In 1996, for the first time, Congress enacted a statutory definition of “conviction.”[72]  This statute modified the BIA’s definition of “conviction” handed down in Matter of Ozkok.[73]  The term “conviction” has the same meaning for purposes of both inadmissibility and deportability,[74] and for all other immigration consequences as well.  It includes a formal judgment of guilt, but also exists under certain circumstances when judgment has been withheld.

 

The statute defines a conviction for immigration purposes, in a case where adjudication has been withheld, as existing when two requirements are met:

 

(1)  a judge or jury has found the noncitizen guilty, or the noncitizen has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt; and

(2)   the judge has ordered some form of punishment, penalty, or restraint on the noncitizen’s liberty to be imposed.[75]

 

A plea of guilty entered under North Carolina v. Alford,[76] without any factual admission of guilt, still satisfies the plea part of the new definition of conviction.[77]

 

The BIA has recently held that the phrase “judgment of guilt”[78] requires that the judgment be issued as part of a criminal proceeding, i.e., “a trial or other proceeding whose purpose it to determine whether the accused committed a crime and which provides the constitutional safeguards normally attendant upon a criminal adjudication.”[79]  See § 4.11, supra.

 

Some states may also have dispositions that do not meet the definition of “conviction” because the criminal court never makes a finding of guilt.  New York’s “Adjournment in Contemplation of Dismissal” (ACD), for example, is a pre-plea disposition in which the prosecution eventually dismisses the case after a specified period of time without ever taking any plea on the issue of guilt or making any determination of guilt.  The criminal case cannot be considered final during this period, and this procedure results in a dismissal once the conditions of the ACD are satisfied.  Failure to meet the conditions means only that the case proceeds to trial or plea as usual.

 

The definition of conviction applies to “convictions and sentences entered before, on, or after” September 30, 1996, the date the IIRAIRA was enacted.[80]  One court has held this definition retroactively applicable to convictions occurring before the passage of this legislation.[81]  This conclusion has been cast into some doubt by INS v. St. Cyr.[82] 

 

In the context of an illegal re-entry case, the Ninth Circuit laid the foundations for possible subsequent challenges to the retroactive application of the aggravated felony definition.[83]  Despite the finding in St. Cyr that “IIR[A]IRA’s amendment of the definition of ‘aggravated felony’. . . clearly states that it applies with respect to ‘convictions entered on, before, or after’ the statute’s enactment date,”[84] the concurring opinion in Ubaldo-Figueroa found there was still a plausible due process argument that the expressly imposed retroactivity of the aggravated felony definition is unconstitutional, since “[t]he Due Process clause of the Fifth Amendment forbids Congress from enacting legislation expressly made retroactive when the ‘retroactive application [of the statute] is so harsh and oppressive as to transgress the constitutional limitation.’”[85]

 

            The definition of a “sentence” is governed by federal law and includes all parts of a sentence of imprisonment that are ordered, even if they are not served, irrespective of the label attached to them under state law.[86]  Therefore, where the requirements of the federal statute have been met, the disposition will be considered a “conviction” for immigration purposes, even if it is not considered to be a conviction under the law of the state or jurisdiction under which the disposition occurred.

If no sentence has been imposed, the defendant does not have a final conviction for immigration purposes.[87]

 

The statute defining “sentences” provides that:

 

Any reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or in whole or in part.[88]

 

The conference report states:

 

This section deliberately broadens the scope of the definition of ‘conviction’ beyond that adopted by the Board of Immigration Appeals in Matter of Ozkok, 19 I. & N. Dec. 546 (BIA 1988).  As the Board noted in Ozkok, there exist in the various States a myriad of provisions for ameliorating the effects of a conviction.  As a result, aliens who have clearly been guilty of criminal behavior and whom Congress intended to be considered ‘convicted’ have escaped the immigration consequences normally attendant upon a conviction.  Ozkok, while making it more difficult for alien criminals to escape such consequences does not go far enough to address situations where a judgment of guilt or imposition of sentence is suspended, conditioned upon the alien’s future good behavior.  For example, the third prong of Ozkok requires that a judgment or adjudication of guilt may be entered if the alien violates a term or condition of probation, without the need for any further proceedings regarding guilt or innocence on the original charge.  In some States, adjudication may be ‘deferred’ upon a finding or confession of guilt, and a final judgment of guilt may not be imposed if the alien violates probation until there is an additional proceeding regarding the alien’s guilt or innocence.  In such cases, the third prong of the Ozkok definition prevents the original finding or confession of guilt to be considered a ‘conviction’ for deportation purposes.  This new provision, by removing the third prong of Ozkok, clarifies Congressional intent that even in cases where adjudication is ‘deferred,’ the original finding or confession of guilt is sufficient to establish a ‘conviction’ for purposes of the immigration laws.  In addition, this new definition clarifies that in cases where immigration consequences attach depending upon the length of a term of sentence, any court-ordered sentence is considered to be ‘actually imposed,’ including where the court has suspended the imposition of the sentence.  The purpose of this provision is to overturn current administrative rulings holding that a sentence is not ‘actually imposed’ in such cases.[89]

