Juvenile Defender Training  

Suffolk University

Law School

May 21, 2004

Topics-1

Background Issues Who is a citizen? Types of immigration status

Topics-2

Consequences of Juvenile Delinquency Dispositions

Removal Naturalization Noncitizens returning to U.S.

Remedies

Strategies

Who is a Citizen?

Anyone born in U.S. and subject to jurisdiction of U.S. (e.g. not foreign embassy personnel).

Anyone naturalized

Certain technical statuses parent naturalized before kid turns 18 unknown parents found in U.S. under 5

Citizen vs. noncitizen

A citizen does face immigration consequences at all

Any noncitizen can be kicked out of the country or kept out of the country if she or he violates the immigration laws.

Types of Immigration Status

Lawful Permanent Resident (“green card” holder)- A person who is able to live in U.S. indefinitely unless she or he falls under a ground of deportability

Types of Immigration Status

Undocumented person could have come in with a visa or never had a visa

Asylee- A noncitizen with a “well-founded fear of persecution” who gets status in U.S. Refugee- A noncitizen with a well-founded fear of persecution who gets status outside of U.S. applies outside of U.S.

Types of Consequences

Getting kicked out of U.S. (look to grounds of deportability (8 U.S.C. § 1227)

Being unable to return to U.S. (look to grounds of inadmissibility (8 U.S.C. § 1182)

Making it more difficult to naturalize

Excludability vs. Deportability

The grounds of deportability include convictions for: controlled substances firearms crimes of moral turpitude aggravated felonies

Excludability vs. Deportability

The grounds of inadmissibility include convictions for: controlled substances crimes of moral turpitude

Excludability vs. Deportability

Even without a conviction a noncitizen may come under the grounds of inadmissibility

Excludability vs. Deportability

The grounds of inadmissibility apply if a noncitizen admits committing a drug crime or

a crime involving moral turpitude there is a “reason to believe” that a noncitizen

is a drug trafficker

Juvenile Delinquency Disposition

There is a federal definition of conviction for immigration purposes (8 U.S.C. § 1101(a)(48)

An adjudication of delinquency is not a conviction for immigration purposes Matter of Devison, 22 I&N Dec 1362 (BIA 2000)

Consequences of Delinquency Adjudication

A noncitizen adjudicated delinquent does not come under the grounds of deportability for drugs, moral turpitude, aggravated felonies or firearms because she or he does not have a conviction

Consequences of Delinquency Adjudication

A noncitizen cannot be inadmissible for admitting to a crime for which she or he would face mandatory juvenile treatment under federal law. Matter of M-U-, 2 I. & N. Dec. 92 (BIA 1944) Even an adult cannot admit essential elements of controlled substance or moral turpitude offense if the conduct required mandatory delinquency treatment

Consequences of Delinquency Adjudication

The government can use the reason to believe ground of inadmissibility to keep out a noncitizen who has a delinquency adjudication for drug distribution

Consequences of Delinquency Adjudication

In the naturalization context, an examiner can consider the conduct that lead to a juvenile delinquency adjudication to determine whether applicant is a person of good moral character.

Legal Strategies

Avoid transfer to adult court because a disposition in adult court is a conviction

Avoid a delinquency adjudication where underlying conduct involves controlled substances because it could result in “reason to believe” inadmissibility

Legal Strategies

Check Federal Juvenile Delinquency Act (18 USC § 5032) for offenses that require mandatory juvenile treatment to avoid controlled substance or or moral turpitude inadmissibility

Plead to adjudications of delinquency for crimes that require mandatory juvenile treatment under federal law to avoid possible future inadmissibility for admitting a crime