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September 15, 2011



By: Norka M. Sc...
: CONVICTION UNDER IMMIGRATION LAW By: Norka M. Schell Attorney-at-Law Was there ever a conviction? And, if so, what subsequent su...

By: Norka M. Schell

Was there ever a conviction?  And, if so, what subsequent subsequent developments might erase that conviction?

Common to several deportability grounds is a requirement that the alien have been "convicted" of a certain. Some difficult problems of great practical importance can arise in determining whether the action a court has taken amounts to "conviction" for deportation purpose.  A conviction for immigration purpose must be a final judgment of guilt.

 Under the INA section 101(a)(48)(A), the term "conviction" means, with respect to an alien, a formal judgement of guilt of the alien entered by a court, or if  adjudication of guilt has been withheld, where--

     (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or     has admitted sufficient facts to warrant a finding of guilt, and
     (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed.

A conviction does not occur at the time the court accepts the guilty plea, but rather at the "date on which judgement is entered on the docket" which under the Federal R. Crim. P. 32(d)(1) is after sentencing.

Under the Immigration and Nationality Act ("INA"), an alien will be found deportable if convicted of certain crimes, for instance: general crimes; drug offenses; crimes relating to firearms; miscellaneous crimes; and crimes of domestic violence, stalking, or violation of a protective order.

General Crimes are: crime of moral turpitude (CIMTs); multiple criminal convictions; aggravated felonies; high speed flight; and failure to register as a sex offender.

Miscellaneous Crimes are: espionage; sabotage; treason and sedition; Mmilitary selective service act; trading with the Enemy Act; Sections of the U.S. Code dealing with threats against the president and against successors to the presidency; the prohibiting expeditions against friendly nations; the section of the INA relating to importation of foreign nationals for immoral purposes; and the section of the INA relating to travel documentation requirements.

Many states now employ some method of ameliorating the consequences of a conviction. The procedures vary from state to state and include provisions for annulling or setting aside the conviction, permitting withdrawal of plea, sealing the records after completion of a sentence or probation, and deferring adjudication of guilt with dismissal of proceedings following a probationary period. Many states have more than one ameliorative provision, some apply only to youthful or first offenders, and others being available to the convicted population at large.

Outcomes that do not constitute a conviction under immigration law
Conviction vacated on the merits;
Acquittal or finding of not guilty;
Conviction that is not final;
 Conviction from which the defendant has taken an appeal of right that is still pending, or for which the time to file a notice of appeal has not expired;
Nolle Prosequi;
 Refusal to prosecute;
Certain Pre-Plea/Diversionary Program;
State counterpart of the Federal First Offender Act (FFOA);
Conviction in proceedings in the U.S. that do not require proof of guilt beyond a reasonable doubt or otherwise comport with standard criminal proceedings; withholding of adjudication where no criminal penalty or punishment is imposed; juvenile delinquency finding.

Erasing a Conviction

The validity of a criminal conviction may not be collaterally attacked in removal proceedings. However, there are various post-conviction remedies that can be pursued in the court that entered the conviction.

If you would like addition information on conviction under immigration law, please contact my office at   (212) 564-1589.