Impact of Deferred Prosecution on immigration status?

U

ukcitizen

New Member
If as an alien you have been arrested on suspicion of a domestic violence crime and charged, but a judge has ordered a "Deferred Prosection" without any formal plea being entered, does this affect your immigration status?

I have seen conflicting views on these forums.

Just to be clear:
- Arrested
- Charged
- Consent to proceed before judge
- Judge orders "Deferred Prosecution" without any formal plea of guilty/not guilty being entered. No conviction, sentence or other punishment (as no prosecution)
-Charges dismissed 12 months later if no other crime commited during deferral period.

I understand that Deferred Prosecution is sometimes awarded to first time offenders where the risk of that person re-offending is minimal, AND where were the case to be prosecuted, there is a strong likelihood that the defendant would be found not guilty. Intent being to minimize wasted court time.

This is different from Deferred Entry of Judgement or other Diversions, in that if during the deferral period another crime was commited, the defendant could still plead "Not Guilty" to the original charge and be found "Not Guilty".

Is there anyone out there who really understands the legalities in this area and can provide a definitive answer please? Not looking for recommendations for alternatives - events above have already happened.
 
My understanding is that in a situation as you describe where there is no admission of guilt or of the underlying allegations by the defendant and where the disposition is not treated as a conviction for any purposes, it would not be a conviction for immigration purposes that could render you inadmissible or otherwise ineligible for a particular application.

However the full circumstances of arrests and diversions almost always have to be disclosed when making an application to USCIS, and could be taken into account where there are independent discretionary determinations of moral character, depending on the totality of the circumstances. In other words there is a lower burden of proof in immigration proceedings than criminal proceedings, so while such a diversion for a charge that would make you inadmissible if convicted would not result in you being inadmissible, it is not necessarily the case that you cannot be denied immigration or naturalization based on good moral character based on the allegations and the totality of the circumstances.

The short version of what I'm trying to say is that without more details, the consequences of a diversion are not the same as a conviction, but that doesn't necessarily mean there are no immigration consequences at all.
 
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Here is a place to start to do some research...

1.1 Convictions: Section 101 (a) (48) (A)

To avoid the diverse results caused by referring to state law, the BIA created a federal case-law standard for deciding whether the alien was convicted. Matter of Ozkok, 19 I & N Dec. 546 (BIA 1988). Congress’s new statutory definition expanded the case-law, and set a new federal immigration standard for convictions and sentences. Though broader than the BIA’s case-law definition of conviction, Congress’s definition adopted the federal court case-law definition of conviction requiring a factual basis for guilt and a restraint on liberty, including probation. Deal v. U.S. 508 U.S. 129, 113 S.Ct. 1993, 124 L.Ed. 44 (1993) ; Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 103 S.Ct. 986, 74 L.Ed. 2d 845 (1983) . Under the new definition, the alien’s conviction attaches with the finding or plea and order and later events do not control. Now, as before, probation often qualifies as a conviction and sentence under immigration law. Also, Congress expressly applied this new definition to pending cases though the alien’s conviction was before the new definition was added to the Act, i.e., ancient convictions. Matter of S-S-, Int. Dec. 3317 (BIA 1997) ; IRA2 322 (c) “apply to convictions and sentences entered before, on, or after ... this Act.”

The statute distinguishes the court’s decision about guilt (formal convictions and deferred adjudication probation- a conviction equivalent) from court’s decision about the length of confinement/jail-time and probation-time (sentences though imposition is suspended).

101 (a) (48) (A) :

... conviction means ... a formal judgment of guilt ENTERED by the court.. or, if adjudication of guilt has been withheld

where ... found ... guilty, or ... plea of guilty or nolo ... or ... admitted sufficient facts .... to warrant ... guilt

judge ... ordered some form of punishment, penalty, or restraint on ... liberty ... imposed.

Again, the focus of this section is the judge’s decision about guilt. Unlike 101 (a) (48) (B) where the focus is on the judge’s decision about jail-time, 101 (a) (48) (A)’s reference to punishment is evidence that the judge believes the alien is guilty. The reference to the judge’s order of some form of punishment seems to be a guarantee that the judge believes the alien is guilty enough to impose a restraint on the alien’s liberty. Probation-time is a restraint on liberty. Ozkok.

Also, note that the time when the “conviction” decision is made: “ formal judgment of guilt … entered or, .. where ... found .... or ... plea of guilty .... or admitted sufficient facts ... and judge ... ordered some form of ... restraint on ... liberty .... Thus, a conviction attaches when there is an entry of a formal judgment or if no formal judgment where there is a finding of guilt or a plea of guilty and there is an order restraining liberty. The definition is in the disjunction plea of guilty OR found guilty. If an alien pleas guilty and the judge defers a finding of guilt, the alien is guilty despite the judge’s deferral. (The effect of later events on this determination is discussed under finality and erasing convictions - 4.1, 4.3 & 4.4). Thus, immigration attorneys search the files for documents that at one time met these requirements.
 
Clarification details

Thanks for your detailed reply. From the court docket:

CONSENT to appear before magistrate judge
MINUTES before magistrate judge
CJA FORM 23 (Financial Affidavit)
ORDER for 1 year Deferred Prosection
ORDER for DISMISSAL

There was no formal admission of guilt, nor any penalty or remedial requirement imposed. Released immediately, with no conditions.

No previous arrests, no subsequent arrests.

In the MINUTES there is a "C/R" reference of the form C/R X:XXX-XXXX. Is this a Court Record reference?
 
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