Conviction under Immigration law includes Illinois sentence for "1410 probation" ( July 8, 2003)


Gill v. Ashcroft, (7th Cir.) 2003 WL 21525603. July 8, 2003

Ct. of Appeal lacked jurisdiction to consider appeal of instant removal
order under 8 USC §1227(a)(2)(B)(i) based on existence of alien's prior
Illinois state court conviction for possession of cocaine that was
ultimately dismissed upon alien's successful completion of probation
period; under 8 USC §1101(a)(48)(A), alien's state court proceeding
qualified as "conviction" that precluded alien from applying for
discretionary relief from removal order.

Gill pleaded guilty in an Illinois court to possession of cocaine. He
was sentenced to “410 probation,” 720 ILCS 570/410. Section 410(f)
provides that, if a first offender completes this probation without
incident, “the court shall discharge the person and dismiss the
proceedings against him.” The statute continues: A disposition of
probation is considered to be a conviction for the purposes of imposing
the conditions of probation and for appeal, however, discharge and
dismissal under this Section is not a conviction for purposes of this
Act or for purposes of disqualifications or disabilities imposed by law
upon conviction of a crime. 720 ILCS 570/410(g). Gill did not deny that
“410 probation” was a “conviction” under the text of §1101(a)(48)(A).
The 7th Circuit declined to follow the holding of Lujan- Armendariz,
"which elevated an abandoned administrative practice over a statutory
text." 222 F.3d 728 (9th Cir. 2000).

The term "conviction" under Immigration law:
* * *
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. * * * (8 U.S.C. 101(a)(48)(A)

Two principal problems: How to classify diversionary dispositions such
as “410 probation” that impose some restraint on liberty but withhold
formal adjudication of guilt; second, how to classify convictions later
expunged or covered by some other device for restoring the person’s
civil rights. In Matter of Roldan, 22 I&N Dec. 512 (BIA 1999), the Board
held that the criteria of §1101(a)(48)(A) apply to all offenders, no
matter how they would have been treated if they had been charged in
federal court. The 7th Circuit adopted the Board’s "straightforward"
application of §1101(a)(48)(A), which abolished, for purposes of
immigration law, any distinction between the treatment of deferred
dispositions in first and successive drug-possession offenses. The Board
has declined to acquiesce in Lujan-Armendariz and will not apply it
outside the ninth circuit.

In Gill, the Seventh Circuit determined that the definition of
conviction under federal immigration law, not the Illinois First
Offender standard, controls. The 7th Circuit determined that an
administrative appellate tribunal, namely, the Board of Immigration
Appeals, had the authority to conclude that its uniform interpretation
of what constitutes a "conviction" under federal law was dispositive,
regardless of what states may say to the contrary (Matter of Roldan , 22
I&N Dec. 512 (BIA, 1999).

http://www.usdoj.gov/eoir/efoia/bia/Decisions/Revdec/pdfDEC/3377.pdf

Another court has looked at this differently (Lujan-Armendariz v.
Immigration & Naturalization Service, 222 F.3d 728 (9th Cir. 2000). In
the latter decision, the Circuit Court of Appeals found that state
equivalents to the Federal First Offender Act (like 410 probation) in
regard to first time simple drug possession charges if expunged, may not
be used as convictions under the Immigration and Nationality Act to
establish inadmissibility or deportability. The Ninth Circuit also
extended this rule to foreign equivalents to the First Offender Act
(Dillingham v. Immigration & Naturalization Service, 267 F.3d 996 (9th
Cir. 2001). Unfortunately, the Ninth Circuit's decision does not apply
in Illinois, Indiana or Wisconsin. And, there is more. Under certain
circumstances, a misdemeanor conviction under state law may amount to
what is known as an "aggravated felony" (8 U.S.C. 1227(a)(2)(A)(iii)
under federal immigration law (Guerrero-Perez v. INS, (7th Cir. 2001)
242 F.3d 727, rehearing den.(7th Cir. 2001) 256 F.3d 546). What this
means is that certain misdemeanor convictions, like the First Offender
conviction, can result in the removal from the United States of a lawful
permanent resident or undocumented alien. (For example, Criminal Sexual
Abuse, 720 ILCS 5/12-15(c) is a Class A misdemeanor. It is also an
aggravated felony under federal immigration law. Since aliens who have
committed aggravated felonies are unable as a matter of law to obtain
cancellation of their removal hearings upon a conviction for such a
crime, they may be deported). (Guerrero-Perez).

Gill v. Ashcroft, (7th Cir.) 2003 WL 21525603. July 8, 2003: Download PDF: http://callyourlawyers.com/pdfcaselaw/gil.pdf

Posted: Sun - September 28, 2003 at 03:54 PM        

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