Immigrant Legal Resource Center, www.ilrc.org
January 2013
§ N.2 Definition of Conviction
§ N.2 Definition of Conviction;
How to Avoid A Conviction for Immigration Purposes
(For more information, see Defending Immigrants in the Ninth Circuit, Chapter 2, §§ 2.1-2.5,
www.ilrc.org/crimes)
The Big Picture: Most, although not all, immigration consequences require a
conviction. If counsel can obtain a disposition that is not a conviction, the immigration case
might be saved. This Note discusses which dispositions constitute a conviction for immigration
purposes, and how to avoid a conviction.
However, counsel also must be aware of the immigration penalties based on mere
conduct, even absent a conviction. A noncitizen might be found inadmissible or deportable if
immigration authorities have evidence that the person engaged in prostitution, made a false claim
to citizenship, used false immigration or citizenship documents, smuggled aliens, is or was a
drug addict or abuser, admits certain drug or moral turpitude offenses, and, especially, if the
government has “reason to believe” the person ever has been or helped a drug trafficker. See
relevant Notes; for a discussion of the controlled substance conduct grounds, see § N.8
Controlled Substances. Apart from that, however, a conviction is required.
Give Defendants the Relevant Legal Summary from Appendix I. If you are able to
negotiate a disposition that is not a conviction or has other immigration benefit, give the
defendant a summary of what happened and why it helps in immigration proceedings. See
Appendix I following this Note for text that you can photocopy and hand to your client.
Because the great majority of persons are unrepresented in removal proceedings, and
some immigration judges are not aware of all of these rules, this is the way to make sure
that your work actually will help the defendant.
Note: In choosing defense strategies, remember that a vague record of conviction will no
longer help an immigrant who must apply for status or relief from removal, although it will
prevent a permanent resident from becoming deportable. See Young v. Holder, 697 F.3d
976 (9th Cir. 2012) (en banc), discussed at § N.3 Record of Conviction
A. Definition of Conviction
In almost all cases, once a defendant in adult criminal court enters a plea of guilty, a
conviction has occurred for immigration purposes. This is true even if under state law there is
not a conviction for some purposes, for example under California Deferred Entry of Judgment.
That is because the immigration statute contains its own standard for when a conviction has
occurred, which it will apply to evaluate state dispositions regardless of how state law
characterizes them. The statute provides that a conviction occurs:
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§ N.2 Definition of Conviction

Where there is “a formal judgment of guilt of the alien entered by a court” or,

“if adjudication of guilt has been withheld, where … 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 … the judge has ordered some form of
punishment, penalty, or restraint on the alien’s liberty to be imposed.1
Thus a guilty plea plus imposition of probation, fee, jail or counseling requirement will
equal a conviction for immigration purposes, even if the plea is later withdrawn upon successful
completion of these requirements.2 The Board of Immigration Appeals (BIA) found that a guilty
plea plus an order to pay court costs is a conviction.3 A judgment of guilt that has been entered
by a general court-martial of the United States Armed Forces qualifies as a “conviction” for
immigration purposes.4 There is a grave risk that a not guilty by reason of insanity (NGI)
disposition constitutes a conviction, at least under California procedure, since the defendant is
required first to enter a guilty plea, and in effect be convicted, before entering a NGI plea and
receiving treatment rather than a sentence. There is one exception for a first conviction of
certain minor drug offenses for which the conviction was entered prior to July 15, 2011,
described in Part B, below.
A conviction does not include an acquittal, a dismissal under a pre-plea diversion
scheme, nor a deferred prosecution, verdict, or sentence. In addition, juvenile delinquency
dispositions, judgments vacated for cause, and arguably California infractions are not
convictions. Prior to 2011, cases on direct appeal did not constitute convictions, but now defense
counsel must assume that filing a direct appeal will not prevent immigration consequences. The
rest of this section discusses these dispositions.
B. With Two Exceptions, Conviction Exists for Immigration Purposes Even After Plea
is Withdrawn Pursuant to Deferred Entry of Judgment, Prop. 36, or P.C. §1203.4
1. In General Withdrawal of Plea Pursuant to Rehabilitative Relief Has No
Immigration Effect
If there has been a plea or finding of guilt and the court has ordered any kind of penalty
or restraint, including probation, immigration authorities will recognize the disposition as a
conviction even if the state regards the conviction as eliminated by some kind of rehabilitative
relief leading to withdrawal of judgment or charges.5 See discussion in Part A.
1
INA § 101(a)(48)(A), 8 USC § 1101(a)(48)(A).
