(A)   In General.  The age of a noncitizen at the time of the commission or conviction of a crime is irrelevant to a determination of the moral turpitude of the crime, and the mere fact that a noncitizen was a minor at the time he committed an offense has generally been held to be irrelevant to characterization of the offense as a crime involving moral turpitude.[62]

 

However, Immigration authorities also recognize that juvenile proceedings result in civil findings of delinquency which do not constitute criminal convictions.[2]  Thus, the long-standing rule is that an adjudication of juvenile delinquency does not constitute a conviction for immigration purposes.  The enactment of the new definition of “conviction” by the IIRAIRA did not alter this result.[3]  Therefore, a person in juvenile proceedings can be found guilty of theft, for example, and the DHS will not consider that to be a conviction of a crime involving moral turpitude.[4]  It simply is not considered a “conviction” for immigration purposes.[5]  A state “Youthful Offender” disposition, while not a “conviction” for immigration purposes, could be examined factually in order to determine whether a noncitizen should be granted immigration relief as a matter of discretion.[6]

 

            A child who is less than 14 years of age is presumed to be a person of Good Moral Character and is not required to submit affidavits of Good Moral Character, police clearances, criminal background checks, or other evidence of Good Moral Character.[63]  Moreover, a juvenile who admits the essential elements of a CMT is not thereby rendered inadmissible.  In Matter of MU,[64] the Board held that a respondent who as an adult admitted to having committed a “theft” as a juvenile has not admitted the essential elements of a CMT because the conduct as a matter of law could constitute only juvenile delinquency, and not a crime.  This reasoning also applies with full force to the issue of inadmissibility based on an admission of the essential elements of a controlled substance offense.  The reasoning of Matter of MU might also apply to statements that arguably create a “reason to believe” that a noncitizen is a trafficker, since immigration counsel could argue that “illicit trafficker” means that the person must be guilty of a criminal offense relating to trafficking in a controlled substance, and juvenile delinquency is not a criminal offense.[65]

            The “Youthful Offender” exception to inadmissibility applies to excuse a CMT conviction or admission where the offense was committed by a juvenile under certain circumstances.  See § 4.6, infra.

[66] Vieira-Garcia v. INS, 239 F.3d 409 (1st Cir. 2001) (conviction as an adult for an offense committed when the defendant was seventeen years old was considered a conviction for purposes of immigration law, and the fact that the defendant might have been treated as a juvenile in another jurisdiction did not violate his right to equal protection); Orlando v. Robinson, 262 F.2d 850 (7th Cir. 1959), cert. den., 359 U.S. 980, 3 L. ed.2d 929, 79 S.Ct. 898 (1950); United States ex rel. Circella v. Sahli, 216 F.2d 33 (7th Cir. 1954), cert. den., 348 U.S. 964, 99 L. ed. 752, 75 S.Ct. 525 (1955) (where defendant convicted at age 18 of “robbery” and sentenced to 1 to 14 years in an Illinois reformatory, the court rejected the argument that he should not be deported since the deportation statute was not intended to apply to minors); United States ex rel. McKenzie v. Savoretti, 200 F.2d 546 (5th Cir. 1952) (court refused to consider a contention that convictions in the West Indies were actually for juvenile delinquency, and that the defendant was tried and convicted as an adult offender only because a juvenile court had not been set up in that jurisdiction); Orabona v. Clark, 53 F.2d 101 (D.R.I. 1931), rev’d on other grounds, 59 F.2d 187 (1st Cir. 1932), cert. den., 287 U.S. 629, 77 L. ed. 546, 53 S.Ct. 82 (1932); United States ex rel. Morlacci v. Smith, 8 F.2d 663 (D.N.Y. 1925); United States ex rel. Sirtie v. Commissioner of Immigration, 6 F.2d 233 (D.N.Y. 1925).  See also Morasch v. INS, 363 F.2d 30 (9th Cir. 1966) (where a noncitizen had been convicted at age 18 of petit larceny under a statute which gave the court discretion to try offenders as juveniles, but the state court had elected to try him as an adult, the offense was held to be a crime involving moral turpitude for purposes of deportation); Khalaf v. INS, 361 F.2d 208 (7th Cir. 1966) (court affirmed the AG’s refusal to allow a noncitizen convicted in Jordan twice before his sixteenth birthday of petty theft charges to depart from the country voluntarily in lieu of deportation, without considering the minor’s age at the time of commission of the offense).  A minor convicted in adult court of a crime involving moral turpitude, however, may be inadmissible or removable if the court expressly finds the minor unfit for the existing juvenile proceedings and treats the minor as an adult offender.  See Matter of CM, 5 I. & N. Dec. 327 (BIA 1953); Morash v. INS, 363 F.2d 30 (9th Cir. 1966).