 

For a complete discussion of how the statutory definition of conviction has been interpreted, as it applies to deferred adjudications and the effectiveness of state rehabilitative relief to eliminate the conviction for immigration purposes, see N. Tooby, J. Rollin & J. Foster, Crimes of Moral Turpitude § 10.11 (2005).

[72] INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A), as enacted by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) (enacted as Division C of Omnibus Consolidated Appropriations Act, 1997, Pub. L. No. 104-208, § 322(a)(1), 110 Stat. 3009, 3009-628).

[73] Matter of Ozkok 19 I. & N. Dec. 546 (BIA 1988); see also Matter of Punu, 22 I. & N. Dec. 224 (BIA 1998) (holding that Congress deliberately changed the Ozkok test).

[74] Marino v. INS, 537 F.2d 686 (2d Cir. 1976).

[75] INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A), as enacted by IIRAIRA § 322(a)(1).

[76] North Carolina v. Alford, 91 S.Ct. 160 (1970).  Cf. Burrell v. United States, 384 F.3d 22 (2d Cir. Sept. 14, 2004) (Connecticut state conviction from Alford plea constitutes a conviction within meaning of federal firearms statute).

[77] Abimbola v. Ashcroft, 378 F.3d 173 (2d Cir. Aug. 5, 2004) (Alford plea is equivalent to a plea of guilty and constitutes a conviction under INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A)).

[78] INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A).

[79] Matter of Eslamizar, 23 I. & N. Dec. 684, 687 (BIA Oct. 19, 2004).

[80] IIRAIRA § 322(c).

[81] Madriz-Alvarado v. Ashcroft, 383 F.3d 321 (5th Cir. Aug. 27, 2004); Moosa v. INS, 171 F.3d 994, 1006-1110 (5th Cir. 1999).

[82] INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271 (2001).

[83] United States v. Ubaldo-Figueroa, 364 F.3d 1042 (9th Cir. Apr. 7, 2004) (concurring opinion) (NOTE: the concurring opinion was originally part of the majority decision, United States v. Ubaldo-Figueroa, 347 F.3d 718 (9th Cir. 2003); however, this argument was relegated to a concurring opinion upon denial of a request for rehearing en banc).

[84] INS v. St. Cyr, 121 S.Ct. at 2289.

[85] Ubaldo-Figueroa, 364 F.3d at 1051 (quoting United States v. Carlton, 512 U.S. 26, 30 (1994)).

[86] INA § 101(a)(48)(B), 8 U.S.C. § 1101(a)(48)(B), as enacted by IIRAIRA § 322(a)(1).  See also United States v. Ayala-Gomez, 255 F.3d 1314 (11th Cir. 2001).

[87] See Pino v. Landon, 349 U.S. 901 (1955) (stating that a criminal conviction may not be considered by the immigration authorities until it is final); see also Parr v. United States, 351 U.S. 513, 518, 76 S.Ct. 912, 916 (1956) (“Final judgment in a criminal case means sentence.”) (quoting Berman v. United States, 302 U.S. 211, 212, 58 S.Ct. 164 (1937)); United States v. Douglas, 974 F. 2d. 1046, 1048 n.2 (9th Cir. 1992), citing United States v. Gottlieb, 817 F. 2d 475, 476 (8th Cir. 1987) (orders regarding a guilty plea are not final decisions until after sentencing); Aguilera-Enriques v. INS, 516 F. 2d 565, 571 (6th Cir. 1975) (“Once a sentencing [on a guilty plea] is completed . . . the conviction is final for deportation purposes.”).

[88] INA § 101(a)(48)(B), 8 U.S.C. § 1101(a)(48)(B), as enacted by IIRAIRA § 322(a)(1).

[89] H.R. Conf. Rep. No. 104-828, at 224 (1996), quoted in part in Matter of Punu, 22 I. & N. Dec. 224 (BIA 1998).

