Interim Decision #3096 

MATTER OF MIn Adjustment of Status Proceedings 

Designated by Commissioner January 31, 1989 

(1) A conviction exists purstmnt to section 245A(aX4XB) of the Immigration and Nationality Act, § 1255a(aX4XB) (1988), where (1) a judge or a jury has found 

the alien guilty or the alien has entered a plea of guilty or nolo contendere, and 

(2) the judge has ordered some form of punishment or penalty, including but not 

limited to a fine or probation. 

(2) An alien who pled guilty to a felony and, as a result, was fined $1,000 and placed 

on probation for 8 years is on alien who has been convicted of a felony within the 

purview of section 245A(aX4)(B) of the Act. 

ON BEHALF OF APPLICANT: Jeff Larsen, Esquire 

210 Barton Springs Road, Suite 300 

Austin, Texas 78704 

This is an appeal from the district director's decision finding the 

applicant ineligible for temporary resident status under section 

245A of the Immigration and Nationality Act, 8 U.S.C. § 1255A 

(Supp. IV 1986). The appeal will be dismissed. 

The applicant is a single 23-year-old male who is a native and 

citizen of Mexico. He claims he entered the United States without 

inspection on August 1, 1981. On February 2, 1988, a judge of the 

District Court of Travis County, Texas, found the applicant guilty 

of the offense of forgery, a third degree felony. However, on. February 17, 1988, the judge deferred "further proceedings without entering an adjudication of guilt pursuant to Article 42.12, Section 3(d) 

of the Code of Criminal Procedure," assessed a $1,000 fine, and 

placed the applicant on. probation for 3 years. 

On the basis of the court's order, the district director found the 

applicant ineligible for temporary resident status on the ground he 

had been convicted of a felony. Additionally, he found such an offense to be a crime involving moral turpitude, thereby rendering 

the applicant excludable under section 212(a)(9) of the Act, 8 U.S.C. 

§ 1182(aX9) (1988). The district director did not rule as to whether 

the applicant had otherwise met the other statutory eligibility requirements. 
Interim Decision #3096 

On appeal, counsel for the applicant raises four arguments. First, 

he claims that the district director erred in deciding the case without stating the legal reasoning. I Second, he argues that if the director relied on Matter of Ozkok, 19 I&N Dec. 546 (BIA 1988), and if 

the Legalisation Appeals Unit ("LAU") adopted Ozkok, a deferred 

adjudication is not a final conviction. Third, he urges the Service to 

construe the term "conviction" in the light of congressional intent 

and not on the Board's subsequent evaluation of policy considerations. Finally he argues that even if there had been a "conviction," the applicant is not excludable under section 212(aX9) of the 

Act because there has been no sentence of confinement. 

WHAT IS A CONVICTION FOR THE PURPOSE 

OF SECTION 245A(a)(4)(B) OF THE ACT? 

Section 245A(a)(4)(B) of the Act makes ineligible for temporary 

resident status any alien "convicted of a single felony or three misdemeanors committed in the United States." (Emphasis added.) The 

definition contain two elements which must be satisfied in order 

to find an applicant statutorily ineligible for temporary resident 

status. The crime committed by the applicant must be a felony or 

three misdemeanors, and the applicant must have been "convicted" 

of those crimes. 

The Service has defined the term "felony" as a "crime committed 

in the United States, punishable by imprisonment for a term of 

more than one year, regardless of the term such alien actually 

served. . . ." 53 Fed. Reg. 9862, 9864 (1988) amending 8 C.F.R. 

§245a.1(p) (1988). The applicant does not dispute here that the 

crime he committed is a felony pursuant to the foregoing regulation. Rather the focus of his challenge is on the meaning of the 

first element, the term "convicted." 

The term "convicted" in section 245A(a)(4)(B) of the Act is not defined either by the statute or the implementing Service regulations. In construing this term, we are guided by several considerations. 

First, although Congress did not define the term "convicted," section 245A(a)(4)(B) of the Act and its legislative history indicate Congress' concerns about legalizing aliens who have committed crimes. 

I Counsel, however, does not suggest that the director's failure to state the reasoning frir denial should result in a reversal or remand. To the extent that the issues 

raised on appeal are a matter of law, not facts, a remand is not necessary. Service 

regulations provide that "(w]henever a formal application or petition . . . is denied, 

the applicant will be given written notice setting forth the specific reasons for the 

denial" 8 CYR. §102.3(a)(1) (1988) (emphasis added). 

