Fourth Circuit Rules Deferred Adjudication May Not Be A Conviction for Immigration Purposes
|January 25, 2011||Posted by admin under Criminal, Deportation & Removal, Waivers||
The Fourth Circuit ruled earlier this month in Crespo v. Holder, __ F.3d. __, that a deferred adjudication may not be a conviction for immigration purposes. The respondent was a Peruvian who had overstayed his tourist visa in 1997. When his wife, a U.S. citizen, petitioned for his green card, respondent found that he needed a “waiver” to overcome an earlier conviction for possession of marijuana under Virginia Code 18.2-251.
This provision of the Virginia Code applies to a first offender who pleads either guilty or not guilty. After such plea,the court may, if it finds facts that are sufficient to justify a finding of guilt, defer proceedings and place the offender on probation. This “deferred adjudication” also means that the court has not entered a judgment of guilt.
The Court delineates the five circumstances by statute under which a deferred adjudication can still be considered a “conviction” for immigration purposes and subsequently ruled that respondent met none of them. One of the prongs represented a snag for the government and that was where “a judge or jury has found the alien guilty”. The Court ruled this meant a finding of guilt by jury because to interpret it otherwise would render Congress’s wording of the other four factors superfluous.
This case is a victory for immigrants and lends credence to the principle that lawyer’s advise their clients not to sign or admit to anything. Had respondent pled guilty or made admissions of fact sufficient to warrant a finding of guilt – a factor that is likely met by defendant signing something – the outcome would have been different. Since the deferred adjudication in this case was not a conviction under the immigration laws, respondent was free to pursue the waiver in connection with his adjustment of status application.