Safe Havens

(B)  Diversion, Deferred Entry of Judgment or Deferred Adjudication.  Completing a pre-trial diversion program, and obtaining dismissal of the charges, does not constitute a conviction under immigration law as long as there has been no plea of guilty or no contest entered at any time.[97]  The new statutory definition of conviction requires a plea or admission of sufficient facts to constitute a conviction.  A dismissal absent these statutory requirements cannot constitute a conviction.

            If a plea of guilty or no contest has been entered, however, before a program such as diversion, deferred entry of judgment, or deferred adjudication has been granted, there is a conviction for immigration purposes under the statutory definition, regardless of whether or not a conviction exists for state criminal purposes.  See N. Tooby, Post-Conviction Relief for Immigrants, Chapter 8 (2004).

[97] Matter of Grullon, 20 I. & N. Dec. 12 (BIA 1989) (disposition under Florida’s pretrial intervention program, Fla. Stats. § 944.025, held not a conviction for immigration purposes); Matter of Ozkok, 19 I. & N. Dec. 423 (BIA 1986).  This has not changed under IIRAIRA § 322, which amends INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A) to create a statutory definition of conviction that is more encompassing than the definition set out by the BIA in Matter of Ozkok, supra.  See Matter of Punu, 22 I. & N. Dec. 224 (BIA 1998) (en banc).  But see United States v. Zamudio, 314 F.3d 517 (10th Cir. 2002) (Utah plea in abeyance is a conviction for immigration purposes, satisfying INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A), as a plea “to sufficient facts to warrant a finding of guilt.”).