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Interim Decision #3096 

These concerns are reflected in the criminal grounds of statutory 

ineligibility set forth in section 245A(a)(4)(B) of the Act, an additional provision to the already existing criminal grounds of excludability under section 212(a) of the Act. Thus, Congress established 

two statutory bases aimed at excluding criminal aliens from obtaining benefits under section 245A of the Act. Moreover, while Congress provided for the waiver of certain grounds of excludability, 

Congress also stated that "grounds of exclusion relating to violations of the law or engaging in persecution of others may never be 

waived." H.R. Rep. No. 682, 99th Cong., 2d Sess. 72 reprinted in 

1986 U.S. Code Cong. & Ad. News 5649, 5676. Congress therefore 

did not in section 245A of the Act provide waivers of grounds for 

exclusion under sections 212(a) (9) and (10) of the Act. Section 

245A(d)(2)(B)(ii)(I) of the Act. 

Therefore, while on one hand Congress intended the Service to 

implement the legalization program in a liberal and generous fashion and to incorporate flexibility into the standards for legalization 

eligibility, Matter of C-, 19 I&N Dec. 808 (Comm 1988), Congress 

clearly intended that aliens who had not abided by laws of the 

United States, other than certain civil immigration violations, 

would not be permitted to benefit from the legalization program. 

Secondly, we must consider the implication of Congress' use of 

the term "convicted" under section 245A(aX4)(13) of the Act in light 

of the use of the same term in other provisions of the Act. Counsel 

points out that when Congress used the terra "conviction" in section 245A of the Act, there was a long history of jurisprudence defining the term "conviction" for immigration purposes. Unfortunately, the "long history of jurisprudence" has not always been 

clear due mainly to evolving concepts of "conviction" under state 

law. As the Board recently stated, "The question of what state 

action constitutes a conviction with sufficient finality for purposes 

of the immigration laws is one with which the Board has wrestled 

for many years." Matter of Ozkok, supra, at 548-49. The Board acknowledged that "the standard which [it has] applied to the many 

variations in state procedure may permit anomalous and unfair resuits in determining which aliens are considered convicted for immigration purposes." Id. at 550. The Board further noted that, in 

its previous approach, form had been placed over substance "and 

aliens who are clearly guilty of criminal behavior and whom Congress intended to be considered 'convicted' have been permitted to 

escape the immigration consequences normally attendant upon a 

conviction." Id. at 551. 

A review of the case law existing at the time Congress passed 

section 245A of the Act discloses that there was no catch-all defini- 
Interim Decision #3096 

tion of the term "conviction." Rather, the Board reviewed on a 

case-by-case basis actions taken by state courts, particularly actions 

ameliorating the con.sequence of a conviction, to determine whether a conviction existed for immigration purposes. See Matter of 

Ozkok, supra, and cases cited therein. More significantly, the Board 

has interpreted the term "convicted" within the context of deportation and exclusion proceedings which are substantively different 

from those before the LAU where aliens seek benefits under section 245A of the Act. 

Finally, we note the Service's regulation defming the term "conviction." The Service has determined that a "conviction" exists for 

purposes of initiating deportation proceedings when the following 

elements are presented: 

(1) There has been a judicial finding of guilt; 

(2) All judicial appeals have been waived, exhausted, or the appeal period has 

lapsed; and 

(8) The action taken by the court results in a finding which is considered a conviction under the laws of the Federal, State or local government for at least some 

purpose. 

8 C.F.R. § 242.2(g) (1988). 

We are thus confronted not with a body of existing law that has 

always been clear, but with a body of law that has been evolving; 

with the regulations by the Service defining the term "conviction" 

for purposes of commencing deportation proceedings; and, with a 

legislative history indicating Congress' intent to exclude aliens convicted of crimes from benefitting under section 245A of the Act. 

The foregoing considerations must be viewed from the perspective of the role the LAU has been assigned under section 245A of 

the Act. Congress directed the Attorney General to establish a 

single level of adrrii isitrative appellate review of determinations 

under section 245A of the Act. The Service established the LAU 

pursuant to this statutory mandate. In so doing, the Service ensured that the determinations made by the LAU are separate and 

apart from those determinations made by either the Board or the 

Administrative Appeals Unit ("AAU"). See 52 Fed. Reg. 16,190 

(1987) ("Although the Administrative Appeals Unit will be the 

Service's designated appellate review authority, a separate branch 

within the Administrative Appeals Unit has been established to 

handle appeals under sections 210 and 245A of the Act.") 