BIA

CONVICTION " NATURE OF OFFENSE " ELEMENTS OF OFFENSE " SENTENCE ENHANCEMENT " MILITARY CONVICTION
Matter of Chavez-Alvarez, 26 I. & N. Dec. 274 (BIA Mar. 14, 2014) (an sentencing enhancement element listed in a specification in the Manual for Courts-Martial, that must be pled and proved beyond a reasonable doubt, is the functional equivalent of an element of a criminal offense for immigration purposes).

CONVICTION " MUNICIPAL ORDINANCE
Matter of Cuellar-Gomez, 25 I&N Dec. 850, 855 (BIA Jul. 18, 2012) (Kansas conviction of possession of marijuana, in violation of a Wichita municipal ordinance, constituted a conviction for immigration proceedings because the Wichita proceedings required proof beyond a reasonable doubt, even though there was no right to counsel or jury trial), distinguishing Matter of Eslamizar, 23 I. & N. Dec. 684 (BIA Oct. 19, 2004).

CONVICTION - DEFINITION - 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."

CONVICTION - OFFENSE - DEFINITION
Matter of Carachuri-Rosendo, 24 I. & N. Dec. 382, 388 (BIA Dec. 13, 2007) (en banc) ("A criminal "offense" is defined by its "elements," Schmuck v. United States, 489 U.S. 705, 716-17 (1989), with "elements" being understood as facts that must be proven to a jury beyond a reasonable doubt in order to convict. In re Winship, 397 U.S. 358, 364 (1970).").

SAFE HAVENS -- CONVICTION - CRIME - FEDERAL CITATION FOR MARIJUANA POSSESSION IN NATIONAL PARK
Since a citation for possession of marijuana in a National Park does not carry a jail sentence, it is possible it does not constitute a crime and therefore cannot trigger deportability as a conviction of a crime related to a controlled substance. See Matter of Eslamizar, 23 I. & N. Dec. 684 (BIA Oct. 19, 2004) (en banc).

SAFE HAVENS - REQUIREMENT OF CONVICTION OF A CRIME - CONVICTIONS UNDER MILITARY LAW - NON-JUDICIAL PUNISHMENT DOES NOT CONSTITUTE A CONVICTION OF A CRIME FOR PURPOSES OF A CONVICTION-BASED GROUND OF DEPORTATION
Convictions of minor offenses, or even of major offenses, which are punished in a perfunctory manner as "non-judicial punishment," do not constitute convictions of "crimes," and thus cannot trigger deportation under any of the deportation grounds requiring criminal convictions. This is true because no incarceration is possible as a result of this minor and informal procedure, and because the procedure cannot be called a criminal procedure so as to result in a criminal conviction of a crime. See Matter of Eslamizar, 23 I. & N. Dec. 684 (BIA Oct. 19, 2004) (en banc).

CONVICTION - STATUTORY DEFINITION - CONVICTION REQUIRES SENTENCE
Singh v. Holder, 568 F.3d 525 (5th Cir. May 14, 2009) (under INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A), "formal judgment of guilt" is defined by reference to Federal Rule of Criminal Procedure 32(k)(1), which provides that "[i]n the judgment of conviction, the court must set forth the plea, the jury verdict or the court's findings, the adjudication, and the sentence."); Puello v. Bureau of Citizenship and Immigration Servs., 511 F.3d 324, 329 (2d Cir. 2007); Perez v. Elwood, 294 F.3d 552, 562 (3d Cir. 2002) (same).

First Circuit

CONVICTION " DEFINITION " FORMAL JUDGMENT OF GUILT
Vivieros v. Holder, ___ F.3d ___, ___ (1st Cir. Jun. 25, 2012) (Massachusetts conviction of shoplifting, under Mass. Gen. Laws ch. 266, 30A, constituted a conviction for immigration purposes, under INA 101(a)(48)(A), 8 U.S.C. (a)(48)(A), where the defendant pleaded guilty and received a fine of $250, which was later vacated, so the ultimate disposition was a guilty finding with no fines or costs, because the statutory definition of conviction has no such requirement in (A), but Congress specifically included a punishment requirement in the alternative definition under (B): We reject out-of-hand the petitioner's suggestion that there was no formal judgment of guilt because he was never ultimately punished for his shoplifting crime.); distinguishing Griffiths v. INS, 243 F.3d 45, 51-52, 54 (1st Cir. 2001) (stating that the punishment question is irrelevant to an inquiry into whether a formal judgment has been imposed; the court in Griffiths simply filed a guilty plea without ever imposing a sentence); see Duncan v. Walker, 533 U.S. 167, 173, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) (explaining that where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion (internal quotation marks omitted)).