Murillo-Espinoza v. INS, 261 F.3d 771 (9th Cir. 2001).
3
Matter of Cabrera, 24 I&N Dec. 459 (BIA 2008).
4
Matter of Rivera-Valencia, 24 I&N Dec. 484 (BIA 2008).
5
Id.
2
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§ N.2 Definition of Conviction
Example: Katrina is convicted of misdemeanor theft under P.C. § 484. She
successfully completes probation and the plea is withdrawn under P.C. § 1203.4. For
immigration purposes, the conviction still exists.
Possible exception. The Ninth Circuit held that in a DEJ disposition where the only consequence
is an unconditionally suspended fine, the disposition was not a conviction because there was no
real penalty or restraint. See Part E, infra, and Retuta v. Holder, 591 F.3d 1181 (9th Cir. 2010).
2. The Lujan-Armendariz Exception for First Conviction of Certain Minor Drug
Offenses, if Plea Was Before July 15, 2011.
The other exception to the above rule is for a first conviction of certain minor drug
offenses where the conviction occurred before July 15, 2011. In Nunez-Reyes v. Holder, the
Ninth Circuit eliminated the Lujan-Armendariz rule, but did so only prospectively.6 Convictions
entered after July 14, 2011 will remain convictions for immigration purposes, even if later
successfully expunged or withdrawn.
The Lujan-Armendariz benefit applies to a first conviction of certain offenses: simple
possession of any controlled substance; an offense less serious than simple possession that does
not have a federal analogue (possession of paraphernalia); and, arguably, giving away a small
amount of marijuana. Under the influence convictions do not qualify.
In that case “rehabilitative relief” such as withdrawal of plea under deferred entry of
judgment or Prop. 36, or expungement under PC § 1203.4, will eliminate the conviction entirely
for immigration purposes. Lujan-Armendariz v. INS, 222F.3d 728 (9th Cir. 2000). Note, because
technically a conviction exists for immigration prior to its expungement, there is some risk of
being placed in deportation proceedings between the time of the plea and the expungement.
This Lujan benefit is not available if the court found that the person violated probation,
even if he or she went on to successfully complete it.7 It is not available if the person had a prior
“pre-plea” diversion. 8 These two limits might not apply, however, to a person who committed
the offense for which probation was violated, or the prior offense subject to pre -plea diversion,
while younger than age 21.
Example: Yali pled guilty to a first drug offense, possession of cocaine, in January
2011. He completed DEJ conditions without any problem. He withdraws the plea in July
2012. He does not have a conviction for immigration purposes.
NOTE: The Lujan benefit will only be recognized in immigration proceedings held in Ninth
Circuit states. If the immigrant is arrested in California, and transported to an immigration
detention center in Texas where the proceeding will be held, that circuit’s law applies and the
disposition will be treated as a conviction.
6
Nunez-Reyes v. Holder, 646 F.3d 684, 690 (9th Cir. 2011).
Estrada v. Holder, 560 F.3d 1039 (9th Cir. 2009.
8
De Jesus Melendez v. Gonzales, 503 F.3d 1019, 1026-27 (9th Cir. 2007).
7
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§ N.2 Definition of Conviction
FOR FURTHER DISCUSSION of Lujan-Armendariz benefits see § N.8 Controlled Substance
Offenses, and Chapter 3, § 3.6, Defending Immigrants in the Ninth Circuit.
C. Not a Conviction: Pre-Plea Dispositions
If through any formal or informal procedure the defendant avoids pleading guilty or nolo
contendere before a judge, or being found guilty by a judge, there is no conviction for
immigration purposes.
A disposition under the pre-plea drug diversion under former P.C. § 1000 in effect in
California before January 1, 1997 is not a conviction. (Note that even after the law changed in
1997, for some years many criminal court judges did not actually take a guilty plea; this
disposition also is not a conviction.)
A disposition in a drug court that does not require a plea is not a conviction. Note that a
drug court disposition creates other immigration problems if the person must admit to being an
abuser, which itself is a ground of inadmissibility or deportability. If at all possible, defense
counsel should try to negotiate informal pre-plea diversion that does not carry this risk. Stress
the very harsh consequences for the immigrant. However, if necessary, admitting to abuse
generally is less dangerous than having a drug possession conviction.
D. Not a Conviction: Juvenile Delinquency Dispositions
Most criminal grounds of removal require a conviction. Adjudication in juvenile
delinquency proceedings does not constitute a conviction for almost any immigration purpose,
regardless of the nature of the offense.9 If the record of proceedings indicates that proceedings
were in juvenile court, there was no conviction.
