Typically, if the government is going to institute deportation proceedings on the basis of a criminal charge, there must be a conviction.  In immigration court, the term “conviction” is interpreted very loosely.  For example, in the State of Florida, if a person receives a “withhold of adjudication,” they are technically not convicted, even though they have pled no contest or guilty and receive some form of punishment.  However, in immigration court, a withhold of adjudication would serve as a conviction sufficient to form the basis of a removal order.  This has been pretty well established in the immigration law community for some time.  What hasn’t been established is whether a person can be deported when there has been no formal conviction in criminal court, but the non-citizen admits to the elements of the offense before a criminal law judge.

The Fourth Circuit has recently spoken on this issue in Boggala v. Atty Gen’l, No. 16-1558 (4th. Cir. 2017).  Vijaya Boggala, a citizen of India, was arrested for solicitation of a minor.  He entered into a deferred prosecution agreement with the state.  A deferred prosecution agreement is basically front loaded probation.  It is an agreement to complete certain conditions (i.e. probation, counseling, etc.) and the state agrees to drop the charges upon successful completion of those conditions.  In this case, Mr. Boggala was required to admit to elements of the offense in open court before a judge, which he did.  He then successfully completed all the conditions of his deferred prosecution agreement and the charges against him were dropped.  You wouldn’t think that he would be subject to deportation, right?  After all, the charges were dropped.  Despite not being convicted of the crime, the Department of Homeland Security (DHS) instituted deportation proceedings against Mr. Boggala. They charged him with being deportable under INA Section 237(a)(2)(A)(iii), as an alien convicted of an aggravated felony, and under INA Section 2237(a)(2)(A)(i), as an alien convicted of a crime involving moral turpitude.  The question presented to the Fourth Circuit was whether Mr. Boggala was “convicted” of the offense as that term is interpreted under the Section 237(a)(2) of the Immigration and Nationality Act.

Section 101(a)(48)(A)(i) of the INA defines “conviction” as a “a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where…the alien… has admitted sufficient facts to warrant a finding of guilt.”  The Fourth Circuit thus analyzed whether Mr. Boggala admitted sufficient facts to warrant a finding of guilt and not whether the court actually made a finding of guilt.  The Court found that because Mr. Boggala stipulated to the facts that were to be used against him, he was convicted within the meaning of Section 101(a)(48)(A)(i), despite not having been convicted in criminal court.

Any criminal arrest or conviction will have some negative consequence for a non-citizen.  Whether it is prolonged delay at the border while Custom and Border Protection (CBP) agents ask you questions, whether you are denied a bond in immigration court, whether you are denied the right to become a United States citizen or whether you are placed in deportation proceedings, criminal charges are bad.  Some criminal cases will have more severe consequences than others.  When it comes to the worst possible criminal conviction you can have, Aggravated Felonies are at the top of that list.

AGGRAVATED FELONIES ARE BAD!

Aggravated Felonies are bad!  Real bad.  They are referred to in many different provisions of the Immigration and Nationality Act.  They almost always will result in deportation.  They prevent a person from ever becoming a United States citizen.  And they preclude you from obtaining almost all forms of relief in immigration proceedings.

Deferred Action for Childhood Arrivals (“DACA”) has been a saving grace for countless people who have no other form of relief from deportation.  DACA is available to people who came into the United States without “admission,” when they were children.  In its simplest form, it is a declaration by the government that they will not institute deportation proceedings for a specified period of time.  The practical benefits to the individual are that the person becomes eligible for certain benefits, like a driver’s license and employment authorization, and they don’t have to look over their shoulder and worry that they are going to be taken into ICE custody.

In order to be eligible for DACA, you must meet the following requirements:

1. Were under the age of 31 as of June 15, 2012;

Just like American citizens, sometimes immigrants find themselves on the wrong side of law. Whether its a DUI or possession of a small amount of marijuana, even the most minor criminal offense can have devastatingly negative immigration consequences for non-citizens.

Can a lawful permanent resident be deported for a DUI? The answer is no, however, that DUI combined with other criminal arrests and convictions can make USCIS deny a green card holder’s application for citizenship. Can a DUI make someone with no status deportable? Again, the answer is no, but a DUI will stop someone from getting DACA (Deferred Action for Childhood Arrivals) and other forms of Prosecutorial Discretion.

The crime that is much worse for both lawful permanent residents and for immigrants with no status is possession of any controlled substance, even a small amount of cannabis for personal use. For an immigrant with no status, a conviction for any federally controlled substance in any amount will likely lead to detention, removal proceedings and bar almost all forms of relief from removal. Yes, this includes a misdemeanor amount of cannabis for personal use.