Written by: JMcKinney
One of the funniest parts of my job (in a sad way) is explaining to criminal defense attorneys, prosecutors, and state court judges that the INA’s definition of the word “conviction” differs from their ordinary sense of the word. In 1996, Congress changed the definition of the word “conviction” to read as follows:
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 guilt, and (ii) the judge has 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). Ignorance of the definition can result in disaster. A criminal defendant can be subjected to mandatory detention and removal, even when a prosecutor and court do not desire a defendant’s exile from the United States. North Carolina’s best example of this is its drug diversion program. N.C. Gen. Stat. § 90-96. A criminal defendant with a first-time drug possession charge is often offered this program to avoid a conviction. Entry into “90-96″ requires a guilty plea or finding of guilt and placement on probation by a state court judge. Once the conditions of probation are successfully completed, the drug possession charge is dismissed, and the criminal defendant may later become eligible to expunge the charge. Id. Even though this statute was designed and intended to promote rehabilitation and a second chance at life without carrying the “felon” label, North Carolina’s “90-96″ program seems to satisfy the INA’s definition of conviction. See Matter of Salazar, 23 I&N Dec. 223 (BIA 2002).
One would think the plain language of the statute is expansive enough, but of course some judges have stretched the boundaries of the word “conviction” further. See, e.g., Singh v. U.S. Atty. Gen., 561 F.3d 1275, 1279 (11th Cir. 2009)(a state’s conviction of a minor in adult court is considered a conviction for immigration purposes); Matter of Cabrera, 24 I&N Dec. 459 (BIA 2008)(holding that courts costs alone constitute a “penalty”).
Therefore, it was refreshing to see a panel of the 4th Circuit recently embrace a more natural reading of the word “conviction.” In Crespo v. Holder, __ F.3d ___, No. 09-2214 (4th Cir. 2011), the Court held that some criminal court adjudications conducted pursuant to Virginia’s first offender statute do not constitute convictions under the INA.
“Crespo’s 1997 adjudication was pursuant to Virginia Code § 18.2-251, which applies to a first offender who ‘pleads guilty to or enters a plea of not guilty to possession of … marijuana.’ Va.Code Ann. § 18.2-251. After such a plea, ‘if the facts found by the court would justify a finding of guilt,’ the court may, ‘without entering a judgment of guilt,’ instead ‘defer further proceedings and place’ the offender on probation. Id. In his case, Crespo pled not guilty to the offense and the judge found facts justifying a finding of guilt and deferred adjudication over the Commonwealth’s objection. Crespo was sentenced to one year of probation, which he served without incident.” Id. at 5-6 (slip opinion).
The question thus became whether in deferred adjudication proceedings, a plea of not guilty combined with a judicial finding of facts “justifying a finding of guilt” satisfies the first prong of the INA’s definition of conviction. The government argued such a finding “made by the judge under § 18.2-251 is the functional equivalent of a judge finding the alien ‘guilty’.” Id. at 6-7. The panel disagreed. “[I]f the judge finding the alien ‘guilty’ was intended to encompass Crespo’s situation then the phrase ‘or has admitted sufficient facts to warrant a finding of guilt’ would be rendered superfluous since an alien’s plea of guilty would likewise encompass such an admission.” Id. at 7. The panel found the most natural reading requires that “the defendant’s guilt has been established by a trial, plea, or admission.” Id. An informal factual inquiry is not a trial. Crespo made no guilty plea or admission. Therefore, the first prong of the INA’s definition of conviction was not satisfied.
The Crespo decision should encourage us all to re-examine our own State’s first offender statutes. The above-referenced “90-96″ program, for example, is limited to a criminal defendant who “pleads guilty to or is found guilty.” N.C. Gen. Stat. § 90-96(a). What does it mean in North Carolina to be “found guilty”? Is it analogous to Virginia’s judicial finding of facts sufficient to justify a finding of guilt, or is it analogous to a trial? Thanks to Crespo, I look forward to finding out.