Overview
Because immigration penalties are severe, mandatory, and often immune to equitable mitigation once a conviction is finalized, proactive defense strategies during plea bargaining are essential. Criminal defense counsel must craft dispositions that satisfy prosecution interests while shielding noncitizen clients from deportation.
Avoiding a "Conviction"
INA § 101(a)(48)(A) Definition
Under federal immigration law, a conviction exists when:
Option 1: A formal judgment of guilt is entered by a court
Option 2: Adjudication of guilt is withheld but:
- A judge/jury found guilt, a guilty/nolo plea was entered, or facts were admitted warranting guilt, AND
- The judge ordered some punishment, penalty, or restraint on liberty
The Diversion Trap
Many state deferred adjudications are NOT immigration-safe because they require:
| Element | Creates Conviction? |
|---|---|
| Preliminary guilty plea held in abeyance | Yes, if followed by... |
| Ordered restraint (counseling, probation, fees) | YES - conviction exists |
Even if the criminal court dismisses charges upon program completion, the conviction exists for immigration purposes.
Immigration-Safe Dispositions
| Disposition | Safe? | Key Requirement |
|---|---|---|
| True pre-plea diversion | Yes | No admission of guilt before rehabilitative program |
| Deferred prosecution | Yes | Charges filed but no plea entered |
| Continuance without finding | Maybe | Depends on whether plea + restraint occurred |
| Post-plea diversion | NO | Guilty plea = conviction regardless of dismissal |
The 364-Day Rule
Critical Threshold
Many aggravated felonies require a term of imprisonment of one year or more. The distinction between 364 days and 365 days is absolute:
| Sentence | Immigration Consequence |
|---|---|
| 365 days (even if entirely suspended) | Aggravated felony |
| 364 days (even if fully served) | NOT an aggravated felony |
What Counts as "Imposed"
| Sentence Component | Counts Toward Threshold |
|---|---|
| Time ordered by judge | Yes |
| Suspended time | Yes |
| Probation (without custody) | No |
| Time actually served | Irrelevant |
State Legislative Reforms
Several states have reduced misdemeanor maximums to protect against aggravated felony classification:
| State | Reform |
|---|---|
| California | Penal Code § 18.5 - All misdemeanor maximums reduced to 364 days |
| Washington | Similar reform enacted |
| Nevada | Similar reform enacted |
Sentence Negotiation Strategies
Step 1: Cap the Sentence
For threshold-based aggravated felonies:
| Offense Type | Target Sentence |
|---|---|
| Crimes of violence | 364 days or less |
| Theft/burglary | 364 days or less |
| Obstruction/perjury | 364 days or less |
Step 2: Structure the Sentence
| Strategy | Implementation |
|---|---|
| Concurrent sentences | Multiple counts served simultaneously |
| Avoid consecutive | Stacked sentences can exceed threshold |
| Minimize suspended time | Suspended time counts toward "imposed" |
Step 3: Document Clearly
Ensure the judgment clearly reflects:
- Total term imposed (not just executed time)
- Whether sentence is concurrent or consecutive
- Actual days of credit
Charge Bargaining Strategies
Theft vs. Fraud Analysis
Scenario: Defendant faces theft charges with $15,000 loss
| Strategy | Result |
|---|---|
| Plead to theft, sentence 364 days | NOT aggravated felony (theft requires 1-year sentence) |
| Plead to fraud, stipulate loss under $10,000 | NOT aggravated felony (fraud requires $10K loss) |
| Plead to theft, sentence 365 days | Aggravated felony |
| Plead to fraud without loss limitation | Aggravated felony (actual loss can be proven) |
Controlled Substance Strategies
Because any federal controlled substance conviction triggers removal, defense should:
| Strategy | Implementation |
|---|---|
| Broader state schedule | Plead to substance not on federal schedule |
| Unspecified substance | Plead to "controlled substance" without identifying |
| Paraphernalia | May avoid substance conviction (jurisdiction-dependent) |
| Accessory charges | May avoid direct substance offense |
Domestic Violence Avoidance
Domestic violence deportability requires a "crime of violence." Defense strategies:
| Approach | Target Charge |
|---|---|
| Reduce to non-violent | Disorderly conduct, trespass |
| Remove relationship element | Generic assault (if statute is indivisible) |
| Minimize force element | Offensive touching, harassment |
Juvenile Adjudications
Not a Conviction
Based on BIA precedent evaluating state proceedings against the Federal Juvenile Delinquency Act (FJDA):
An adjudication of juvenile delinquency is not a criminal conviction for immigration purposes.
What This Means
| Ground | Triggered by Juvenile Adjudication? |
|---|---|
| Aggravated felony | No |
| CIMT | No |
| Domestic violence | No |
| Controlled substance conviction | No |
Limitations
While adjudications don't trigger conviction-based grounds, underlying conduct can still affect:
| Ground | May Still Apply |
|---|---|
| Drug trafficking "reason to believe" | Yes - conduct-based |
| Admissions to controlled substance elements | Yes - conduct-based |
| Good Moral Character (conduct inquiry) | Yes - conduct-based |
Defense Priority
For juvenile clients, maintain juvenile court jurisdiction wherever possible to avoid adult conviction.
Pre-Plea Checklist
Before Any Plea Discussion
- [ ] Confirm client's immigration status
- [ ] Identify specific grounds of removability at risk
- [ ] Calculate threshold requirements (sentence, loss amount)
- [ ] Research state statute under categorical approach
- [ ] Consult immigration counsel if needed
During Negotiation
- [ ] Target immigration-safe disposition
- [ ] Cap sentence below applicable threshold
- [ ] Avoid identifying aggravating elements in record
- [ ] Consider charge alternatives
- [ ] Explore pre-plea diversion
Documenting the Plea
- [ ] Ensure plea colloquy reflects only statutory elements
- [ ] Keep charging documents generic
- [ ] Avoid stipulations to unnecessary facts
- [ ] Document sentence clearly
Quick Reference: Common Scenarios
| Charge | Immigration Risk | Safe Alternative |
|---|---|---|
| Theft $500 | Aggravated felony if 1-year sentence | Cap at 364 days |
| Theft $15,000 | Aggravated felony if 1-year sentence | Cap at 364 days OR plead to fraud with loss <$10K |
| Simple assault | Possible CIMT | Plead to disorderly conduct |
| DV assault | Deportable + possible CIMT | Remove relationship identifier if possible |
| Drug possession | Deportable + inadmissible | Pre-plea diversion OR broader state substance |
| Drug sale | Aggravated felony | Extremely difficult - explore possession reduction |
Related Resources
- CIMTs & Aggravated Felonies - Understanding thresholds
- Categorical Approach - Analyzing statute elements
- Padilla Requirements - Defense counsel obligations