CONVICTION - RESTITUTION AS PUNISHMENT - AGGRAVATED FELONY - FRAUD - RESTITUTION
De Vega v. Gonzales, __ F.3d __, 2007 WL 2696489 (1st Cir. Sept. 17, 2007) (an order to pay restitution was sufficient to meet "punishment" requirement of INA 101(a)(48)(A)(ii), 8 U.S.C. 1101(a)(48)(A)(ii), and the disposition therefore constituted a "conviction" under INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A) for immigration purposes).

CONVICTION " EXISTENCE OF CONVICTION " RESTITUTION ORDER CONSTITUTED PUNISHMENT
De Vega v. Gonzales, 503 F.3d 45, 47 (1st Cir. 2007) (alien admitted to facts sufficient for a finding of guilt and court issued a continuance without a finding of guilt, contingent on payment of restitution, which constituted punishment, and the disposition therefore constituted a conviction under INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A)). NOTE: This case is very poorly reasoned. The courts discussion was as follows: Second, de Vega claims that she was not convicted of an aggravated felony, and thus the IJ erred in finding her ineligible for cancellation of removal, a form of relief available only to LPRs who have not been convicted of such a crime. See 8 U.S.C. 1229b(a)(3) (stating that the Attorney General may grant cancellation of removal only if the alien has not been convicted of any aggravated felony). She contends that there was no conviction at all, and, alternatively, that if there were a conviction, it was not for an aggravated felony. We think it clear that de Vega was convicted within the meaning of the INA. IIRIRA specifies the criteria necessary for a conviction: The term conviction means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where-(i) 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 guilty, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed. Id. 1101(a)(48)(A). There is no dispute that she admitted to facts sufficient for a finding of guilt. However, she claims that the order requiring her to pay restitution did not constitute a form of punishment, penalty, or restraint on [her] liberty. Id. Although the IJ and the BIA implicitly rejected de Vega's argument on this point, neither provided an explanation. We conclude that the particular order in this case was plainly a punishment or penalty. De Vega was required to pay a large sum of money. If she failed to make her payments, her admission could ripen into a guilty plea and she would be subject to further punishment. See Commonwealth v. Aboulmal, No. 02-P-830, 2003 WL 22309058, at *2 (Mass.App.Ct.) (An admission to sufficient facts may result ... in a continuance without a finding to a specific date, conditioned on compliance with specific terms. In the event of a violation of those terms, the admission remains and may ripen into an adjudication of guilt and imposition of sentence.). Under Massachusetts law, therefore, a continuation, based on an admission of facts sufficient for a finding of guilt and conditioned on payment of restitution, is treated as the legal equivalent of a guilty plea and probationary sentence. Id. (citing Commonwealth v. Villalobos, 437 Mass. 797, 777 N.E.2d 116, 119-20 (2002)). Based on the facts of this case and Massachusetts law, we conclude that the restitution order was punitive, and we find no error in the agency's conclusion that, under the INA definition, de Vega was convicted. (De Vega v. Gonzales, 503 F.3d 45, 48-49 (1st Cir.2007)). This reasoning suffers from at least two serious defects. First, it relies on Massachusetts state law. This is an error. It is well-established that the question of the existence of a conviction depends on federal immigration law, rather than state law. The Full Faith and Credit doctrine does not require the immigration courts to follow state definitions of what constitutes a conviction for immigration purposes. This issue is determined by reference to the statutory definition of conviction. INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A). Thus, the District Court for the Northern District of Texas rejected a claim that because Texas law did not consider a deferred adjudication to be a conviction, the Full Faith & Credit statute required the federal court to accept this state rule. Bui v. Ashcroft, 2003 WL 251929 at p. *3 (N.D. Tex. 2003) (unpublished). N. TOOBY & J. ROLLIN, AGGRAVATED FELONIES 3.31(G), p. 189 (2006). Second, it is well-established that the purpose of restitution is to make the victim whole, rather than to punish the defendant. Since the purpose of restitution is rehabilitative, rather than punitive, it should not be considered to be punishment, penalty, or restraint within the meaning of the federal immigration statutory definition of conviction.