Juvenile court proceedings still can create problems for juvenile immigrants, however.
A juvenile delinquency disposition that establishes that the youth has engaged in prostitution, is
or has been a drug addict or abuser, or has been or helped a drug trafficker, will cause
immigration problems. Undocumented juvenile defendants might be eligible to apply for lawful
immigration status.
FOR A HANDOUT ON REPRESENTING JUVENILES in delinquency or dependency
proceedings or family court proceedings, see § N.15 Juveniles, infra. See also free materials
available at www.ilrc.org (go to Remedies for Immigrant Children and Youth link) and
Defending Immigrants Partnership website at www.defendingimmigrants.org (go to Library then
consult folder on Representing Noncitizen Youth; membership is required, but is free). For an
extensive discussion of representing non-citizens in delinquency, see ILRC’s manual, Special
Immigrant Juvenile Status and Other Immigration Options for Children and Youth.
9
Matter of Devison, 22 I&N Dec. 1362 (BIA 2000); Matter of Ramirez-Rivero, 18 I&N Dec. 135 (BIA 1981). The
exceptions are that certain delinquency dispositions may form a bar to applying for Family Unity (see Defending
Immigrants in the Ninth Circuit, Chapter 11, § 11.24) or to petitioning for a relative (see Note 11, infra, or
Defending Immigrants, Chapter 6, § 6.22).
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§ N.2 Definition of Conviction
FOR FURTHER INFORMATION on the “reason to believe” drug trafficking ground and
other drug conduct grounds, see § N.8 Controlled Substances, infra, and see Defending
Immigrants in the Ninth Circuit, Chapter 3, § 3.10.
E. Not a Conviction: DEJ with Unconditionally Suspended Fine?
The Ninth Circuit held that a deferred entry of judgment was not a conviction when the
only consequence to the person was an unconditionally suspended fine. The immigration
definition of conviction requires some form of penalty or restraint to be imposed in order for this
type of disposition to be a “conviction,” and the court reasoned that no penalty or restraint had
been imposed. Retuta v. Holder, 591 F.3d 1181 (9th Cir. 2010). Some immigration advocates in
California report success in making this argument to immigration judges.
If counsel can succeed in getting an unconditionally suspended fine, this may well work
to avoid a conviction – although a plea to a non-drug offense is far more secure. Because this
disposition is not well known, be sure to give the defendant a summary of the disposition and
citation, found at Appendix 8-II following this Note.
F. Infraction as a Conviction?
While the law is not settled, there is at least a strong argument that a California infraction
is not a “conviction” for immigration purposes. For more information see Yi, “Arguing that a
California Infraction is Not a Conviction” at www.ilrc.org/crimes.
In short, the Board of Immigration Appeals has held that when minor offenses are
handled in non-conventional criminal proceedings that do not require the usual constitutional
protections of a criminal trial, and the disposition does not have effect as a prior in subsequent
prosecutions, the disposition is not a conviction for immigration purposes.10 Under the BIA’s
criteria it would appear that a plea to an infraction under California law should not constitute a
conviction. Although the prosecution must prove guilt beyond a reasonable doubt, the defendant
does not have a right to a jury trial at any stage of the proceedings, an infraction is a
“noncriminal offense” for which imprisonment may not be imposed, and a prior infraction
cannot be the basis of a sentence enhancement for a subsequent misdemeanor or felony offense.
Because there are no rulings on the issue, however, criminal defense counsel should
assume conservatively that an infraction might be held a conviction and therefore seek another
resolution if possible. If an infraction is the best that can be obtained, however, counsel should
provide the defendant with the short legal summary in Appendix I to this Note that makes the
argument that a California infraction is not a conviction for immigration purposes.
If possible, counsel should make this written material available to defendants who will
not be represented because they were only charged with an infraction.
10
Matter of Cuellar, 25 I&N Dec. 850 (BIA 2012), clarifying Matter of Eslamizar, 23 I&N Dec. 684 (BIA 2004).
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§ N.2 Definition of Conviction
G. A Conviction on Direct Appeal is a Conviction Unless and Until the Appeal is
Sustained
The Ninth Circuit has held that a conviction on direct appeal of right remains a
conviction for immigration purposes.11 Criminal defense counsel must assume that filing a
timely appeal will not prevent a conviction from having immigration effect.
It still is worthwhile to file an appeal in appropriate cases, and to provide the defendant
with the legal summary regarding appeals found in Appendix I following this Note. If the
conviction is reversed on appeal it will not longer have immigration effect.12 Also, it is possible
that at some point the Ninth Circuit rule will change.
