§ 3.2 Convictions Under Immigration Law

• Library: Rights of Foreign Nationals (OSBar) (2020 Ed.)

§ 3.2 CONVICTIONS UNDER IMMIGRATION LAW

§ 3.2-1 Definition of Conviction under Immigration Law

In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Pub L No 104-208, Div C, 110 Stat 3009-546. The IIRIRA defined conviction 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.

8 USC § 1101(a)(48)(A). Thus, a conviction exists when a formal judgment of guilt is entered by a court. A conviction also exists upon an admission or finding of guilt and the imposition of "some form of punishment, penalty, or restraint on the alien's liberty." 8 USC § 1101(a)(48)(A)(ii). Even when adjudication is deferred, the original finding or confession of guilt is sufficient to establish a conviction for purposes of the immigration laws.

NOTE: The INA defines alien as "any person not a citizen or national of the United States." 8 USC § 1101(a)(3). For purposes of this chapter, the term has the same meaning as noncitizen.

A judgment of guilt that has been entered by a general court-martial of the United States Armed Forces qualifies as a conviction within the meaning of the INA. Matter of Rivera-Valencia, 24 I&N Dec 484, 491 (BIA 2008).

The imposition of costs and surcharges in the criminal sentencing context constitutes a form of punishment or penalty for purposes of establishing that a noncitizen has suffered a conviction within the meaning of the INA. Matter of Cabrera, 24 I&N Dec 459 (BIA 2008). But a judgment of guilt for an Oregon violation in a proceeding conducted under ORS 153.076 is not a conviction for immigration removal purposes. Matter of Eslamizar, 23 I&N Dec 684 (BIA 2004).

§ 3.2-2 Misdemeanor versus Felony

In general, immigration consequences of criminal convictions for noncitizen criminal defendants are not dependent on the state classification of the crime. Misdemeanor convictions frequently result in the removal of noncitizens. Simply reducing a charge from a felony to a misdemeanor will not guarantee that a noncitizen criminal defendant will be able to fight removal from the United States.

PRACTICE TIP: The criminal defense attorney must not make the mistake of advising a noncitizen that an Oregon misdemeanor conviction does not result in inadmissibility to the United States. If the noncitizen has another misdemeanor conviction, he or she would not be eligible for the "petty offense exception," found at 8 USC § 1182(a)(2)(A)(ii). The defense attorney must be familiar with the defendant's entire criminal history, charged or uncharged.

An Oregon Class A misdemeanor conviction no longer triggers removal as an aggravated felony because the maximum sentence under Oregon law is now 364 days. In 2017, Oregon adopted a 364-day maximum jail term for misdemeanors and joined Washington (2011), Nevada (2013), and California (2014). Or Laws 2017, ch 706, § 22 (amending ORS 161.615, effective Aug 15, 2017); Wash Sess Laws 2011, ch 96 (amending various statutes that prescribe the maximum jail time for gross misdemeanors, effective July 22, 2011); Nev Stat 2013, ch 229 (amending various statutes that prescribe the maximum jail time for gross misdemeanors, effective May 28, 2013); Cal Stat 2014, ch 174 (codified at Cal Penal Code § 18.5, effective Jan 1, 2015, but since made retroactive). They follow eleven other states whose misdemeanor charges already carried a maximum sentence of less than one year. See 8 USC § 1101(a)(43)(F)-(G)) (definition of aggravated felony); 8 USC § 1101(a)(48)(B)) (suspension of sentence is irrelevant); 8 USC § 1227(a)(2)(A)(iii)) (an aggravated felony conviction is grounds for removal).

A conviction for an aggravated felony (as defined by the INA) will trigger the most damaging and devastating immigration consequences...