A major class of safe havens consists of dispositions of criminal cases that do not constitute convictions, under the immigration-law definition of “conviction.”  This class of safe havens includes the following:

 

BIA

DEFERRED ADJUDICATION - FEES ARE PUNISHMENT
Matter of Cabrera, 24 I. & N. Dec. 459 (BIA Feb. 27, 2008) (costs and surcharges imposed in Florida deferred adjudication proceeding constitute a form of "punishment" or "penalty" for purposes of establishing that a noncitizen has suffered a "conviction" within the meaning of INA 101(a)(48)(A)). Note: the court here sought to establish a national standard (rather than relying on Florida state law), and includes amounts paid in restitution as a cost equaling "punishment."

Second Circuit

CONVICTION - PLEA - NOLO CONTENDERE - NO CONTEST PLEA EQUIVALENT TO GUILTY PLEA RESULTING IN CONVICTION FOR IMMIGRATION PURPOSES
Canada v. Gonzales, ___ F.3d ___, 2006 WL 1367367 (2d Cir. May 18, 2006) (Connecticut nolo contendere plea results in conviction under INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A) for removal purposes).

Lower Courts of Fourth Circuit

CONVICTION - PRETRIAL DIVERSION NOT A CONVICTION
Iqbal v. Bryson, ___ F.Supp.2d ___ (E.D. Va., Jan. 13, 2009) ("Had Petitioner been required to plead guilty or admit to facts surrounding the charges, New York's PDA and Texas' deferred adjudication program would be identical when analyzed under the statute. Instead of utilizing New York's deferred adjudication agreement, which does require the defendant to make a plea, Petitioner was involved in New York's PDA program, which has no such requirements. In as much as the Court finds that the first element required to establish a conviction under 1101(a)(48)(A) cannot be met, the Court need not analyze the second prong of punishment.").

Sixth Circuit

CONVICTION - COLLATERAL ATTACK IN REMOVAL PROCEEDINGS NOT PERMITTED
Al-Najar v. Mukasey, __ F.3d __, 2008 WL 245632 (6th Cir. Jan. 31, 2008) (petitioner's challenge to the state court conviction in immigration court constituted an impermissible collateral attack).

AGGRAVATED FELONY - CONVICTION - YOUTHFUL TRAINEE
Uritsky v. Gonzales, __ F.3d __, 2005 WL 517526 (6th Cir. March 7, 2005) (sentence of probation and a designation of "youthful trainee" under Michigan's Holmes Youthful Trainee Act ("YTA"), Mich. Comp. Laws 762.11-16, constitutes a conviction for immigration purposes).

Seventh Circuit

CONVICTION - DEFERRED ADJUDICATION - GEORGIA FIRST OFFENDER ACT DISPOSITION CONSTITUTES CONVICTION
Ali v. U.S. Attorney General, ___ F.3d ___, 2006 WL 709870 (7th Cir. Mar. 22, 2006) (per curiam) (Georgia conviction of two counts of child molestation under Georgia First Offender Act, O.C.G.A. 42-8- 60, et seq., which allows a first-time felony offender to be placed on probation (or be sentenced to confinement) and serve out that probation or confinement without receiving an adjudication of guilt, constituted a conviction under INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A), for removal purposes).

Other

CONVICTION " NON-CONVICTION DISPOSITION " NO-PLEA DIVERSION
Practice Advisory. State no-plea diversion programs in which a defendants confession is not placed in the court file do not constitute convictions for immigration purposes under the statutory definition of conviction. INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A). The admission of facts referred to in this statute must mean an admission to the court, rather than to the prosecutor. It is possible, however, for an ICE attorney to ask the prosecutor for a copy and try to use it in removal proceedings to establish a conviction. An immigration judge could rule " wrongly " that when respondent agreed that the agreement admitting guilt could come into the court later, without objection, the noncitizen was admitting to the sufficiency of the facts in relation to a judicial proceeding sufficient to establish a conviction under the statute. In Maricopa County, Arizona, the drug diversion program does have the defendant sign a written confession, but that paper stays with TASC personnel (a private company), not the judge or the prosecutor. If the defendant completes the program, the TASC file is closed and only the certificate of completion is transmitted to the prosecutor. If the defendant fails the program, only then is the written confession transferred to the prosecutor, who then can use the written confession to re-start the prosecution. This system should be sufficient to avoid a conviction for immigration purposes. Thanks to Margarita Silva and Jonathan Moore.

CONVICTION - ADJOURNMENT IN CONTEMPLATION OF DISMISSAL - NEW YORK
The New York State Defenders Association's Immigrant Defense Project mentioned by Sophie Feal has call in hours on Tuesdays and Thursdays and will very kindly walk you through any New York crimmimm issues.  Defense lawyers and others (including immigrants themselves) seeking backup support or counseling on criminal/immigration law issues should contact the Project on Tuesdays and Thursdays from 1:30 p.m. to 4:30 p.m. at (212) 898-4132, or write to the Project at 2 Washington Street, 7 North, New York, NY 10004. As a general matter, the rules to remember for NY convictions are:     - Adjournment in Contemplation of Dismissal (ACD) - pre-plea disposition and not a conviction for immigration purposes     - Conditional Discharge (CD) - post-plea disposition and is a conviction for immigration purposes     - Youthful Offender (YO) - not a conviction for immigration purposes

IMMIGRATION CONSEQUENCES - NEW YORK DEFERRED ADJUDICATION
The New York City Bar Association issued a report calling for more pre-plea/deferred prosecution diversion programs (as opposed to deferred adjudication programs that require an upfront guilty plea and thus often leave immigrants deportable), since immigrants should have meaningful access to alternatives to incarceration that can also operate as alternatives to deportation. See http://www.nycbar.org/pdf/report/Immigration_Consequences_Report.pdf).