Safe Havens

(F)  State Adult Convictions of Offenses That Would Not Have Permitted Transfer from Juvenile to Adult Court.  The law is less clear for analogous transfers in the state system.  Nevertheless, counsel may still argue that a plea that would not have warranted a transfer in the first instance should not be considered a conviction for immigration purposes because Congress did not intend it to be a conviction in light of 18 U.S.C. § 5032.  The First Circuit has rejected this argument.[44]  The Ninth Circuit case law that requires comparable treatment for noncitizens in federal and state criminal justice systems supports this argument by analogy.[45]  Counsel in the Ninth Circuit can argue that a noncitizen defendant in state court should get the same treatment s/he could have received under the FJDA just as a noncitizen defendant under Lujan[46] now gets the benefit of the treatment s/he could receive under the FFOA.  For example, a noncitizen living in California has been transferred from juvenile court to adult court after a fitness hearing because he is facing aggravated assault charges.  He pleads guilty to disorderly conduct in adult court, a minor misdemeanor.  There is no provision under California law allowing a defendant under 18 years of age to be treated as a juvenile if he pleads guilty in adult court to a lesser offense that would not have justified transfer to adult court in the first instance.  Counsel can argue that he is entitled to the treatment he would have received had he faced these charges in federal court, which would mean that he would have been treated as a juvenile, because the FJDA does not allow transfer from federal juvenile to adult court for the minor offense to which he ultimately pleaded guilty.[47]

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

[45] See, e.g., Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000) (a state rehabilitative disposition is not a conviction for immigration law purposes if it is a counterpart to the Federal First Offender Act (FFOA)).

[46] Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000).

[47] Thanks to Dan Kesselbrenner and the National Immigration Project of the National Lawyers Guild for this argument.