H. Not a Conviction: Vacation of Judgment for Cause
The BIA will not question the validity of a state order vacating a conviction for cause.
When a court acting within its jurisdiction vacates a judgment of conviction, the conviction no
longer exists for immigration purposes.13
The conviction must have been vacated for cause, not merely for hardship or
rehabilitation, however. A conviction is not eliminated for immigration purposes if the court
vacated it for reasons “solely related to rehabilitation or immigration hardships, rather than on
the basis of a procedural or substantive defect in the underlying criminal proceedings.”14
However, an actual legal defect that has some relationship to immigration will be given effect,
for example ineffective assistance of counsel based on a failure to adequately advise the
defendant regarding immigration consequences. See Chapter 8, Defending Immigrants in the
Ninth Circuit for further information on appeals. See also Tooby, California Post-Conviction
Relief for Immigrants at www.nortontooby.com.
11
Planes v. Holder, 652 F.3d 991, 995-96 (9th Cir. 2011) (petition for rehearing denied). The BIA had held that a
timely filed appeal is not a conviction. See Matter of Cardenas-Abreu, 24 I&N Dec. 795 (BIA 2009) and Practice
Advisory by Manuel Vargas, “Conviction Finality Requirement: The Impact of Matter of Cardenas-Abreu” at
www.immigrantdefenseproject.org.
12
Planes at 996.
13
Matter of Marroquin, 23 I&N Dec. 705 (A.G. 2005); Matter of Rodriguez-Ruiz, Int. Dec. 3436 (BIA 2000). See
also Padilla v. Kentucky, 129 S.Ct. 1317 (2009).
14
Matter of Pickering, 23 I&N Dec. 621 (BIA 2003).
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Appendix 2-I:
LEGAL SUMMARIES TO HAND TO THE DEFENDANT
Please give a copy of the applicable paragraph/s to the Defendant, with instructions to present
it to an immigration defense attorney or the Immigration Judge. Please include a copy of any
official documents (e.g. plea form) that will support the defendant’s argument.
Please give or mail a second copy to the defendant’s friend, or relative, or mail it to the
defendant’s home address. Authorities at the immigration detention center may confiscate the
defendant’s documents. This will provide a back-up copy accessible to the defendant.
*******
This paper was given to me by my attorney and pertains to possible legal defense. I request that
you do not take this paper away from me. I do not admit alienage by submitting this paper. If I
am charged with being an alien, I submit the following statement.
Adjudication in juvenile delinquency proceedings does not constitute a conviction for
immigration purposes, regardless of the nature of the offense. See, e.g., Matter of Devison, 22
I&N Dec. 1362 (BIA 2000); Matter of Ramirez-Rivero, 18 I&N Dec. 135 (BIA 1981).
*********
This paper was given to me by my attorney and pertains to possible legal defense. I request that
you do not take this paper away from me. I do not admit alienage by submitting this paper. If I
am charged with being an alien, I submit the following statement.
There is no conviction for immigration purposes where a noncitizen pled guilty and the judge
deferred entry of judgment, imposed a fine, and suspended the fine unconditionally, under
California “DEJ” at P.C. § 1000. The Ninth Circuit held that a suspended non-incarceratory
penalty such as this does not amount to the “punishment, penalty or restraint” required to meet
the statutory definition of a conviction for immigration purposes. Retuta v. Holder, 591 F.3d
1181 (9th Cir. 2010).
*********
This paper was given to me by my attorney and pertains to possible legal defense. I request that
you do not take this paper away from me. I do not admit alienage by submitting this paper. If I
am charged with being an alien, I submit the following statement.
A California “infraction” should not be held a conviction for immigration purposes. In Matter
of Cuellar, 25 I&N Dec. 850 (BIA 2012) and Matter of Eslamizar, 23 I&N Dec. 684 (BIA 2004)
the BIA identified factors that determine when an infraction does not amount to a conviction. A
California infraction comes within these factors. The defendant does not have a right to a jury
trial at any stage of the proceedings. See Cal. P.C. §§ 19.6, 1042.5. An infraction is a
“noncriminal offense” (People v. Battle, 50 Cal.App.3d Supp. 1, 6-8 (Cal.App. 1975)) for which
no imprisonment may be imposed (Calif. P.C. §§ 19.6, 19.8). A prior infraction cannot be the
basis of a sentence enhancement for a subsequent misdemeanor or felony offense.
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