Crimes of Moral Turpitude

(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).