Have I been “convicted” of a crime?

Most people think that you can only have a “conviction” on your record if you plea guilty to a crime or are found guilty at trial. And even then, you might hear that if you “pay everything” or have no problems on probation that your record will be clean. Right? WRONG! You do not have to plead guilty to a crime, or even be charged with one, to have a conviction under the immigration laws.

What immigration considers a "conviction"

Under ​INA 101(a​)(​48)(A)​, immigration defines conviction as:

“a formal judgment of guilt of the alien entered by a court or,

if adjudication of guilt has been withheld, where - (i) 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 (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed.

Wait – a conviction even “if adjudication of guilty has been withheld”? Immigration doesn’t consider whether or not the judge even actually announced you guilty as long as you presented a plea or were found guilty at trial. A “suspended sentence” will not save you from having a conviction either. If you plea guilty or are found guilty at trial, even if the judge suspends your entire sentence, you will have a conviction.

Even if I don’t enter a plea but “had admitted sufficient facts to warrant a finding of guilt”? Yes, that means if you talk to police and admit doing drugs, it doesn’t matter if you’re convicted in court or even charged. Immigration could consider you convicted just based on the facts in the report. So be careful!

Always have a lawyer who does crimmigration before talking to law enforcement, including immigration law enforcement.

First Offender and Conditional Discharge

In Georgia, you can present a guilty plea under special programs called “First Offender” or “Conditional Discharge.” If you complete all requirements and probation successfully without violations under either program, the judge will not accept your guilty plea. Simply put, the plea is never entered into the system with the court. On your criminal record it will state you enter a plea of guilty under First Offender or Conditional Discharge, but under “Adjudication” it will state “Adjudication Withheld,” not “guilty.” Because that plea you made was not accepted by the court. You can honestly say under STATE law that you have not been convicted of a crime.

However, Immigration STILL counts a First Offender or Conditional Discharge as a plea of guilty because remember how you had to present a plea to get into either program? A plea of guilty that the court could have accepted if you messed up and violated the terms? That plea, although never accepted by the court, is admitting “sufficient facts to warrant a finding of guilt” and is considered a conviction under the immigration laws.

Pardons

Full pardons under Georgia law also do not erase convictions under the immigration laws. This will be expanded upon at another time.

Pre-Trial Diversion (Pre-Trial Intervention, PTD, PTIT) – Your only friend

In Georgia, completion of a pre-trial diversion program is not considered a “conviction” under the immigration laws. When you enter into pre-trial diversion, you do not speak to the judge or enter a plea of guilty. You only talk to the prosecutor and the whole program is through the prosecutor’s office. Once you successfully complete the program (payment of a fine, class, community service, etc.), the prosecutor goes to the court and says the State does not wish to press charges against the Defendant. So the case is dismissed. Diversion “diverts” the defendant from ever having a plea or trial and you do not have to admit any guilt to get into pre-trial diversion. Therefore you will NOT have a conviction under the immigration laws if you complete pre-trial diversion.

Anna Erwin, Esq.
Criminal and Immigration Defense