Safe Havens
§ 4.31 A. Convictions by Court Without Jurisdiction
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INS regulations formerly defined the term “conviction” to mean “a conviction by a court of competent jurisdiction.”[298] A convicting court’s lack of subject matter jurisdiction may therefore deprive a conviction of its validity for immigration purposes.[299] The lack of jurisdiction of the criminal court to enter the conviction may be challenged in immigration proceedings.[300]
[298] Former 8 C.F.R. § 242.2(b).
[299] See, e.g., United States v. Ceja-Prado, 333 F.3d 1046 (9th Cir. June 25, 2003) (where proof of defendant’s age is lacking, and s/he may have been a juvenile at the time the crime was committed, there may be no federal jurisdiction over defendant’s case pursuant to the Federal Juvenile Delinquency Act, 18 U.S.C. § 5031); United States v. Gutierrez-Alba, 128 F.3d 1324 (9th Cir. 1997) (assuming without deciding that adult trial court lacked jurisdiction to convict juvenile defendant, but finding sufficient admission of disqualifying conduct).
[300] See N. Tooby, J. Rollin & J. Foster, Crimes of Moral Turpitude § § 10.9, 10.19 (2d ed. 2005).
Updates
BIA
CONVICTION - BURDEN OF PROOF
In Matter of Kaneda, 16 I. & N. Dec. 677, 679-680 (BIA 1979), the BIA stated:
We have held that where a conviction is revoked and the charge dismissed by a trial judge that conviction cannot be used to sustain a finding of deportability. Matter of G, 7 I. & N. Dec. 171 (BIA 1956). We have also specifically held that when the Service claims that a trial judge lacked authority to dismiss a criminal charge after a conviction, such lack of jurisdiction must be affirmatively shown. Matter of Sirhan, 13 I. &N. Dec. 592 (BIA 1970); Matter of O'Sullivan, 10 I. &N. Dec. 320, 339 (BIA 1963). Here the Service has submitted no evidence that the trial judge lacked jurisdiction under Virginia law to rescind the respondent's conviction.
CONVICTION - VOID CONVICTION BY COURT WITHOUT JURISDICTION
Matter of O'Sullivan, 10 I. & N. Dec. 320 (BIA 1963) (BIA can look behind facially valid conviction where state court wholly lacked authority to issue order).
