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 past criminal history often ask why United States Immigration & Citizenship Services (USCIS) put them in deferred inspection or removal proceedings, or denied their application for citizenship, when a state court or municipality dismissed their conviction many years ago.

Unfortunately, criminal attorneys representing aliens in criminal matters in the United States often are not aware about the definition of conviction under immigration law -- and thus unaware of situations when dismissals don't make a difference.

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

The definition of a conviction under immigration law is unique from its definition in other areas of U.S. law. Criminal law statutes at both state and federal levels contain various types of procedures including deferred adjudications, sealings, vacaturs, and suspended imposition of sentences, which purport to avoid or eliminate a conviction for most purposes.

However, under Immigration and Nationality Act ("I.N.A."), 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.

Suspended Imposition of Sentence (SIS)

An SIS involves only a plea or finding of guilt with no sentence imposed by the court. This is a suspended IMPOSITION of sentence, or SIS. 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 any revocation of an SIS sentence, the court may impose up to the maximum sentence provided by statute.

Under federal immigration law, however, you have a conviction whether you successfully completed your SIS or your SIS has been revoked.

Suspended Execution of Sentence (SES)

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

But an SES counts as a conviction under state law even if you complete your probation successfully, and it is a conviction under 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.

Pretrial Diversion

Pretrial diversion or pretrial intervention that does not require a formal plea before the court, and results in the ultimate dismissal of the charges, is effective in avoiding a conviction for immigration purposes.

Under pretrial diversion or intervention schemes, a client 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 Section 101(a) (48) (A) of the I.N.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, whereby the client signs a statement admitting guilt that is not placed in the court file. The result is that there will be no conviction under immigration law.

This written admission, if made outside the presence of the courtroom, does not qualify as an admission under 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 for an immigrant client, your attorney will take into consideration all the positive factors that can help your case. It is important to inform the prosecuting attorney if you have no prior criminal history, present sufficient 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 him or her from conviction under immigration law, which will quite possibly lead to deportation and removal from the United States.


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