Pretrial Agreements May Qualify as Convictions Under the INA

The Board of Immigration Appeals (BIA) recently clarified when pretrial agreements in criminal cases qualify as “convictions” under the Immigration and Nationality Act (INA). In its decision in the Matter of Mohamed, the BIA determined that an intervention or a diversion program designed to avoid a guilty plea or a conviction at the state level may still qualify as a criminal conviction under U.S. immigration law. The key inquiry is not how state law classifies the agreement, but whether the agreement could be considered a conviction under the INA because: (1) the foreign national admits to sufficient facts that warrant a finding of guilt; and (2) the judge orders some form of punishment.

Background: Matter of Mohamed

The foreign national in Matter of Mohamed was a lawful permanent resident (LPR, or “green card” holder) and a citizen of Somalia. He was arrested and indicted in Texas for possession of a controlled substance with intent to deliver. The prosecutor and the foreign national later entered into a pretrial intervention agreement that required him to undergo community supervision (i.e., probation), community service, and payment of restitution and fees. The foreign national agreed that any violation of the terms would result in a guilty plea being entered and the admission into evidence of his sworn statement admitting to the criminal offense. In exchange, the state agreed to dismiss the case if the foreign national complied with the agreement. While it would seem to make sense from a layperson’s point of view that, if a case is dismissed, the foreign national should not be impacted, the BIA disagreed by discussing certain fundamental concepts under U.S. immigration law on the issue of a conviction under the INA.

Definition of Conviction Under the INA Is Broad

The BIA has long held that whether a conviction exists for immigration purposes depends on the definition of conviction in the INA, not on differences in state law or terminology. Under the INA, a conviction exists where either: (1) a formal judgment of guilt is entered by a court; or (2) a judge or jury finds the foreign national guilty, the foreign national enters a plea of guilty or nolo contendere, or the foreign national admits sufficient facts to warrant a finding of guilt, and a judge orders some form of punishment, penalty, or restraint.

The issue in Matter of Mohamed was whether a pretrial intervention agreement – which the state of Texas purposefully created to avoid a criminal conviction and its harsh effect on certain first-time, low-level offenders – meets the INA’s second definition of conviction. According to the BIA, the foreign national’s sworn statement admitting to every element of the crime charged qualified as an admission of sufficient facts to warrant a finding of guilt, satisfying the first prong of the definition. Furthermore, under Texas law, only a judge can authorize pretrial intervention programs and impose certain fees. Therefore, the BIA held the community supervision, community service, and payment of restitution and fees were in fact punishment and ordered by the judge, thereby satisfying the second prong. This meant that the foreign national’s pretrial intervention agreement satisfied the definition of conviction under the INA.

Conclusion

The definition of a criminal conviction under the INA, which can lead to inadmissibility or deportability, differs from definitions under state law. Pretrial agreements promising dismissal of a case may still result in a conviction for immigration law purposes. Consultation with an experienced immigration attorney is strongly advised for any noncitizen facing criminal charges. Generally, the safest time to consult with an attorney is before pleading to the elements of the crime or admitting any facts.

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