Some Pre-Trial Diversion Programs Are Convictions for Immigration

Will Diversions Lead to Deportation?

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.)

What is a Conviction for Immigration Purposes?

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.

Does Pre-Trial Diversion Result in a Conviction for Immigration Purposes?

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 in Texas

Pre-trial diversion takes two major forms:

• A pre-plea diversion that takes place through the District Attorney’s Office.
• A post-plea diversion program that is run through the court and the probation department under Government Code 76.011.

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.

Examples of Pre-Plea vs. Post-Plea Diversion Programs

For example in Tarrant County:

Tarrant County Pre-Plea Diversion

DPP

Tarrant County Post-Plea Diversion

FAIP
FODP
Veteran’s Court
DIRECT
Mental Health Diversion
SWIFT

Do All Pre-Trial Diversions End in Convictions for Immigration Purposes?

No, it is unlikely that pre-plea diversion will result in a conviction for immigration purposes.

• First, with a typical pre-plea diversion program, there is no admission that becomes part of the court record.
• Second, and more importantly, a generalized admission of guilt that is not tied to specific facts cannot be used. (See Footnote 6: Where entry into pre-trial diversion based on a general acceptance of responsibility for behavior with no reference to underlying facts, such boilerplate language is not case-specific and cannot be sufficient to warrant a finding of guilt.)
• Third, with a pre-plea diversion program, the imposition of conditions comes from the prosecutor and not the judge or community supervision department. Attorneys considering a diversion program for their clients should consider the type of diversion (pre-plea or post-plea), as well as the admissions that must be made for entry into the program.

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