Safe Havens

Any form of acquittal does not constitute a conviction.[90]  This can include acquittal by a jury after a jury trial or by a judge after a court trial.  Since the requirements of the statutory definition of conviction[91] are not met, there is no conviction for immigration purposes.

            One exception to this rule may be a plea or verdict of not guilty by reason of insanity (NGI).  There is a grave risk that an NGI disposition constitutes a conviction, at least under California criminal procedure, since the defendant is required first to enter a guilty plea, and in effect be convicted, before entering an NGI plea, and receiving mental health treatment rather than a sentence.  It is possible to argue to the contrary, based on “basic principles” such as the “not guilty” part of the “not guilty by reason of insanity” plea.  Whether the NGI plea results in a conviction and whether the resulting incarceration constitutes a sentence are two different questions.  Pre-1996 judicial decisions are consistent with the statutory definition of conviction under the act, except that the judicial decisions did not hold that suspended imposition of sentence constituted a sentence imposed.  The INS cannot convincingly argue that the new definition was intended to overturn older cases that differentiated between treatment and punishment.  On the other hand, in Matter of Roldan,[92] the INS made a successful argument that the definition of conviction should be followed to the letter, as if there had been no preceding judicial decisions on this question.  In that case, the current definition of sentence literally requires only a “period of . . . confinement ordered by a court of law.”[93]  The INS might contrast that with the 180-day bar to showing good moral character that requires the noncitizen to have been “confined as a result of a conviction to a penal institution.”[94]

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

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

[92] Matter of Roldan, supra.

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

[94] INA § 101(f)(7), 8 U.S.C. § 1101(f)(7).