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 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 by the Department of Justice, Executive Office for Immigration Board of Immigration Appeals serves as a cautionary tale for criminal defense attorneys and individuals charged with offenses under Texas law. The Board in In re Mohamed held that admission into pretrial diversion in Texas is a conviction for immigration purposes where the accused admitted sufficient facts to support a finding of guilt and there was some form of restraint on the person’s liberty.

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 in 101(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

(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 diversions programs in Texas.

Pre-Trial Diversion in Texas

Pre-trial diversion takes two major forms.

  1. A pre-plea diversion that takes place through the District Attorney’s Office.
  2. 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, a 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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