Excerpt from CLINIC’s Immigration Law and Crimes Manual
Evaluating Your Client’s Criminal History
Beginning to Determine the Actual Consequences
After a determination is made as to which grounds of inadmissibility, deportability, and/or bars to
good moral character may apply, practitioners need to research which, if any, of the grounds or bars
actually do apply. Just because DHS says that a client is inadmissible, deportable, or barred from
establishing good moral character does not make it so. Similarly, just because DHS issues a notice to
appear does not mean your client is actually removable. Practitioners must thoroughly analyze
numerous aspects of each piece of an alien’s criminal history individually and cumulatively to
determine what, if any, are the actual immigration consequences of an alien’s criminal activity.
Depending on the applicable set or sets of rules, some of the relevant inquiries might be:
 Is there even a conviction for immigration purposes?
 If an admission is sufficient, has there been a valid admission for immigration purposes?
 If there was a conviction, what was the actual sentence and what was the maximum possible
sentence?
 What are the actual elements of the offense the client was convicted of? How have these
elements been interpreted by applicable state and federal case law?
 Is the offense a CMT, as that term is defined in the INA and in the relevant case law?
 Is the conviction for an aggravated felony offense, as that term is defined in the INA and in the
relevant case law?
 Is the conviction for a domestic violence offense, as that term is defined in the INA and the
relevant case law?
 Is offense related to a controlled substance as defined in the applicable statutes and under
applicable case law?
 Is there a “reason to believe” the client is a drug trafficker, as that term is defined in the INA
and the relevant case law?
 Is post-conviction relief necessary? If yes, is it a possibility?
How to approach the first four inquiries listed above will be discussed below, and the rest will be
addressed in later chapters.
Is There a Conviction or Valid Admission for Immigration Purposes?
What Is a Conviction?
Once you determine that your client has been arrested and you have obtained all relevant records,
you must determine whether the client has a conviction for immigration purposes.
“Conviction” is defined at INA §101(a)(48). A conviction is a formal judgment of guilt of the
person entered by a court, or, if adjudication of guilt has been withheld, where a judge or jury has
found the person guilty or the person has entered a plea of guilty or no contest, or has admitted
sufficient facts to warrant a finding of guilt, and the judge has ordered some form of punishment,
penalty, or restraint on the person’s liberty.1
1
To establish a conviction for immigration purposes, a court must accept a guilty plea or jury verdict, make an
adjudication, and impose a sentence. Mejia Rodriguez v. USDHS, 629 F.3d 1223 (11th Cir. 2011), citing Fed.R.Crim.P.
Forms of punishment for purposes of this definition can include, but are not limited to,
incarceration, probation, a fine or restitution, and community-based sanctions, such as a
rehabilitation program, a work release or study release program, revocation or suspension of a
driver’s license, deprivation of nonessential activities or privileges, or community service. Suspended
sentences are also punishments and count as a period of incarceration, even if no jail time actually is
served. For example, if an individual has been sentenced to a one-year suspended sentence, for
immigration purposes that person has been sentenced to one year in jail. A sentence to “time served”
has been held to b a term of imprisonment.2 The imposition of administrative court costs alone may
constitute a punishment under section INA §101(a)(48).3
What is Not a Conviction?
The following dispositions are not convictions:
 An acquittal or finding of not guilty
 A nolle prosequi, or “nol pros” by the prosecutor, which means that the person was arrested
and charged but that the prosecutor dismissed the charges before a determination
 Refusal to prosecute, sometimes called declining of charges or no information
In this situation, the person has been accused of a crime and perhaps been arrested, but either the
police do not bring charges or the prosecutor declines to prosecute those charges.
 Certain “pre-plea” or “diversionary” programs
These types of programs exist in many states and counties. The exact descriptions differ, but
generally, the accused agrees to participate in some sort of program or community service,
without any admission or determination of guilt. If the program is completed successfully, the
proceedings are dismissed. If the program is not completed successfully, the case is returned to
court for a determination of guilt. You must be careful in these cases to make sure that the client
has not pled guilty and has not admitted sufficient facts to establish guilt. If this has occurred, the
client probably has a conviction under INA §101(a)(48)(A).
 Convictions in U.S. proceedings that do not require proof of guilt “beyond a reasonable doubt”
or otherwise comport with standard criminal proceedings4
 Withholdings of adjudication if no criminal penalty or punishment is imposed5
 Certain deferred entries of judgment with minimal consequences (such as a stayed fine)6
 A juvenile delinquency finding
A determination that a child is a delinquent is not a conviction for immigration purposes.7
However, when a juvenile is tried and sentenced as an adult, this may be considered a conviction
for immigration purposes, if the juvenile could have been transferred to adult court under the
32(k)(1) and saying it agreed with its sister circuits in Singh v. Holder, 568 F.3d 525 (5th Cir. 2009); Puello v. BICE, 511
F.3d 324 (2d Cir. 2007); Perez v. Elwood, 294 F.3d 552 (3d Cir. 2002). Where the defendant pled not guilty in the
underlying criminal case, and the trial judge “found facts justifying a finding of guilt” and deferred adjudication but did
not find the defendant guilty, there was no “conviction” as defined in 101(a)(48)(A). Crespo v. Holder, 631 F.3d 130 (4th
Cir. 2011).
2
Mejia Rodriguez v. USDHS, 629 F.3d 1223 (11th Cir. 2011).
3
Matter of Cabrera, 24 I&N Dec. 459 (BIA 2008).
4
Matter of Eslamizar, 23 I&N Dec. 684 (BIA 2004).
5
See Griffiths v. INS, 243 F.3d 45 (1st Cir. 2001).
6
See Retuta v. Holder, 591 F.3d 1181 (9th Cir. 2010).
