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Pre-trial diversion programs are often used as a tool to avoid a criminal conviction. Whether or not something is a “conviction” depends entirely on the context in which it is asked. For instance, deferred adjudication is generally not a conviction for most purposes under state law, but it can be considered a conviction under federal law or for immigration purposes.
A decision handed down on Sept. 5 by the Department of Justice, Executive Office for Immigration Review Board of Immigration Appeals, serves as a cautionary tale for criminal defense attorneys and individuals charged with offenses under Texas law. In re Mohamed, the Board held that admission into a pretrial diversion program in Texas is a conviction for immigration purposes if the accused admitted sufficient facts to support a finding of guilt and there was some form of restraint on the person’s liberty. (The decision can be found at the end of this article.)
A person can be convicted under federal law even if the adjudication of guilt has been withheld under state law. To determine whether a person was convicted under federal law when the state adjudication has been withheld, there must be 1) an admission of facts sufficient to warrant a finding of guilt and 2) the judge must impose some punishment, penalty, or restraint on the person’s liberty.
The term “conviction” for immigration purposes is defined Section 101(a)(48)(A) of the Immigration and Nationality Act:
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
(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.
To understand whether cases resolved by pre-trial diversion are convictions, we must first look at the types of pre-trial diversion programs in Texas.
Pre-trial diversion takes two major forms:
A typical post-plea diversion program, as the one described in this decision, fulfills both of these elements. As the Board found on appeal, any limitation of a person’s liberty, including reporting once a month, paying costs, and imposing other conditions are sufficient to show some limitation on that person’s liberty.
For example in Tarrant County:
No, it is unlikely that pre-plea diversion will result in a conviction for immigration purposes.
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