Former INS regulations defined the term “conviction” to mean “a conviction by a court of competent jurisdiction.”[55]  A convicting court’s lack of subject matter jurisdiction may therefore deprive a conviction of its validity for immigration purposes.[56]  The lack of jurisdiction of the criminal court to enter the conviction may be challenged in immigration proceedings.  See § § 10.9, 10.19, infra.

 

The immigration court may also consider whether a criminal court had jurisdiction to enter an order setting aside the original sentence.[57]  If the DHS is making such a claim, the burden of proof is on the DHS.[58] 

 

[55] Former 8 C.F.R. § 242.2(b).

[56] See, e.g., United States v. Ceja-Prado, 333 F.3d 1046 (9th Cir. June 25, 2003) (where proof of defendant’s age is lacking, and s/he may have been a juvenile at the time the crime was committed, there may be no federal jurisdiction over defendant’s case pursuant to the Federal Juvenile Delinquency Act, 18 U.S.C. § 5031); United States v. Gutierrez-Alba, 128 F.3d 1324 (9th Cir. 1997) (assuming without deciding that adult trial court lacked jurisdiction to convict juvenile defendant, but finding sufficient admission of disqualifying conduct).

[57] Matter of H, 9 I. & N. Dec. 460 (BIA 1961) (justice of peace in Michigan lacked power to alter sentence or grant new trial).  Where a state criminal statute penalizes consenting sexual conduct in private between adults, it is unconstitutional.  Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 2484 (2004).  A conviction under such an unconstitutional statute cannot trigger adverse immigration consequences, as the convicting court does not have jurisdiction to enforce unconstitutional laws.  A lack of jurisdiction is the only instance, however, where the immigration court can look behind the face of a state court order.  In all other instances, the state court order must be afforded full faith and credit, without regard to its legality.  Matter of Rodriguez-Ruiz, 22 I. & N. Dec. 1378 (BIA 2000).  See § 10.7, infra.

[58] Matter of Kaneda, 16 I. & N. Dec. 677, 679-680 (BIA 1979).

RELIEF -- CONSULAR PROCESSING " PROVISIONAL WAIVERS CRIMES OF MORAL TURPITUDE " INADMISSIBILITY
USCIS memo dated Jan. 24, 2013 instructs officers not to find a reason to believe that the applicant may be inadmissible under INA 212(a)(2)(A)(i) if the offense is not a CMT, or qualifies for the petty offense or for the youthful offender exception.

BIA

CONVICTION - VOID CONVICTION BY COURT WITHOUT JURISDICTION
Matter of O'Sullivan, 10 I. & N. Dec. 320 (BIA 1963) (BIA can look behind facially valid conviction where state court wholly lacked authority to issue order).