Aggravated Felonies

If the disposition does not meet the federal definition of conviction, it cannot trigger deportation as an aggravated felony.  See § 3.32, supra.  Each of the non-conviction dispositions identified in this chapter is therefore a safe haven with respect to this ground of deportation.  It is important to be aware that obtaining a non-conviction disposition does not automatically protect the client against deportation on account of a conduct-based ground of deportation.  See N. Tooby & J. Rollin, Safe Havens: How to Identify and Construct Non-Deportable Convictions § § 2.9-2.10 (2005).  Successfully avoiding or eliminating a conviction — and thus avoiding deportation under a conviction-based ground — does not erase the underlying conduct, which can still provide the basis for a conduct-based ground of deportation.

Nonetheless, obtaining a disposition in a criminal case (a non-conviction safe haven) is a very powerful way of avoiding deportation, since it is much harder for the government to establish a conduct-based ground of deportation.

A state court has suggested that pretrial probation cannot constitute a conviction because guilt is not established prior to pretrial probation order.[256]

Dispositions that do not constitute convictions include:

            (1)  Deferred prosecution. See § 3.34, infra.

            (2)  Deferred verdict. See § 3.35, infra.

            (3)  Deferred sentence.  See § 3.36, infra.

            (4)  Certain defective convictions. See § 3.37, infra.

            (5)  Acquittals.  See § 3.38, infra.

            (6)  Dismissal without plea or admission.  See § 3.39, infra.

            (7)  Conviction by court without competent jurisdiction.  See § 3.40, infra.

            (8)  Juvenile adjudications.  See § 3.41, infra.

            (9)  Convictions in absentia.  See § 3.42, infra.

(10)  Convictions that are non-final because direct appeal is or may be pending.  See § § 3.43-3.46, infra.

(11)  Convictions or sentences vacated by effective forms of post-conviction relief.  See § 3.47; Chapter 6, infra.

[256] Commonwealth v. Rodriguez, 802 N.E.2d 1039 (Mass. Feb. 10, 2004) (Supreme Court of Massachusetts suggests in dictum that Massachusetts pretrial probation would not be a “conviction” for immigration purposes since in granting the pretrial probation, “[g]uilt was not established in any fashion in this case.”).