Matter of Ali Mohamed Mohamed
27 I&N Dec. 92(BIA 2017)
Interim Decision #3900
Procedural History. This case is an appeal from an order of an Immigration Judge terminating the proceedings in immigration court upon a finding that an alien’s agreement to participate in pretrial intervention, under Texas Government Code 76.011 and Texas Code of Criminal Procedure 102.012. The Department of Homeland Security appealed the Immigration Judge’s decision to the Board of Immigration Appeal.
Holding: An agreement to participate in a Texas pretrial intervention program in criminal court is a conviction for immigration purposes under Immigration and Nationality Act § 101(a)(48)(A) where the alien admitted under oath to the elements of the offense, entered a stipulation of evidence, and agreed that any violation of the pretrial agreement would automatically result in a conviction.
The alien/defendant was a lawful permanent resident. He was accused by indictment of the offense of possession of a controlled substance. He entered into a pretrial intervention agreement which included community service, multiple fees fee, community service, and a no contact order. DHS initiated removal proceedings against him based on this agreement. The immigration court found that participation in a pretrial agreement did not amount to a conviction under INA § 101(a)(48)(a). DHS appealed the immigration court’s holding to the BIA. The BIA found that the alien’s agreement, including the admission to the elements of the offense, constituted a conviction.
The INA defines convictions as:
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) 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.
INA § 101(a)(48)(A).
The BIA acknowledged that there was no formal judgment of guilt in this matter, then proceeded to analyze whether the pretrial agreement was a withheld adjudication of guilt under INA § 101(a)(48)(A). The BIA found that the alien’s sworn admission of guilt entered as part of the pretrial intervention agreement in this matter satisfied subsection (i). The BIA noted,
After he was sworn and placed under oath, the respondent admitted in the stipulation of evidence that he “committed each and every element alleged and ha[d] no defense in law.” He further admitted that he is “guilty of the offense set out [in the indictment] and all lesser included offenses charged against [him].
While this admission is likely sufficient to have met subsection (i), the BIA found that DHS’s position was further supported by the fact that the alien had “agreed that any violation of the pretrial intervention agreement would automatically result in a conviction based on the admission of guilt in the stipulation of evidence.”
As to the second prong of INA §101(48)(A), the BIA found that the costs, conditions, and restrictions agreed to in exchange for the prosecutor’s dismissal to have been ordered by the judge. In making this determination, the BIA found that language authorizing the imposition of pretrial fees vested the authority to impose those fees with the trial court. Tex. Code Crim. Proc. Art. 12.012. The BIA cited Texas Government Code 76.002(a)(1) and Fisher v. State, 832 S.W.2d 641,643 (Tex. App. – Corpus Christi, no pet. 1992) for the proposition that “a defendant could only enter into a pretrial intervention agreement, and therefore a pretrial intervention program, with the court’s authorization.”
The BIA concluded “[b]ecause only a judge can authorize a pretrial intervention agreement, which in this case included community supervision and community service, restitution, and a no-contact order in addition to the imposition of fees, we conclude that the respondent’s admission into a pretrial intervention program under Texas law is a “form of punishment, penalty, or restraint on the alien’s liberty” that was “ordered” by a judge.”
See the full opinion here: https://www.justice.gov/eoir/page/file/994641/download
“if an individual pleads guilty or nolo contendere, or admits sufficient facts to support a guilty finding, but the court defers entry of the judgment to allow the individual to complete a period of probation or a diversion program, the individual has been convicted for TPS purposes even if the charge is ultimately dismissed.
Some states, however, have pretrial diversion programs where the individual may enter into a counseling or treatment program and potentially avoid criminal prosecution. If the charges are dismissed following successful completion of a pretrial diversion program which occurred prior to a pleading or finding of guilt, the individual is not considered convicted for TPS purposes.”
MATTER OF N-R-R- APPEAL OF VERMONT SERVICE CENTER DECISION APPLICATION: FORM I-821, APPLICATION FOR TEMPORARY PROTECTED STATUS
“if an individual pleads guilty or nolo contendere, or is found guilty but the court defers entry of the judgment to allow the individual to complete a period of probation or a diversion program, the individual has been convicted for immigration purposes even if the charge is ultimately dismissed.”
MATTER OF J-T- APPEAL OF VERMONT SERVICE CENTER DECISION APPLICATION: FORM I-821, APPLICATION FOR TEMPORARY PROTECTED STATUS,