In Crespo v. Holder the U.S. Court of Appeals for the Fourth Circuit held Mr. Crespo's adjudication under Virginia Code 18.2-251 did not satisfy any of the five situations that Congress listed in 8 U.S.C. section 1101(a)(48)(A) to satisfy a sufficient finding of guilt to constitute a "conviction" for immigration purposes.
This case involved the case of Franklin Eduardo Crespo, a Peruvian national, who entered the U.S. with a B-2 visitor's visa and overstayed. He later applied to adjust his status to that of a Lawful Permanent Resident based on his marriage to a U.S. citizen. Upon the approval of the Immigrant Relative Petition, Mr. Crespo submitted an adjustment of status petition along with a "212h" waiver with the immigration judge.
This case involved the case of Franklin Eduardo Crespo, a Peruvian national, who entered the U.S. with a B-2 visitor's visa and overstayed. He later applied to adjust his status to that of a Lawful Permanent Resident based on his marriage to a U.S. citizen. Upon the approval of the Immigrant Relative Petition, Mr. Crespo submitted an adjustment of status petition along with a "212h" waiver with the immigration judge.
The waiver was denied by an immigration judge who held that Mr. Crespo was ineligible to apply for a 212h waiver because he had two "convictions" for marijuana possession. The Immigration Judge determined that one of the convictions, which occurred in 1997 pursuant to Virginia Code 18.2-251, counted as a "conviction" for immigration purposes under 8 U.S.C. 1182(h) even though it was a deferred adjudication. The Board of Immigration Appeals (BIA) dismissed Mr. Crespo's appeal, agreeing with the Immigration Judge that the 1997 adjudication counted as a conviction and that Mr. Crespo was ineligible for a 212h waiver. Mr. Crespo petitioned for review of the denial of the 212h waiver.
As our readers may be aware of, the definition of what constitutes a "conviction" under immigration law is not the same as the definition under criminal law. We will address the differences on a different post. For now, readers should now that a conviction for immigration purposes is defined under 8 U.S.C. section 1101(a)(48)(A).
The term “conviction” means, with respect to an alien, 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
As noted by the Court, this section creates two prongs for finding a conviction. The first prong covers situations in which there has been a "formal judgment of guilt". This circumstance did not occur in this case. The second prong covers deferred adjudications and requires two elements: (i) a sufficient finding of support for a conclusion of guilt, and (ii) the imposition of some form of punishment.
The Court focused its review only on the first requirement of the second prong - whether there was some sufficient finding of guilt to satisfy 8 U.S.C. section 1101(a)(48)(A). The Court held that a plain reading of the statute confirmed that there was not sufficient finding of guilt to satisfy the statutory elements given that in this particular case none of the five sufficient findings were present: there was no finding of guilt by a judge or jury; there was no guilty plea, there was no plea of no contest; and there was no admission by the alien of facts sufficient to find guilt.
The Court focused its review only on the first requirement of the second prong - whether there was some sufficient finding of guilt to satisfy 8 U.S.C. section 1101(a)(48)(A). The Court held that a plain reading of the statute confirmed that there was not sufficient finding of guilt to satisfy the statutory elements given that in this particular case none of the five sufficient findings were present: there was no finding of guilt by a judge or jury; there was no guilty plea, there was no plea of no contest; and there was no admission by the alien of facts sufficient to find guilt.
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