(B)  Federal Juvenile Delinquency Act.[71]  The Federal Juvenile Delinquency Act (FJDA)[2] creates a possible defense for certain noncitizens who committed an offense while under 18 years of age, who may argue that the disposition is a delinquency adjudication – and therefore not a conviction of a crime for immigration purposes – even if the defendant pleaded guilty to an offense as an adult:

           

            "Whenever a juvenile transferred to district court under this section is not convicted of the crime upon which the transfer was based or another crime which would have warranted transfer had the juvenile been initially charged with that crime, further proceedings concerning the juvenile shall be conducted pursuant to the provisions of this chapter."[72]

 

            The basic principle is that a juvenile who is transferred to adult proceedings and suffers an adult conviction will be held to have suffered a “conviction” for immigration purposes only if s/he could have been transferred to adult court under the FJDA.[4]  Criminal defense counsel assisting minor clients with pending charges in the federal criminal justice system that the Attorney General transferred from juvenile proceedings to adult court, should try to negotiate a disposition that would not have warranted a transfer in the first instance.  If they succeed, the resulting plea is a juvenile disposition under 18 U.S.C. § 5032 –rather than a conviction for immigration purposes by operation of law. 

 

            The law is less clear for analogous transfers in the state system.  Nevertheless, counsel may still argue that a plea to an offense that would not have warranted a transfer in the first instance should not be considered a conviction for immigration purposes because Congress did not intend it to be a conviction a federal case in light of 18 U.S.C. § 5032.  The First and Second Circuits have rejected this argument.[73]  The Ninth Circuit case law that requires comparable treatment for noncitizens in federal and state criminal justice systems supports this argument by analogy.[74] 

[75] Thanks to Dan Kesselbrenner, National Immigration Project of the National Lawyer’s Guild for this summary.  For further discussion, see N. Tooby & J. Rollin, Criminal Defense of Immigrants § § 12.10-12.19 (4th ed. 2007). 

[76] 18 U.S.C. § 5031.

[71] 18 U.S.C. § 5032.  See, e.g., Matter of Ramirez-Rivero, 18 I. & N. Dec. 135 (BIA 1981) (since the juvenile’s foreign crime could not have been transferred to adult court under the FJDA, it will not be considered a conviction for immigration purposes regardless of how the foreign country treated it); Matter of De La Nues, 18 I. & N. Dec. 140 (BIA 1981) (foreign offense which might or might not be transferred to adult court under FJDA must be treated as adult conviction by foreign jurisdiction in order to be held a conviction for immigration purposes).

[72] Matter of Ramirez-Rivero, 18 I. & N. Dec. 135 (BIA 1981) (since the juvenile’s foreign crime could not have been transferred to adult court under the FJDA, it will not be considered a conviction for immigration purposes regardless of how the foreign country treated it); Matter of De La Nues, 18 I. & N. Dec. 140 (BIA 1981) (foreign offense which might or might not be transferred to adult court under FJDA must be treated as adult conviction by foreign jurisdiction in order to be held a conviction for immigration purposes). 

[73] Savchuck v. Mukasey, 518 F.3d 119 (2d Cir. Mar. 4, 2008); Garcia v. INS, 239 F.3d 409 (1st Cir. 2001).

[74] See, e.g., Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000) (a state rehabilitative disposition is not a conviction for immigration law purposes if it is a counterpart to the Federal First Offender Act, 18 U.S.C. § 3607).

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).