[67] Matter of Devison, 22 I. & N. Dec. 1362 (BIA 2000); Matter of De La Nues, 18 I. & N. Dec. 140 (BIA 1981); Matter of Ramirez-Rivero, 18 I. & N. Dec. 135 (BIA 1981) (Cuban conviction); Matter of F, 4 I. & N. Dec. 726 (BIA 1952); Matter of A, 3 I. & N. Dec. 368 (BIA 1948); Matter of O’N, 2 I. & N. Dec. 319 (AG 1945). The BIA’s holdings in the earlier of these cases were adopted by the State Department in 52 Fed. Reg. 17,942 (May 13, 1987) (amending [former] 22 C.F.R § § 41.91(a)(9) and (10) and 42.91(a)(9) and (10)) (new rule inapplicable to a juvenile tried as an adult for a violent crime).

[68] Matter of Devison, 22 I. & N. Dec. 1362 (BIA 2000).  Compare 18 U.S.C. § 521, defining "conviction" for purposes of controlling gangs, 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." The government might argue that this shows Congress intended certain adjudications of juvenile delinquency to constitute convictions for immigration purposes. On the other hand, since Congress knows how to define conviction to include a finding of juvenile delinquency, but did not do so in the immigration context, Congressional intent was to exclude juvenile adjudications as convictions in the immigration context.

[69] United States ex rel. Cerami v. Uhl, 78 F.2d 698 (2d Cir. 1935) (minor committed to juvenile facility, rather than prison, held not convicted of deportable offense); Tutrone v. Shaughnessy, 160 F.Supp. 433 (D.N.Y. 1958) (conviction for petty larceny in 1914, at the age of 16 or 17, for which noncitizen was committed to a juvenile house of refuge rather than to a prison, did not constitute conviction of a crime involving moral turpitude); Matter of CM, 5 I. & N. Dec. 327 (BIA 1953); Matter of Ramirez-Rivero, 18 I. & N. Dec. 135 (BIA 1981); Matter of N, 3 I. & N. Dec. 723 (BIA 1949) (juvenile delinquency not considered deportable conviction).

[70] Counsel may also try challenging a conviction on a jurisdictional basis where a noncitizen client claims he was a juvenile at the time of the conviction.  See United States v. Ceja-Prado, 333 F.3d 1046 (9th Cir. June 25, 2003) (case remanded for determination whether defendant was actually a juvenile at the time he entered his guilty plea, since federal courts have no jurisdiction over certain juvenile prosecutions).

[62] Wallace v. Gonzales, 463 F.3d 135 (2d Cir. Sept. 1, 2006) (adjudication as a “Youthful Offender” under New York State criminal law, N.Y.Crim. Proc. Law § § 720.10-720.35, may be used in determining whether noncitizen should be granted adjustment of status as a matter of discretion, even those the adjudication is not a “conviction” for removability purposes).

[63] See 8 C.F.R. § 204.2(e)(2)(v).

[64] Matter of MU, 2 I. & N. Dec. 92 (BIA 1944).

