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“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 or 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.
Under this criteria, the Board held that the respondent in this case was convicted under the statutory definition because he did originally plead guilty and punishment was ordered by the Idaho state court judge.
The Board found that the language of the statutory definition and its legislative history clearly provide that the BIA and the federal courts are no longer permitted to look to the state rehabilitative statute to determine whether a conviction exists for immigration purposes.
The majority found Congress’ intent to be clear that the “original finding or confession of guilt is sufficient to establish a ‘conviction’ for purposes of the immigration laws.”
The Board went on to find that its decision in Matter of Manrique, Int. Dec. 3250 (BIA 1995), which gave federal first offender treatment to certain drug offenders who had received state rehabilitative treatment, is also superceded by the enactment of INA section 101(a)(48)(A).
After concluding that Matter of Manrique and its predecessors have been superceded by the definition of conviction found at INA section 101(a)(48)(A), the Board found that the respondent was convicted within the meaning of the statute upon his entering of a guilty plea and the imposition of punishment.
The Board further found that the respondent remains convicted for immigration purposes and therefore deportable under INA section 241(a)(2)(B)(i), despite the state court’s rehabilitative action in his criminal case.
In addition, the Board held that the respondent’s conviction bars him from relief from deportation under INA section 212(c). As such, the respondent’s appeal was dismissed. Board Members Villageliu, Schmidt, Rosenberg, and Guendelsberger filed a concurring and dissenting opinion. Board Member Lory Rosenberg also
filed a separate dissent.
Form i 246. Application for a stay of deportation. i-246 - BIA Stay of Removal | Criminal Immigration Lawyer
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