Consequently, the LAU's interpretations of section 245A of the 

Act and the implementing regulations may not always reflect interpretations made by either the Board or the AAU. However, to 

the extent that whatever issue the LAU may decide is only within 

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Interim Decision #3096 

the context of section 245A of the Act, future conflicts of interpretation among the LAU, AAU, and the Board may be avoided. 

We find, after reviewing the pertinent case law, that when this 

section was enacted, there was no universal definition of the term 

"conviction" for immigration purposes. Consequently, with no pardenier definition in mind, Congress left it up to the Service to 

define the terra. Our finding is fortified by the fact that section 

245A(a)(4)(B) of the Act is an entirely new statutory provision. This 

provision is unlike other provisions aimed at excluding criminal 

aliens based on the nature of the crime they committed, such as 

section 212(aX9) of the Act (crimes involving moral turpitude), or 

the type of crime, such as section 212(a)(23) of the Act (crimes relating to a controlled substance). The net cast by this new provision is 

broader than existing provisions under section 212(a) of the Act. 

The only limitation is that the crimes must have been committed 

in the United States. Consequently, we find nothing to suggest that 

Congress intended to limit the scope or coverage of section 

245A(a)(4)(B) of the Act. 

In interpreting a federal statute, the Supreme Court has held 

that whether a conviction exists is a question of federal, not state 

law. "This makes for desirable national uniformity unaffected by 

varying state laws, procedures, and definitions of 'convictions.' " 

Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 112 (1983). 

The Court noted that in some circumstances a plea of guilty alone 

is enough to constitute a "conviction." However, the Court held 

that for purposes of the federal gun control laws, a plea of guilty to 

a disqualifying crime and its notation by a state court, followed by 

a sentence of probation, is equivalent to being "convicted" within 

the language of 18 U.S.C. § 922 (g) and (h) (1988). (Provision makes 

it unlawful for any person to receive, among other matters, any 

firearm if the person "has been convicted in any court of, a crime 

punishable by imprisonment for a term exceeding one year.") 

Accordingly, in the light of the legislative history of section 245A 

of the Act, existing administrative case law, Service regulations, 

and the reasoning of the Supreme Court in Dickerson v. New 

Banner Institute, Inc., supra, as a general rule a conviction will be 

found for purposes of section 245A(a)(4)(B) of the Act where these 

two elements are found: 

(1) a judge or jury has found the alien guilty or he has entered a plea of guilty or 

nolo contendere; and 

(2) the judge has ordered some form of punishment or penalty, including but not 

limited to a fine or probation. 
Interim Decision #3096 

We are aware that this standard may be more severe than the 

standard imposed by the Board in Matter of Ozkok, supra. 2 However, we have stated the standard as a general rule, and we do not 

determine here whether expungements or other judicial acts may 

not be an exception to this rule. 

HAS THE APPLICANT BEEN CONVICTED UNDER SECTION 

245A(a)(4)(B) OF THE ACT? 

On February 2, 1988, the applicant pled guilty to a third degree 

felony- However, the court issued an order deferring further proceedings against the applicant, fined him $1,000, and placed him on 

probation for 3 years. A copy of the court's order is in the record 

before us. Applying our standard we find that the applicant pled 

guilty and that the court imposed upon him two types of punishment, a fine and probation. If the court had not found him guilty, 

certainly the court would not have imposed a fine or placed the applicant on probation. 

Consequently, we find that, pursuant to section 245A(a)(4)(B) of 

the Act, the applicant has been convicted of a felony and is therefore statutorily ineligible for temporary resident status under section 245A of the Act. 

We need not determine whether the applicant is inadmissible 

pursuant to section 212(a)(9) of the Act or whether the applicant 

has otherwise met all the eligibility criteria under section 245A of 

the Act. 

ORDER: The appeal is dismissed. This decision constitutes a 

final notice of ineligibility. 

z To the extent that under the third prong of the standard enunciated in Ozkok, 

the Board will necessarily refer to the state law in question, it would be premature 

to predict whether the Board's standard will practically be much different from the 

standard we have set forth in this decision. 

866