[65] But see Castano v. INS, 956 F.2d 236 (11th Cir. 1992) (factual admissions could properly be considered by immigration courts in establishing the "reason to believe" ground of inadmissibility where a noncitizen's plea did not result in a conviction under the former Federal Youth Corrections Act: "We conclude that conviction and sentencing under the FYCA ought not actually improve petitioner's immigration status by disallowing the admission of the factual basis merely because of the invocation of the FYCA. (emphasis in original)."); contra, Matter of Seda, 17 I. & N. 550 (BIA 1980) (guilty plea cannot have greater consequences than the ultimate disposition of a case), modified on other grounds Matter of Ozkok, 19 I. & N. Dec. 546 (BIA 1988).

Sixth Circuit

JUVENILES " CONVICTION " EXISTENCE OF CONVICTION
Hanna v. Holder, 740 F.3d 379 (6th Cir. Jan. 17, 2014) (adjudication under Michigan's Holmes Youthful Trainee Act (YTA), Mich. Comp. Laws 762.11"16, is a conviction under the INA, since it is more similar to a deferred adjudication for youthful offenders than a true finding of juvenile delinquency); following Uritsky v. Gonzales, 399 F.3d 728, 735 (6th Cir. 2005) (YTA adjudications are convictions under 8 U.S.C. 1101(a)(48)(A), because they are not analogous to determinations of juvenile delinquency under the Federal Juvenile Delinquency Act (FJDA), 18 U.S.C. 5031"42).

Seventh Circuit

CONVICTION"JUVENILE
Rangel-Zuazo v. Holder, 2012 WL 432283 (7th Cir. Feb. 13, 2012) (unpublished) (state decision to try a youthful offender as a juvenile or as an adult determines whether juvenile has suffered a "conviction" for purposes of removal under the INA; federal immigration law distinctions between juvenile and adult offenders, and between minors tried as juveniles and those tried as adults, are rational and do not violate the Equal Protection Clause).

Eleventh Circuit

CONVICTION - ADULT CONVICTION OF JUVENILE
Singh v. U.S. Atty. Gen., ___ F.3d ___, ___, 2009 WL 604370 (11th Cir. Mar. 10, 2009) (per curiam) (a conviction of a noncitizen in adult court constitutes a conviction for immigration purposes, under INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A), no matter how old the person was at the time of the commission of the offense); accord, Vieira Garcia v. INS, 239 F.3d 409, 413-414 (1st Cir. 2001) (petitioner who was 17 years old at the time of the offense and who was convicted as an adult in Rhode Island, had suffered a conviction for immigration purposes because the INA's definition of conviction was clear and unambiguous, the immigration authorities were bound by the state court's determination to adjudicate the petitioner as an adult: "if Congress had wanted the INS to follow the FJDA at all times, it would have so stated."); Vargas-Hernandez v. Gonzales, 497 F.3d 919, 922-23 (9th Cir. 2007) (16 year-old's state court conviction as an adult constituted a conviction under INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A)); Savchuck v. Mukasey, 518 F.3d 119, 122 (2d Cir. 2008) (definition of conviction under INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A), includes state court convictions and "does not sanction disregarding them because of the theoretical possibility that criminal conduct might be treated differently by federal authorities.").

CONVICTION - JUVENILE - ADULT COURT CONVICTION OF JUVENILE CONSTITUTES A CONVICTION FOR IMMIGRATION PURPOSES
Singh v. U.S. Att'y Gen., 553 F.3d 1369 (11th Cir. Dec. 31, 2008) (conviction rendered in adult court constitutes a conviction for immigration purposes, no matter how old the noncitizen was at the time of the offense).

Other

CONVICTION - JUVELINE DELINQUENCY NOT A "CONVICTION"
United States v. Davis, 234 F.Supp.2d 601 (E.D.Va.2002), affirmed 359 F.3d 340 (4th Cir. 2002) (adjudications of juvenile delinquency, under Virginia law, did not constitute prior "convictions" sufficient to constitute predicate conviction for federal offense of being felon in possession of firearm).