What Constitutes a Conviction for Immigration Purposes?
A person must be “convicted” of a crime which constitutes an aggravated felony. A “conviction” under the INA requires that: 1) a judge or jury finds the person guilty or the person admits guilt, pleads no contest, or admits sufficient facts to support a finding of guilt; and 2) the judge orders some form of punishment, penalty, or restraint. This includes cases that have been sealed or expunged. Matter of Roldan, 22 I&N Dec. 512 (BIA 1999). Note that the 9th Circuit reversed the BIA’s decision in Roldan, holding that expungement, deferred adjudication, or other “rehabilitative relief” will eliminate the immigration effect of a first offense, simple possession conviction. Lujan-Armendariz v. INS (with Roldan v. INS joined), 222 F.3d 728 (9th Cir. 2000). Lujan-Armendariz only applies to immigration cases in the 9th Circuit.
Vacation of judgment and other post-conviction relief (including executive pardon) should remove aggravated felon status (with the exception of drug crimes—See Drug Convictions and Abuse for more information). The immigration definition of “conviction” does not include juvenile offenses, cases on direct appeal, and cases that have been referred to a state diversion program (unless a person is required to admit guilt, plead no contest, or admit sufficient facts to support a finding of guilt as a condition of referral to the program).