Second Circuit

CONVICTION - DATE OF CONVICTION - SENTENCE REQUIRED TO CONSTITUTE CONVICTION
Puello v. BCIS, 511 F.3d 324 (2d Cir. Dec. 20, 2007) (under INA 101(f)(8), 8 U.S.C. 1101(f)(8), the date of conviction is the date of sentence: "In sum, we hold that, under the plain meaning of the definition of "conviction" in 8 U.S.C. 1101(a)(48)(A), the entry of a "formal judgment of guilt . . . by a court" occurs when judgment is entered on the docket, not when a defendant pleads guilty."); see Perez v. Elwood, 294 F.3d 552, 562 (3d Cir. 2002) (the date of conviction under the INA is the date of either sentencing or entry of judgment on the docket); Abimbola v. Ashcroft, 378 F.3d 173, 181 (2d Cir. 2004) (an Alford plea coupled with a sentence constitutes a conviction under the INA, and noting that "Congress focused the sanction of removal on a criminal conviction as opposed to an admission of guilt"); Mugalli v. Ashcroft, 258 F.3d 52, 62 (2d Cir. 2001) (in the deportation context, a New York state conviction mitigated by a Certificate of Relief is still a conviction under the INA because the defendant "entered a plea of guilty, and the court entered a formal judgment of guilt").

CONVICTION - STATUTORY DEFINITION - RETROACTIVITY
Puello v. BCIS, 511 F.3d 324 (2d Cir. Dec. 20, 2007) (1996 statutory definition of "conviction" under INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A), applies retroactively: "In passing the statute, Congress made clear that it intended the new definition to apply retroactively. Illegal Immigration Reform and Alien Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208, Div. C., Title III-A 322(c), 110 Stat. 3009-629 (1996) (applying the new definition to "convictions and sentences entered before, on, or after the date of enactment of this Act).").

Lower Courts of Second Circuit

CONVICTION - SENTENCE - CALIFORNIA LAW PROVIDES THAT WITHOUT A SENTENCE, THERE IS NO CONVICTION
The California courts have plainly held that there is no conviction without a sentence. "There must [. . .] exist both prohibited or commanded acts and punishment for violation thereof; without both, there is no crime." People v. Vasilyan, 174 Cal. App. 4th 443, 450 (Cal. App. 2d Dist. 2009) (citing People v. Crutcher (1968) 262 Cal.App.2d 750, 754 [68 Cal. Rptr. 904].) ("That there must be a substantive crime and a punishment for that crime in order to constitute a criminal offense has been long recognized)(citing People v. McNulty (1892) 93 Cal. 427, 437 [29 P. 61].)) (emphasis added).

CONVICTION - GUILTY PLEA - ALFORD PLEA
State v. Aquino, ___ Conn. ___, ___ n.1, 2005 Conn. App. LEXIS 226 (Conn. App. June 7, 2005) ("Under North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), a criminal defendant is not required to admit his guilt, but consents to being punished as if he were guilty to avoid the risk of proceeding to trial. . . . A guilty plea under the Alford doctrine is a judicial oxymoron in that the defendant does not admit guilt but acknowledges that the state's evidence against him is so strong that he is prepared to accept the entry of a guilty plea nevertheless." (Emphasis in original; internal quotation marks omitted.), citing State v. Faraday, 268 Conn. 174, 204-205, 842 A.2d 567 (2004).)

Third Circuit

CONVICTION " DEFINITION " ESLAMIZAR
Castillo v. Holder, 729 F.3d 296 (3d Cir. 2013) (New Jersey disorderly persons offense is not a conviction, as defined for immigration purposes in INA 101(a)(48), 8 U.S.C. 1101(a)(48); Matter of Eslamizar, 23 I. & N. Dec. 684 (BIA 2004), requires that a disposition must be considered an adjudication of guilt in a genuine criminal proceeding under the law of the convicting jurisdiction; under New Jersey law, a disorderly persons offense is not a crime).

CONVICTION - JURISDICTION - U.S. VIRGIN ISLANDS CONVICTION = STATE CONVICTION UNDER FEDERAL CAREER OFFENDER SENTENCE GUIDELINE
United States v. John, 936 F.2d 764 (3d Cir. 1991) (Virgin Islands conviction constitutes a conviction "under federal or state law" for purposes of enhancing a federal sentence).

Fourth Circuit

CONVICTION " PROBATION BEFORE JUDGMENT " MARYLAND
Yanez-Popp v. INS, 998 F.2d 231 (4th Cir.1993) (Maryland court's granting of probation without judgment, in which a plea of guilty is entered and then stricken during imposition of probation at sentence, constituted a conviction within the meaning of the immigration laws); see INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A).

Eighth Circuit

CRIMES OF MORAL TURPITUDE " INADMISSIBILITY -- CONVICTION " ADMISSION OF SUFFICIENT FACTS CONTROLLED SUBSTANCES " INADMISSIBILITY -- -- CONVICTION " ADMISSION OF SUFFICIENT FACTS
Garcia-Gonzalez v. Holder, 737 F.3d 498 (8th Cir. Dec. 9, 2013) (by agreeing in his plea agreement that the Government could have proved the factual basis for his racketeering conviction beyond a reasonable doubt, the noncitizen admitted to each of the elements of a violation of 21 U.S.C. 846, which constituted an offense related to a controlled substance; he was therefore inadmissible under INA 212(a)(2)(A)(i)(II)).

