jan. 1, 1996.

Sixth Circuit

RELIEF " NON-LPR CANCELLATION OF REMOVAL " HARDSHIP
Montanez-Gonzales v. Holder, __ F.3d __ (6th Cir. Mar. 12, 2015) (rejecting constitutional challenges to Immigration Judges standards in determining exceptional and extremely unusual hardship for non-LPR cancellation of removal).

Other

CONVICTION - DEFINITION - KANSAS
"Diversion" under Kansas law is arguably not a conviction for immigration purposes because the process involves an agreement between the defendant and prosecutor, with no punishment or restriction imposed by a judge. Thanks to David Link