Sunday, November 10, 2013

Diversion Program: Conviction for Immigration Purposes?

A common question asked by defense attorneys is whether a deferred prosecution or pre-trial diversion would have any adverse immigration consequences for their non-citizen clients.  In other words, are these diversionary programs considered convictions?  The answer depends on the  type of diversionary program.  Some are considered convictions, while others are not.


For immigration purposes, a conviction is defined in INA § 101(a)(48) (A) as 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 guilt, and
(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed. 


Diversionary  programs tend to fall into one of two categories:
1) Pre-trial diversion; or
2) Deferred adjudication.

It is important to analyze the details of the program, and not just rely on the name.  Different jurisdictions use different  titles, and a "deferred prosecution" in one court may be different than a deferred prosecution in another, yet the same as a "deferred adjudication" or "pre-trial diversion" in a third jurisdiction.  


1) Admitting Facts to Warrant a Finding of Guilt:

In general, pre-trial diversion is the better program because it usually does not require the defendant to enter an admission to the elements.  For this reason, it would not be considered a conviction for immigration purposes.  Deferred prosecution agreements, on the other hand, tend to involve an admission of guilt by the defendant, with a deferral of the entry of judgment.  Such a deferred prosecution agreement would be considered a conviction because of the admission of guilt.

2) Punishment:

Regarding the required "form of punishment, penalty  or restraint on the alien's liberty", this has been interpreted quite broadly, and would include custody, home detention, or other limits on the alien's liberty.


Recently, I have been asked to analyze offers from the U.S. Attorney's Office in the Southern District of California.  From what I have seen, the offers tend to be deferred adjudication agreements, wherein the defendant would enter a guilty plea before a magistrate judge, admitting the elements of the offense. There would not be an entry of judgment.  The defendant would then be placed on probation for a specific period of time.  Upon successful completion of probation, the parties would move the court to dismiss the case.

Unfortunately, this would be considered a conviction for immigration purposes.  Why?  Because the defendant is admitting the elements in court, and the judge is imposing some restraint on the defendant's liberty through the terms of probation.  While there may be benefits to this type of deal, attorneys should be aware that it would still have potential adverse immigration consequences and advise their clients accordingly.

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Information contained in this blog should not be taken as legal advice for any specific case, and is meant as a general guide for the topic addressed.  Legal advice -- the application of law to an individual's specific circumstances-- should be obtained from an attorney who has all the relevant facts related to the specific case.

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