Ninth Circuit

CONVICTION " DEFINITION " ADMISSION OF FACTS
Morales v. Gonzales, 472 F.3d 689 (9th Cir. Jan. 3, 2007) (agreement to allow state appellate court to assume the truth of the States evidence for the purpose of defendants challenge to the sufficiently of the evidence on appeal is not an admission of facts sufficient to determine the nature of a conviction for immigration purposes, since [N]o factual findings are actually made, and no admissions are entered into by the defendant. Instead, for the sole purpose of determining the sufficiency of the evidence, the evidence is presumed true. . . . This is far different from relying on a charging document read in conjunction with a valid plea agreement, where a defendant admits the alleged facts in a way that is binding for the purposes of conviction and subsequent proceedings. See Lara-Chacon v. Ashcroft, 345 F.3d 1148, 1152 (9th Cir.2003).).

CONVICTION
Nunez-Reyes v. Holder, 646 F.3d 684, 694 (9th Cir. Jul. 14, 2011) (en banc) (But Congress did not intend adverse immigration consequences for those who were merely charged with a crime or suspected of a crime; Congress intended such results only for those who were duly convicted, with all the constitutional protections of our criminal justice system. Relevant here, we think it is a reasonable assumption that Congress intended adverse immigration consequences only for those who were convicted either after the exercise of their constitutional rights, such as the right to trial, or after an informed waiver of those constitutional rights.).

CONVICTION - PUNISHMENT - CRIMINAL FINE CONSTITUTES SUFFICIENT PUNISHMENT TO CREATE A CONVICTION SO LONG AS IT IS NOT STAYED
Retuta v. Holder, 591 F.3d 1181 (9th Cir. Jan. 7, 2010) (California fine imposed as part of the sentence as a result of a plea in a criminal case constituted sufficient punishment to create a conviction, within the meaning of INA 101(a)(48)(B), 8 U.S.C. 1101(a)(48)(B): "We need not decide whether we must give deference to BIA's decision in Cabrera that costs or restitution are sufficiently punitive to be a "punishment" or "penalty," as the minute order clearly states the amount involved to be a fine."), citing Matter of Cabrera, 24 I. & N. Dec. 459, 461-462 (BIA 2008) (mandatory costs imposed in a criminal sentence were sufficient to constitute a "punishment" or "penalty," within the meaning of INA 101(a)(48)(B), 8 U.S.C. 1101(a)(48)(B), creating a conviction for immigration purposes).

CONVICTION - PUNISHMENT - CRIMINAL FINE THAT HAS BEEN STAYED DOES NOT CONSTITUTE SUFFICIENT PUNISHMENT TO CREATE A CONVICTION FOR IMMIGRATION PURPOSES
Retuta v. Holder, 591 F.3d 1181 (9th Cir. Jan. 7, 2010) (the statutory definition of "conviction," INA 101(a)(48), 8 U.S.C. 1101(a)(48), does not include criminal judgments whose only consequence is a suspended non-incarceratory sanction because in the first part of its statutory definition of conviction, INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A), "Congress intentionally omitted the exemplars [listed in Matter of Ozkok], which included several minor sanctions such as "revocation or suspension of a driver's license, deprivation of nonessential activities or privileges, or community service." [Footnote omitted.] The minute order here required less from petitioner Retuta than any of the exemplars in the Ozkok opinion that Congress chose not to adopt. In fact, the minute order requires nothing of Retuta. He suffered no loss of wealth, nor loss of liberty." In addition, in INA 101(a)(43)(B), 8 U.S.C. 1101(a)(48)(B) Congress specifically allowed suspended incarceration to qualify as sufficient punishment to create a conviction, but did not do so for a suspended fine.).

CONVICTION - PUNISHMENT - CRIMINAL FINE CONSTITUTES SUFFICIENT PUNISHMENT TO CREATE A CONVICTION SO LONG AS IT IS NOT STAYED
Retuta v. Holder, 591 F.3d 1181 (9th Cir. Jan. 7, 2010) (California fine imposed as part of the sentence as a result of a plea in a criminal case constituted sufficient punishment to create a conviction, within the meaning of INA 101(a)(48)(B), 8 U.S.C. 1101(a)(48)(B): "We need not decide whether we must give deference to BIA's decision in Cabrera that costs or restitution are sufficiently punitive to be a "punishment" or "penalty," as the minute order clearly states the amount involved to be a fine."), citing Matter of Cabrera, 24 I. & N. Dec. 459, 461-462 (BIA 2008) (mandatory costs imposed in a criminal sentence were sufficient to constitute a "punishment" or "penalty," within the meaning of INA 101(a)(48)(B), 8 U.S.C. 1101(a)(48)(B), creating a conviction for immigration purposes).

