Countless times I have heard judges say accepting and successfully completing deferred adjudication will not result in a conviction. However, when your client is not a U.S. citizen, that is simply not true. That is why it is our duty as criminal defense attorneys to make sure our clients fully understand the immigration consequences they face before signing any paperwork.

The Immigration and Nationality Act defines a conviction as “a formal judgment of guilt…entered by a court” or “if adjudication of guilt has been withheld, where … a judge or jury has found the alien guilty, or the alien has entered a plea of guilty or nolo contendere, or has admitted sufficient facts to warrant a finding of guilt, and … the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.” See INA § 101(a)(48)(A), 8 USC § 1101(a)(48)(A). The Board of Immigration Appeals has used this definition to create a straightforward test for determining whether a noncitizen has a criminal conviction:

See Matter of Cabrera, 24 I&N Dec. 459, 460−62 (BIA 2008), Matter of Mohamed, 27 I&N Dec. 92 (BIA 2017). 

Thus, even if the charge is dismissed after successful completion of the deferred adjudication, immigration courts will still find that your client was convicted of the charged crime. Id. 

This can have significant consequences for your client depending on their particular facts and the charge itself. For example, if you have a client that is a DACA recipient and they successfully completed deferred adjudication for a DWI, your client will still have a DWI conviction and will be barred from receiving DACA. See Immigrant Legal Resource Center, Understanding the Criminal Bars to the Deferred Action Policy for Childhood Arrivals (Oct. 2012).  

So, what are some options you can peruse if you have a noncitizen client that does not want to risk jail time and the ICE detainer the comes along with it? One possible option you should fight for is a conditional dismissal. It is the same concept of deferred adjudication in the sense that both end in a dismissal after completing some type of rehabilitative conditions. Please note, that this would fulfill the imposition of punishment portion of the BIA equation. See Matter of Mohamed, 27 I&N Dec. 92 (BIA 2017). However, the big difference is your client will not ever go in front of a judge and plea guilty or no contest and there will not be a finding of guilt in a conditional dismissal. Thus, there will be no conviction for both state and immigration purposes. Be warned! Immigration courts can still deem a dismissed offense is a dismissal if the judgement contains admission or stipulation to facts or evidence sufficient to warrant a finding of guilt. See Matter of Mohamed, 27 I&N Dec. 92 (BIA 2017). So, be sure to double check what is written in the dismissal orders themselves.  

Another option would be to plea to an immigration neutral offense. This option obviously would still result in a conviction, but the offense will not be one that will destroy their status. For example, while obstruction of a highway and a DWI first are both Class B Misdemeanors and can have the same conditions, obstruction of a highway will not automatically destroy DACA. See Immigrant Legal Resource Center, Understanding the Criminal Bars to the Deferred Action Policy for Childhood Arrivals (Oct. 2012).  

Always remember, removal from the United States is a collateral consequence like no other. It is equivalent to banishment and may be a more important penalty than the actual sentence. See Padilla v. Kentucky, 559 U.S. 356,365,373 (2010). Thus, it is important to make sure we as criminal defense attorneys are fighting for immigration neutral consequence for our noncitizen clients. 

BIO: Brian Ehrenberg is the Associate Director of the Center for Criminal Justice at Thurgood Marshall School of Law and a partner at Valdes Ehrenberg, Pllc. He is also a member of TDCLA’s Crimmigration Committee. He can be reached at [email protected] or 214-915-8835.