Chapter 30 - § 30.2 • IMMIGRATION — TERMS, DEFINITIONS, AND ANALYSIS

• Jurisdiction: Colorado

§ 30.2 • IMMIGRATION — TERMS, DEFINITIONS, AND ANALYSIS

The subspecialty of law relating to the immigration consequences of criminal activity depends in large part upon an analytical framework that incorporates federal and state statutes, along with case law from federal and state courts and the Board of Immigration Appeals (BIA). The analytical framework used to determine whether a criminal offense triggers a particular immigration consequence is unique in nature, and often counterintuitive to attorneys unaccustomed to practicing in immigration court.¹⁷ In addition, immigration law has many legal terms of art, which often cause confusion among state-law practitioners, especially where the same terms have very different meanings for purposes of federal immigration law than they do for state-law purposes.

§ 30.2.1—Definition Of "Conviction" And "Sentence" For Immigration Purposes

A fundamental starting point in understanding the immigration consequences of crimes depends upon the definitions of certain legal terms for immigration purposes. Perhaps the most important and commonplace definitions are for "conviction" and "sentence" — terms that are defined by federal statute and differ significantly from the definitions of those concepts under Colorado statute. For immigration purposes, a "conviction" is defined by federal statute at INA § 101(a)(48)(A) (8 U.S.C. § 1101(a)(48)(A)):

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.¹⁸

When applied to Colorado criminal law, the definition of "conviction" naturally includes traditional guilty pleas as well as convictions at trial. Counterintuitively, the federal statutory definition of "conviction" also encompasses a plea to a deferred judgment and sentence in Colorado, because under such a disposition, the defendant not only admits the essential elements of an offense, but the court also orders some form of restraint on the defendant's liberty.¹⁹ As a result, non-citizen defendants are often unable to avail themselves of the same rehabilitative benefits for immigration purposes that a deferred judgment provides under state law. Unfortunately, although a successful deferred judgment is withdrawn for state law purposes, it will continue to be a "conviction" for federal immigration purposes and, thus, may trigger adverse immigration consequences such as deportation or a bar to lawful immigration status.

Unlike a deferred judgment, a deferred prosecution typically is not a "conviction" for immigration purposes because there is no formal admission of guilt or court-imposed restraint on liberty.²⁰ Additionally, convictions under some state laws for infractions or offenses that do not require the same burdens of proof or provide the same constitutional protections afforded to criminal defendants may not rise to the level of a "conviction" for immigration purposes.²¹ Finally, a juvenile adjudication in Colorado is generally not considered to be a "conviction" for immigration purposes.²²

The statutory definition of "sentence" for federal immigration purposes includes any term of imprisonment ordered by a court of law "regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part."²³ Thus, under Colorado law, a "sentence" includes any partially or fully suspended jail or prison sentence imposed by the court in a criminal case. Therefore, the potential mitigation effect of a suspended sentence in a criminal matter may still carry the same adverse immigration consequences as if the sentence were imposed in full. For example, a long-term lawful permanent resident (LPR) who pleads guilty to a theft offense with a one-year suspended jail sentence may face far more draconian immigration consequences than a plea involving an actual jail sentence of 364 days.²⁴

§ 30.2.2—The Criminal Grounds Of Inadmissibility And Deportability

Generally speaking, non-citizens may be removable from the United States based upon criminal convictions that fall under one of two categories:²⁵ (1) the criminal grounds of inadmissibility,²⁶ or (2) the criminal grounds of deportability.²⁷ Congress may have created these two different categories with the intent to subject those who are unlawfully present to harsher penalties than those who are lawfully present. In reality, however, many provisions are harsher on those lawfully present than those who are not.

Undocumented non-citizens — meaning those persons who entered the United States without inspection and admission, as well as other non-citizens seeking to adjust to some form of lawful status — are generally subject to the grounds of inadmissibility. On the other hand, LPRs and other non-citizens — who were previously inspected by an immigration official and admitted to the United States — are generally subject to the grounds of deportability. Finally, there are many situations in which both the grounds of inadmissibility and deportability may come into play given a particular non-citizen's immigration status and history.

The distinction between inadmissibility and deportability is of significant legal importance because the INA treats different classes of non-citizens to very different legal consequences. Although the grounds of deportability and inadmissibility contain some overlapping provisions, they also substantively differ in critical ways. For example, some criminal grounds of deportability have no statutory counterpart in inadmissibility whatsoever — including the grounds related to aggravated felony offenses,²⁸ firearms offenses,²⁹ and domestic violence and child abuse offenses.³⁰ Thus, certain crimes that might make an LPR deportable from the United States based on a conviction might not trigger a criminal ground of inadmissibility for a person who is undocumented.

Thus, the immigration consequences for a non-citizen will differ depending upon his or her immigration status and whether that status implicates the criminal grounds of inadmissibility or deportability. Like many concepts in immigration law, these legal terms and the analytical framework that applies to them are somewhat counterintuitive, particularly in situations in which a long-term LPR may be deportable for a particular conviction while an undocumented non-citizen with the same conviction might not be inadmissible. Understanding the distinction between the criminal grounds of inadmissibility and deportability is a fundamental first step in working with non-citizens in criminal matters so that criminal defense counsel can ascertain defense...