CONVICTION - INDIAN TRIBAL COURT
Means v. Navajo Nation, __ F.3d __ (9th Cir. August 23, 2005) (indian tribe may exercise inherent sovereign judicial power in criminal cases against nonmember indians for crimes committed on the tribe's reservation)

CONVICTION - JURISDICTION - PUERTO RICO - PUERTO RICO CONVICTION = STATE CONVICTION UNDER FEDERAL CAREER OFFENDER SENTENCE GUIDELINE
United States v. Cirino, ___ F.3d ___ (9th Cir. Aug. 15, 2005) (Puerto Rico conviction constitutes a conviction "under federal or state law" for purposes of enhancing a sentence under the federal career offender guidelines, USSG 4B1.1(a)(2002)).

Tenth Circuit

CONVICTION " EXISTENCE OF CONVICTION " GOVERNMENT NEED NOT PROVE CONVICTION WAS CONSTITUTIONAL IN ORDER TO DEPORT
Waugh v. Holder, 642 F.3d 1279, 1283 (10th Cir. Jun. 22, 2011) (DHS does not need to establish that criminal counsel gave proper immigration advice under Padilla v. Kentucky in order to establish deportability), citing United States v. Adame-Orozco, 607 F.3d 647, 653 (10th Cir. 2010) (that while an alien may have the right to pursue appellate or collateral relief for an aggravated felony conviction under various provisions of state and federal law, the government need not wait until all these avenues are exhausted before deporting him.).

Eleventh Circuit

JUVENILES - ADULT CONVICTIONS
Singh v. US Attorney Gen., __ F.3d __ (11th Cir. Dec. 31, 2008) (Florida conviction, in adult court, of defendant who was a juvenile at the time the offense was committed is still a "conviction" for immigration purposes, even though the defendant could not have been tried as an adult under the Federal Juvenile Delinquency Act), following Vieira Garcia v. I.N.S., 239 F.3d 409 (1st Cir.2001); Vargas-Hernandez v. Gonzales, 497 F.3d 919, 922-23 (9th Cir.2007); Savchuck v. Mukasey, 518 F.3d 119, 122 (2nd Cir. 2008).

DC Circuit

CONVICTION - JURISDICTION - DISTRICT OF COLUMBIA CONVICTION = STATE CONVICTION UNDER FEDERAL CAREER OFFENDER SENTENCE GUIDELINE
United States v. Thomas, 361 F.3d 653 (D.C. Cir. 2004) (District of Columbia conviction constitutes a conviction "under federal or state law" for purposes of enhancing a federal sentence); see United States v. Torres-Rosa, 209 F.3d 4 (1st Cir. 2000); United States v. Morales-Diaz, 925 F.2d 535 (1st Cir. 1991).

Other

CONVICTION " SENTENCE " NO CONVICTION EXISTS UNLESS A SENTENCE HAS BEEN IMPOSED " ARGUMENT
The statutory definition of conviction, for immigration purposes, requires that the court must have ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed. INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A)(2010). As the Second, Third and Fifth Circuits have held, a formal judgment of guilt requires that the court must set forth the plea, the jury verdict or the court's findings, the adjudication, and the sentence. Singh v. Holder, 568 F.3d 525, 530 (5th Cir. 2009) (emphasis added), citing Federal Rule of Criminal Procedure 32(k)(1); Puello v. Bureau of Citizenship and Immigration Servs., 511 F.3d 324, 329 (2d Cir. 2007); Perez v. Elwood, 294 F.3d 552, 562 (3d Cir. 2002)). The United States Supreme Court also holds that [f]inal judgment in a criminal case ... means sentence. The sentence is the judgment. Singh, 568 F.3d at 530, citing Corey v. United States, 375 U.S. 169, 174, 84 S.Ct. 298, 11 L.Ed.2d 229 (1963), quoting Berman v. United States, 302 U.S. 211, 212, 58 S.Ct. 164, 82 L.Ed. 204 (1937). This is also the law in California. Judgment in California is synonymous with the pronouncement of a sentence. See People v. Perez 23 Cal.3d 545, 549 n.2 (1979); People v. Flores, 12 Cal.3d 85, 93 n.6 (1974). Because no new sentence has been imposed on these convictions, the respondent does not have a final conviction for immigration purposes. See Pino v. Landon, 349 U.S. 901 (1955) (stating that a criminal conviction may not be considered by the immigration authorities until it is final). Thanks to Michael Mehr and Rachael Keast.

