Matter of Eslamizar, 23 I. & N. Dec. 684 (BIA Oct. 19, 2004) (en banc) (court procedures under Ore. Rev. Stat. 153.076, did not constitute a conviction for immigration purposes, since the proceedings do not allow a jury trial, right to court-appointed counsel, or proof beyond a reasonable doubt), overruling Matter of CR, 8 I. & N. Dec. 59 (BIA 1958) (police court adjudication of petty theft under a municipal ordinance, on a standard of preponderance of the evidence, constituted a conviction for immigration purposes).

In Matter of Eslamizar, 23 I. & N. Dec. 684 (BIA Oct. 19, 2004) (en banc) (court procedures under Ore. Rev. Stat. 153.076, did not constitute a conviction for immigration purposes, since the proceedings do not allow a jury trial, right to court-appointed counsel, or proof beyond a reasonable doubt), overruling Matter of CR, 8 I. & N. Dec.

Convictions rendered by minor military informal procedures, such as Captain's Mast, should not be considered as criminal convictions for immigration purposes, since the most fundamental criminal procedures guaranteed under the U.S. Constitution are not respected. See Matter of Eslamizar, 23 I. & N. Dec. 684 (BIA Oct. 19, 2004)(en banc)(guilty finding of third-degree theft, in violation of Ore. Rev. Stat. 164.043, by court under procedures of Ore. Rev. Stat.

United States v. Scott, 394 F.3d 111 (2d Cir. January 11, 2005) (district court erred in denying motion to dismiss indictment on ground that underlying deportation order was invalid because defendant had been prejudiced during deportation proceeding by his counsel's ineffective assistance in failing to move for waiver of deportation under INA 212(c); entry of underlying deportation order was "fundamentally unfair" within meaning of 8 U.S.C. 1326(d)).

State v. Aquino, ___ Conn. ___, ___ n.1, 2005 Conn. App. LEXIS 226 (Conn. App. June 7, 2005) (as a likely collateral consequence of the conviction, the noncitizen's ability to petition for naturalization is gravely impaired, so the issue is not moot and subject matter jurisdiction is not a bar to the defendant's present appeal from denial of a motion to withdraw the plea).

The DHS is arguing that if the prosecution appeals a trial court order vacating the criminal judgment against the defendant, the immigration court can continue to treat the case as if the conviction is still in effect.

A theft offense is only an aggravated felony (and therefore, a disqualification for cancellation), if the sentence imposed was at least one year.  Under Texas law, where deferred adjudication is granted, no sentence is imposed.  Therefore, crimes of violence, theft offenses, and other convictions for which a sentence imposed of one year is transforms the conviction into an aggravated felony, do not become aggravated felonies if the defendant received and successfully completed deferred adjudication without a violation since no sentence of one year or more has been imposed.

Puerto Rico is considered equivalent to a state, for purposes of determining whether a noncitizen was convicted of a crime for deportation purposes, giving the same effect to its judicial decrees as if they were orders of a state court and the same effect to its legislative enactments as it would to state statutes. Herrera-Inirio v. INS, 208 F.3d 299, 304 n.1 (1st Cir. 2000) (citing 28 U.S.C. 1738 (extending full faith and credit doctrine to Puerto Rico); 48 U.S.C.

In most circuits, convictions in criminal cases are not considered sufficiently final to permit the initiation of deportation proceedings if an appeal is pending or they are still subject to appeal. Matter of Polanco, 20 I. & N. Dec. 894 (BIA 1994). This is not true in the Fifth or Seventh Circuits. See Moosa v. INS,171 F.3d 994 (5th Cir. 1999); Renteria-Gonzales v. INS, 322 F.3d 804 (5th Cir. 2002); Montenegro v. Ashcroft, 355 F.3d 1035, 1037 (7th Cir. 2004).

Donaldson v. United States, __ F.Supp.2d __, 2005 WL 1248879 (S.D. Tex. April 26, 2005) (noncitizen found guilty by jury of an aggravated felony offense [simple possession] on November 13, 1989, but sentenced [to deferred adjudication] on January 19, 1990, was found to have been "convicted" on January 19, 1990, and was therefore permanently barred from naturalization for inability to show good moral character).