What is a Criminal "Conviction" in an Immigration Context?

June 28, 2012 , by The McKellar Law Firm, PLLC
By The McKellar Law Firm, PLLC on June 28, 2012 6:59 AM |

As both a criminal defense lawyer and an immigration attorney, I am often confronted with differing definitions of the same word. Knowing and applying the definition in each context is critical to protecting a client's rights. The most commonly misunderstood word by criminal defense practitioners is, oddly enough, the term "conviction" as it is used for immigration purposes.


In an immigration setting, "conviction" is defined at 8 U.S.C. § 1101(a)(48)(A). Per this statute, a conviction can arise in 2 ways:
1. If there is a "formal judgment of guilt of the alien entered by a court," or
2. If adjudication of guilt has been withheld, in cases where a judge or jury finds the alien guilty, the alien enters a plea of guilty or nolo contendere, or "has admitted sufficient facts to warrant a finding of guilty"; and the judge has imposed some form of punishment or penalty.

The usual pitfall for criminal defense attorneys arises in the second part of the definition because there are concepts such as pre-trial diversion, judicial diversion, or deferment, which in a criminal context, would not be considered a "conviction." However, in an immigration setting, even though an adjudication of guilt has been withheld, a client may still be deemed as convicted for immigration purposes.

In a case released earlier this week, Viveiros v. Holder, the First Circuit Court of Appeals reviewed a ruling of the Board of Immigration Appeals, and their review was limited to the first part of the definition of conviction (i.e., formal judgment of guilt of the alien entered by a court). The Court summarizes the facts as follows:

The petitioner was admitted into the United States in 1984 as a lawful permanent resident. He settled in Massachusetts. Roughly a quarter-century later, Massachusetts authorities charged him with shoplifting, see Mass. Gen. Laws ch. 266, § 30A, and larceny, see id. § 30(1). These charges arose out of separate crimes allegedly committed at separate times and places.

Pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii), a person is deportable if they have two or more convictions for crimes involving moral turpitude which did not occur from a "single scheme of criminal misconduct." In the Viveiros matter, the sole issue before the First Circuit was whether the Petitioner was "convicted" with respect to his shoplifting charge.

The Petitioner argued that the shoplifting charge did not result in a "formal judgment of guilt" because he was not punished for this crime because he was assessed a $250 fine, which was later waived by the Court. The Court ultimately rejected his argument because a sentence and/or punishment was imposed and Petitioner was sentenced. However, due to the Petitioner's request (which was supported by his probation officer) to waive the fine, the Court waived the fine 5 months after it had been assessed. The law is clear that unless a conviction is vacated for either procedural or substantive errors, the defendant remains convicted for immigration purposes. See, e.g., Rumierz v. Gonzales, 456 F.3d 31, 39-40 (1st Cir. 2006); Herrera-Inirio v. INS, 208 F.3d 299, 305 (1st Cir. 2000).