7
Matter of Devison-Charles, 22 I&N Dec. 1362 (BIA 2000).
standards set forth in the Federal Juvenile Delinquency Act (FJDA).8 The U.S. Court of Appeals
for the Sixth Circuit has held that a plea of guilty to third-degree sexual misconduct under
Michigan’s Youthful Trainee Program, for which respondent was sentenced to probation, did
constitute a conviction under INA §101(a)(48)(A).9 In reaching its decision, the Sixth Circuit
agreed with the BIA that the Michigan program was distinguishable from both the FJDA and the
New York law at issue in Matter of Devison-Charles10 and was more akin to a rehabilitative
expungement than a finding of juvenile delinquency. However, an admission made by a minor or
an adult about a CMT or controlled substances offense committed when the person was a minor
does not trigger inadmissibility, because the admission is of committing juvenile delinquency,
not a crime.11
 Convictions vacated on account of a substantive or constitutional flaw in the underlying
proceeding, instead of solely to alleviate immigration problems or other hardships 12
When is a Conviction Final?
Before IIRIRA, the rule was that a conviction from which the defendant had taken an appeal as
of right, that was still pending, or for which the time to file a notice of appeal has not expired, was
not final and should not constitute a conviction for immigration purposes. 13 After IIRIRA, many
circuit courts have held that Congress eliminated the finality requirement when it defined
“conviction” in IIRIRA.14 Therefore, in these circuits, a conviction may be “final” even though the
defendant has not exhausted or waived all appeals as of right – that is, even if the conviction is on
direct appeal.
If the conviction is under collateral attack (e.g., if a writ of coram nobis or a habeas corpus
motion has been filed in the case), the conviction is considered final until the motion is finally
decided.15 If the collateral attack is decided in the defendant’s favor, the result may cure crime-based
deportability or inadmissibility.
What Is an Admission?
As mentioned above, for aliens subject to the grounds of inadmissibility or who are required to
establish good moral character, immigration consequences also may attach if they admit to
committing certain offenses for which they were not convicted. Specifically, an applicant for
admission who:
 is convicted of;
 admits having committed; or
 admits committing acts that constitute the essential elements of
either:
8
Matter of Ramirez-Rivero, 18 I&N Dec. 135 (BIA 1981); but see Vieira Garcia v. INS, 239 F.3d 409 (1st Cir. 2001). See
also Uritsky v. Gonzales, 399 F.3d 728 (6th Cir. 2005); Vargas-Hernandez v. Gonzales, 497 F.3d 919 (9th Cir. 2007).
9
Uritsky v. Gonzales, 399 F.3d 728 (6th Cir. 2005).
10
I&N Dec. 1362 (BIA 2000).
11
Matter of MU, 2 I&N Dec. 92 (BIA 1944).
12
Matter of Pickering, 23 I&N Dec. 621 (BIA 2003). Pickering and its progeny are discussed in detail in chapter 7.
13
See Pino v. Landon, 349 U.S. 901 (1955); Matter of Thomas, 21 I&N Dec. 20 (BIA 1995).
14
See Planes v. Holder, 652 F.3d 991 (9th Cir. 2011); United States v. Saenz-Gomez, 472 F.3d 791 (10th Cir. 2007); Puello
v. BCIS, 511 F.3d 324 (2nd Cir. 2007); Abiodun v. Gonzales, 461 F.3d 1210 (10th Cir. 2006); Montenegro v. Ashcroft, 355
F. 3d 1035 (7th Cir. 2004); Moosa v. INS, 171 F.3d 994 (5th Cir. 1999). See also Griffiths v. INS, 243 F.3d 45 (1st Cir.
2001) (observing that finality is not required under the deferred-adjudication portion of §101(a)(48)(A).
15
Rohas Paredes v. AG of U.S., 528 F.3d 196 (3d Cir. 2008).
– a CMT or
– a controlled substance violation
is inadmissible.16 Similarly, an applicant for naturalization is precluded from establishing good moral
character if he or she has been convicted of or admits having committed certain crimes during the
relevant statutory period.17
Other criminal grounds of inadmissibility and deportability, including aggravated felonies and
multiple crimes, require an actual conviction before immigration consequences will attach. However,
persons whom USCIS has reason to believe are controlled substance traffickers can be found
inadmissible, even without a conviction or admission.
For an admission to be valid, the consular officer, USCIS officer, or IJ must establish all of the
following:
 The act is considered a crime under the law in force where the act was alleged to have been
committed;
 The noncitizen was advised in a clear manner of the essential elements of the alleged crime
prior to the admission;
 The noncitizen has clearly admitted conduct constituting the essential elements of the crime;
and
 The admission was made in a free and voluntary manner.18
A noncitizen’s guilty plea or plea of nolo contendere that results in a conviction constitutes an
admission that the noncitizen committed the crime. However, if no conviction has been or will be
entered pursuant to the plea, the plea cannot be considered an admission for purposes of determining
the noncitizen’s inadmissibility.19 This produces the anomalous result that, while a noncitizen who
admits committing a criminal act before a trial court but is not convicted may avoid certain
immigration consequences, a noncitizen who is never arrested, charged, indicted, or prosecuted but
who makes a competent admission may face removal.
16
INA §212(a)(2)(A)(i).
INA §101(f)((3).
18
See Matter of J, 2 I&N Dec. 285 (BIA 1945); Matter of K, 7 I&N Dec. 594 (BIA 1957). See also, Pazcoguin v.
Radcliffe, 292 F.3d 1209 (9th Cir. 2002) (as amended, 308 F.3d 934) (admission of acts constituting the essential elements
of a violation of law of a foreign country).
19
Matter of Seda, 17 I&N Dec. 550 (BIA 1980).
17