Safe Havens

(B)  State Adult Convictions of Juvenile Offenders.  A state conviction in adult court of a noncitizen who was a juvenile at the time of the commission of the offense does not automatically constitute a conviction for immigration purposes.  Many states allow juveniles to be transferred from juvenile court, to adult court, under certain circumstances, and an adult-court criminal conviction results.  State procedures must be evaluated by comparison to the Federal Juvenile Delinquency Act (FJDA),[25] to determine whether a state adult conviction of someone who was a juvenile at the time the crime was committed could have been transferred from federal juvenile court to federal adult court under federal law and therefore constitutes a conviction for immigration purposes.[26]  The basic principle is that a juvenile who is transferred to adult court and suffers an adult conviction will be held to have suffered a “conviction” for immigration purposes only if s/he could have been transferred to adult court under the FJDA.[27]  Therefore, even if a juvenile is in fact transferred to an adult state criminal court, the resulting state court conviction will not be considered a “conviction” for immigration purposes unless this transfer would have been allowed under the FJDA if the proceedings had occurred in federal court. 

The First Circuit, however, has held that a state court conviction as an adult for an offense committed when petitioner was seventeen years old constituted a conviction for purposes of immigration law, and the fact that he might have been treated as a juvenile in another jurisdiction was not a violation of his right to equal protection.[28] The argument outlined here, however, should be pursued before the BIA and in other circuits. 

The BIA has been attempting to establish uniform national definitions of terms in immigration statutes, so the outcome of a removal case does not depend on the many variations in criminal laws among the 50 states.  The Ninth Circuit, as well, has recognized that making such important consequences depend on the happenstance of the state of conviction violates Equal Protection.[29]  Therefore, if the following argument prevails in the BIA, it will protect juveniles everywhere but in the First Circuit, and if it prevails in other circuits, the circuit conflict may enable the United States Supreme Court to resolve the conflict.  In addition, it is not clear from the First Circuit opinion that all of the arguments in favor of this position were in fact raised in that case, so obtaining a reversal of the First Circuit position may be possible by raising additional arguments effectively, since a case cannot be read as rejecting an argument that was not made in that case.[30]

[25] 18 U.S.C. § 5031.

[26] The statute at issue in Devison involved the New York “youthful offender” act that applied to youths who committed offenses between ages 16 and 19.  Although the statute required a conviction and then allowed it to be vacated once youthful status was established, the BIA found that the state provision “reflect[s] the core criteria for a determination of juvenile delinquency” under the FDJA and was “sufficiently analogous” to the FDJA even though the maximum age under state law was 19 instead of 18 under federal law.  Devison at pp. 7-9.

[27] Matter of Ramirez-Rivero, 18 I. & N. Dec. 135 (BIA 1981) (since the juvenile’s foreign crime could not have been transferred to adult court under the FJDA, it will not be considered a conviction for immigration purposes regardless of how the foreign country treated it); Matter of De La Nues, 18 I. & N. Dec. 140 (BIA 1981) (foreign offense which might or might not be transferred to adult court under FJDA must be treated as adult conviction by foreign jurisdiction in order to be held a conviction for immigration purposes). 

[28] Vieira-Garcia v. INS, 239 F.3d 409 (1st Cir. 2001).

[29] Lujan-Armendarez v. INS, 222 F.3d 728 (9th Cir. 2000); Garberding v. INS, 30 F.3d 1187 (9th Cir. 1994).

[30] R.A.V. v. City of St. Paul, 505 U.S. 377, 112 S.Ct. 2538, 2545 (1992) (“It is of course contrary to all traditions of our jurisprudence to consider the law on [a] point conclusively resolved by broad language in cases where the issue was not presented or even envisioned”); United States v. Vroman, 975 F.2d 669, 672 (9th Cir. 1992) (precedent not controlling on issue not presented to prior panel), cert. den., 507 U.S. 996, 113 S.Ct. 1611 (1993); United States v. Faulkner, 952 F.2d 1066, 1071 n.3 (9th Cir. 1991) (same); DeRobles v. INS, 58 F.3d 1355 (9th Cir. 1995)).