Criminal Convictions & Immigration: Suspended Sentence, Execution of Sentence & Pretrial Diversion

The federal definition of a conviction is broader than many immigrants realize, and even dismissed criminal convictions can lead to denied immigration applications or removal (deportation).

By Evita Tolu
Immigrants with a criminal history often ask why United States Immigration and Citizenship Services (USCIS) has put them into deferred inspection or removal (deportation) proceedings, or denied their application for U.S. citizenship, despite a state court or municipality having dismissed their conviction years before.

Unfortunately, criminal attorneys representing non-citizens in criminal matters in the United States often are not aware about the definition of a "conviction" under immigration law—and thus don't realize when dismissals don't make a difference to someone's U.S. immigration hopes.

What's Considered a "Conviction" Under U.S. Immigration Law

The definition of a conviction under immigration law is distinct from its definition in other areas of U.S. law. Criminal law statutes at both state and federal levels contain various types of procedures, such as deferred adjudication, record sealing or expungement, vacatur, and suspended imposition of sentences, all of which purport to avoid or eliminate a criminal conviction for most purposes.

However, under the Immigration and Nationality Act ("I.N.A.") at Section 101(a)(48), a conviction exists when there has been either a formal judgment of guilt entered by the court, a plea of guilt or no contest, or an admission to the offense, and the court ordered some form of punishment, penalty, or restraint on the individual's liberty—regardless of any suspension of the imposition or execution of that imprisonment in whole or in part.

To fall within the definition of a conviction under state law, a conviction requires only a plea of guilty or a finding of guilt AND that a sentence was imposed.

Effect of a Suspended Imposition of Sentence (SIS) on Immigration Applications

A suspended imposition of sentence or SIS involves only a plea or finding of guilt with no actual prison time or other sentence imposed by the court. The key is that this is a suspended IMPOSITION of sentence. With no sentence imposed, there is no conviction under most state laws, and upon successful completion of probation, there is no conviction on your record. Upon revocation of an SIS sentence, the court may impose up to the maximum sentence provided by statute.

But it's a different matter under federal immigration law. Here, you have a conviction on your record whether you successfully completed your SIS or your SIS has been revoked.

Effect of a Suspended Execution of Sentence (SES) on Immigration Applications

Now let's say the judge imposes a sentence of three years in prison in your case, but suspends the execution of the sentence and places you on probation. That is a suspended EXECUTION of sentence, or "SES."

An SES counts as a conviction under state law even if you complete your probation successfully, and not surprisingly is considered a conviction under federal immigration law, as well. However, if an SES term of probation is revoked, the sentence is the same sentence previously imposed but suspended, or in this scenario, three years in prison.

Effect of Pretrial Diversion on Immigration Applications

Pretrial diversion or pretrial intervention that does not require a formal plea before the court, and that results in the ultimate dismissal of the charges, will avoid a conviction for immigration purposes. The defendant does not enter a plea, but is placed under some form of probation-type program—while criminal charges stay in abeyance.

Upon successful completion of the program, the charges are dismissed. Because the client makes no formal admission of guilt on the record under pretrial diversion or intervention programs, the first prong of I.N.A. Section 101(a)(48)(A) is not met.

Avoiding a Criminal Charge on Your Record

If your attorney cannot persuade a prosecuting attorney to dismiss the charges in a criminal case, the second best option is to reach an agreement with the prosecutor bypassing the court. You would sign a statement admitting guilt, but this would not be placed in the court file. Thus there would be no conviction under U.S. immigration law because it is not a part of the record, which includes the indictment, charges, plea, and final judgment and sentence, under 8 C.F.R. § 1003.41.

When it comes to negotiating a favorable disposition of a criminal case, your attorney will take into consideration all the positive factors that can help your case. Be sure to inform the prosecuting attorney if you have no prior criminal history and present evidence that you are not likely to violate the law in the future and have strong community ties and family support for rehabilitation.

If your family member is facing criminal or immigration charges in a state, federal or immigration court, you need to call an immigration/criminal defense attorney to protect that person from a conviction under immigration law, which will quite possibly lead to deportation and removal from the United States.

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