PRACTICE ADVISORY " CONVICTION " SENTENCE " SENTENCE REQUIRED FOR CONVICTION
There is some tension between the rule that the original sentence is added to probation-violation sentences, on the one hand, and the Song/Cota BIA cases on sentence modification that state that it is the final sentence that governs for purposes of assessing the immigration consequences of a judgment. Matter of Song, 23 I. & N. Dec. 173 (BIA 2001); Matter of Cota-Vargas, 23 I. & N. Dec. 849 (BIA 2005). If state probation violation procedure provides that a defendant receives credit for time served originally against a probation violation sentence, then the original and probation violation sentences would not be added together. For example, if the defendant received a six-month sentence originally, then a nine-month sentence on a violation of probation, s/he would only have to serve three of the nine months probation violation sentence. Under those circumstances, there would be an argument under Song that the final sentence for the offense is nine months. Many, if not most states, however, do not have such a rule. For example, in New York, the probation violation sentence imposed is in addition to the original jail term. New York Penal L. 60.01(4). The same is true in California, unless the court orders otherwise. On a probation violation sentence, defense counsel can ask that the original sentence be vacated and replaced by the probation violation sentence, and the defendant can if necessary waive credit for time already served. Under these circumstances, the two sentences would not be added together, because the first sentence has been vacated, and only then is the second sentence imposed " each of which is by itself too short to trigger aggravated felony treatment for the conviction. As the Board stated: "we see nothing in the language or stated purpose of section 101(a)(48)(B) that would authorize us to equate a sentence that has been modified or vacated by a court ab initio with one that has merely been suspended." Matter of Song, 23 I&N Dec. 849, 852 (BIA 2001). Thanks to Isaac Wheeler.

CONVICTION - STATUTORY DEFINITION - DOES NOT INCLUDE CONVICTIONS THAT HAVE BEEN REVERSED ON THE MERITS FOR REASONS RELATED TO THE FACTUAL BASIS FOR, OR PROCEDURAL VALIDITY OF, THE JUDGMENT
Matter of Marroquin, 23 I. & N. Dec. 705 (AG Jan. 18, 2005) ("This definition [of conviction, under INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A)], though broad, is clearly not intended to encompass convictions that have been formally entered but subsequently reversed on appeal or in a collateral proceeding for reasons pertaining to the factual basis for, or procedural validity of, the underlying judgment. Cf. In re P-, 9 I&N Dec. 293 (A.G. 1961) (concluding that conviction set aside pursuant to writ of coram nobis for a constitutional defect could not serve as basis for order of deportation). Subsequently set-aside convictions of this type fall outside the text of the new definition because, in light of the subsequent proceedings, they cannot be considered formal adjudications of the alien's guilt.")

CONVICTION " PROBATION VIOLATION " VIOLATION DOES NOT RESULT IN A NEW CONVICTION BUT A NEW SENTENCE FOR THE ORIGINAL CONVICTION
INA 101(a)(48)(A) (statutory definition of conviction); United States v. Hidalgo-Macias, 300 F.3d 281, 285 (2d Cir. 2002) (rejecting the argument that a one-year sentence on a violation of probation was a separate conviction from the conviction for the underlying offense, and holding that the probation violation did not make the underlying offense a crime of violence aggravated felony: "the imposition of a sentence of imprisonment following revocation of probation [in NY] is a modification of the original sentence"); In re Ahmed, 2005 WL 3952705 (Aug. 22, 2005) (unpublished) ("a [New York] probation violation is not -- in the context of a probation revocation hearing -- deemed a crime from which a discrete sentence may flow."), aff'd, Ahmed v. Attorney General of U.S., 212 Fed. Appx. 133 (3rd Cir. Jan 8, 2007) (unpublished); see Darvin M. v. Jacobs, 509 N.E.2d 336, 337 (N.Y. 1987) ("A violation of probation giving rise to revocation proceedings is not a 'crime' or 'offense' which . . . must be prosecuted by a District Attorney. . . . Its purpose is to determine if defendant's subsequent acts violate the conditions of the original sentence not whether the acts constitute a crime."); NY Criminal Procedure Law 1.20(16), 1.20(18), 410.10, 410.30, 410.70 (a New York violation of probation is merely a further "criminal proceeding" pursuant to the original "criminal action" and is not a new "criminal action").