In re Devison-Charles
| Decision Date | 18 January 2001 |
| Docket Number | Interim Decision No. 3435.,File A45 382 757. |
| Citation | 22 I&N Dec. 1362 |
| Parties | In re Miguel DEVISON-Charles, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated September 28, 1999, an Immigration Judge found the respondent subject to removal pursuant to section 237(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(B)(i) (Supp. IV 1998), as an alien convicted of a controlled substance violation, found him ineligible for relief from removal, and ordered him removed from the United States to the Dominican Republic. The respondent has appealed from that decision. The appeal will be sustained and the removal proceedings will be terminated.
The respondent, a native and citizen of the Dominican Republic, was admitted to the United States on or about April 29, 1996, as a lawful permanent resident. On January 13, 1999, the Immigration and Naturalization Service issued a Notice to Appear (Form I-862) alleging that the respondent had been convicted of attempted criminal possession of a controlled substance in the third degree, in violation of sections 110 and 220.16 of the New York Penal Law. The respondent denied both the allegation that he had been convicted and the charge of removability. He requested that the charges against him be dismissed and that the proceedings be terminated.
The respondent asserted that he was a youthful offender rather than a convicted criminal. He submitted certified court records to establish that he was adjudicated a youthful offender under Article 720 of the New York Criminal Procedure Law.3 The records reflect that on August 20, 1992, the respondent pled guilty to attempted possession of a controlled substance in the third degree. At the time of sentencing on October 6, 1992, the respondent was adjudicated a youthful offender in the Supreme Court of New York, County of New York, and was sentenced to 5 years' probation.4
The respondent also submitted a court record entitled "Sentence and Commitment," revealing that on October 13, 1998, after pleading guilty to violating his probation by failing to report to his probation officer, he was resentenced to a 1-year term of imprisonment.5 In addition, the respondent submitted a record dated April 21, 1999, from the Supreme Court, New York County, certifying the following [I]t appears from an examination of the Records on file in this office, that [o]n 10/6/92 the above named Defendant was adjudicated a Youthful Offender. Further that upon that adjudication, the Defendant was sentenced by the Hon. Franklin Weissberg, a Justice of the Supreme Court to 5 years probation. On 10/15/98 probation was terminated unfavorably & Defendant was resentenced to 1 year NYC Dept of Corrections by the Hon. Renee White.6
The Service, relying on the same certified court records, asserted that the respondent was ineligible for youthful offender treatment when he was resentenced in October 1998 because he was 25 years old and had already been adjudicated a youthful offender following a felony conviction. The Service noted that, in resentencing the respondent, the court did not indicate that he was adjudicated a youthful offender. Thus, the Service argued that the respondent's October 13, 1998, resentencing constituted a conviction for attempted criminal possession of a controlled substance in the third degree.
Based on the court records provided, the Immigration Judge found the respondent removable as charged. The Immigration Judge accepted the Service's argument that the respondent was ineligible for youthful offender treatment in October 1998, because he had already been adjudicated a youthful offender following a felony conviction. The Immigration Judge found further that the definition of the term "conviction" at section 101(a)(48)(A) of the Act, 8 U.S.C. § 1101(a)(48)(A) (Supp. IV 1998), gives no effect to state rehabilitative statutes such as the New York youthful offender statute at issue in this case. See Matter of Roldan, 22 I&N Dec. 512 (BIA 1999).7 Thus, he concluded that the respondent's October 13, 1998, resentencing constituted a conviction within the meaning of section 101(a)(48)(A) of the Act.
We must decide whether either the respondent's 1992 youthful offender adjudication or his 1998 probation violation and resentencing constitutes a conviction for immigration purposes. This determination requires us (1) to reevaluate our prior decisions, such as Matter of De La Nues, 18 I&N Dec. 140 (BIA 1981) (), and Matter of Ramirez-Rivero, 18 I&N Dec. 135 (BIA 1981) (same); (2) to determine whether the New York procedures at issue comport with the federal standard of juvenile delinquency set forth in the Federal Juvenile Delinquency Act, 18 U.S.C. §§ 5031-5042 (1994 & Supp. II 1996) ("FJDA"); and (3) to decide whether our precedents survive the enactment of the statutory definition of the term "conviction" by section 322(a)(1) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-628 ("IIRIRA").
We begin our analysis with the unstated assumption by the parties in this case that the respondent's October 6, 1992, youthful offender adjudication, by itself, does not constitute a conviction for immigration purposes. The Service has not alleged that the respondent's youthful offender adjudication constituted a conviction for a controlled substance violation, thus rendering him subject to removal under section 237(a)(2)(B)(i) of the Act. Nor did the Immigration Judge make such a finding. Although we agree that the respondent's 1992 youthful offender adjudication does not constitute a conviction for immigration purposes, we consider it appropriate to articulate our reasons for so finding, particularly in light of the recently enacted statutory definition of "conviction" at section 101(a)(48)(A) of the Act.
We have consistently held that juvenile delinquency proceedings are not criminal proceedings, that acts of juvenile delinquency are not crimes, and that findings of juvenile delinquency are not convictions for immigration purposes. See, e.g., Matter of De La Nues, supra (); Matter of Ramirez-Rivero, supra (same); Matter of C-M-, 5 I&N Dec. 327, 329 (BIA 1953) (); Matter of F-, 4 I&N Dec. 726 (BIA 1952) (); Matter of A-, 3 I&N Dec. 368, 371 (BIA 1948) (); Matter of O'N-, 2 I&N Dec. 319 (BIA, A.G. 1945) (); Matter of M-U-, 2 I&N Dec. 92 (BIA 1944) ().
We have also held that the standards established by Congress, as embodied in the FJDA, govern whether an offense is to be considered an act of delinquency or a crime. See Matter of De La Nues, supra. See generally Matter of Rodriguez-Rodriguez, 22 I&N Dec. 991 (BIA 1999) (). The FJDA makes it clear that a juvenile delinquency proceeding results in the adjudication of a status rather than conviction for a crime. See 18 U.S.C. §§ 5031-5032. We concur with the established view that juvenile delinquency adjudications are not criminal proceedings, but are adjudications that are civil in nature, wherein the applicable due process standard is fundamental fairness.8 See McKeiver v. Pennsylvania, 403 U.S. 528, 541 (1971); In re Winship, 397 U.S. 358, 365-66 (1970); In re Gault, 387 U.S. 1, 17 (1967).
We find that the New York youthful offender adjudication procedures set forth in Article 720 of the New York Criminal Procedure Law are similar in nature and purpose to the juvenile delinquency provisions contained in the FJDA. Section 720.35(1) of the New York Criminal Procedure Law specifically states that a youthful offender adjudication is not a judgment of conviction for a crime or any other offense. Under the New York statute, the court first determines whether a youth (a person charged with a crime alleged to have been committed when he was at least 16 years...
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Cooke v. Attorney Gen. of U.S., 13-3975
...as defined in 8 U.S.C. §1101(a)(48)(A), and that the BIA's conclusion to the contrary conflicts with its decision in In re Devison-Charles, 22 I. & N. Dec. 1362 (BIA 2000). In Devison-Charles, the BIA held that a youthful offender adjudication under New York law does not constitute a convic......