By Norka M. Schell, Immigration Lawyer
Law Offices of Norka M. Schell, LLC
Tel. (212)564-1589
Website: www.lawschell.com
Most crime-related grounds of deportability, as well as some crime-related grounds of inadmissibility, require a conviction in order to make the non citizen deportable or inadmissible. Even where a conviction is not required, the Department of Homeland Security (DHS) may not be able to establish criminal conduct without a conviction.
What is a conviction under immigration law? To determine what is a conviction under immigration law, one must look first to the immigration statute that defines "conviction," added by the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (IIRIRA). A conviction exists where there has been a formal judgement of guilty entered by a court or if adjudication has been withheld, where all of the following elements are present:
(1) a judge or a 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 guilty; and
(2) 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 judgment is entered on the docket" which under the Federal R. Crim. P. 32(d)(1) is after sentencing.
Before 1996, the immigration law did not include a definition of "conviction." What state dispositions constituted a conviction was a matter of case law. In a key decision in 1988, Matter of Ozkok, the Board of Immigration Appeals (BIA) ruled that a conviction exits for immigration purposes if a court entered a formal judgment of guilt or, if adjudication of guilt was withheld, where all of the following three elements were present: (1) a judge or jury found the individual guilty, or admitted sufficient facts to warrant a finding of guilty, (2) the judge ordered some form of punishment, penalty, or restraint on the person's liberty to the imposed, and (3) a judgment or adjudication of guilt may be entered if the person violates the terms of the person's probation or fails to comply with the requirements of the court's order, without availability of further proceedings on the question of guilt or innocence.
Thus, even before 1996, the BIA had defined conviction to include some dispositions that did not constitute a formal judgment of guilt, i.e., cases where there was some finding or admission of guilt by where the state deferred formal adjudication and might even eventually dismiss the criminal charges. The BIA did, however, exclude from its "conviction" determination any disposition where adjudication of guilt had been withheld based on fulfillment of certain conditions if a further hearing on guilt or innocence was required if those conditions were not fulfilled.
Under the current statutory definition of conviction, a state disposition is not a conviction under immigration law unless there has some finding, plea, or admission of guilt.
The statutory definition of a conviction under INA section 101(a)(48)(A) requires some form of penalty or punishment to be imposed. The BIA has determined that the imposition of costs and surcharges in a criminal sentence constitutes a "form of penalty or punishment" for purpose of this section.
Where a state allows for the entry of a judgment of guilt under a standard less than "beyond a reasonable doubt" and the state need not provide counsel or a jury, a "criminal conviction" is not a conviction under the INA section 101(a)(48)(A).
While the federal definition of conviction is controlling, a person will not be deemed convicted under the INA if there is a no plea entered under state law.
A conviction vacated for a legal defect (and not due to a rehabilitative statue) is not a conviction for immigration purposes.
Conviction on appeal
Before Congress codified the definition of conviction in 1996, the Supreme Court had required that a conviction be final before it could be used to support a conviction-based ground of deportability. The Board of Immigration Appeals had also found that a conviction does not count for immigration purpose s until direct appellate review has been exhausted of waived. Although some federal reviewing courts have indicated that the statutory definition of conviction added to the immigration statute in 1996 eliminated the finality requirement, other courts have indicated that the finality requirement remains in force.
Even if finality is still required before a conviction may be used to support a conviction based-ground of removability, the Board has held that New York State court's acceptance of a late-filed appeal under N.Y. Crim. Proc. Law section 460.30 does not prevent the conviction from being deemed a valid predicate for a charge of removability. However, in an unpublished decision, the Second Circuit has reversed this decision, stating the BIA misinterpreted New York law and finding that a section 460.30 late appeal is equivalent to any other direct appeal for the purposes of finality. The Second Circuit then remanded for the Board to address, in the first instance, the effect of the IIRIRA's definition of conviction on the traditional finality requirement.
