Immigration law is generally defined by federal law, but many times a relevant state law must be considered under the rules denied by federal law to determine immigration consequences. This can lead to confusion and frustration, when state laws do not match federal law rules. One such example, is the definition of conviction. Certain criminal convictions can carry immigration consequences, but, in Maryland, there are criminal dispositions other than just a simple “guilty” or “not guilty” . For example, such outcomes “probation before judgment”, a “nol pros”, or a “stet”, are common, but whether they count as convictions for immigration purposes may not be as clear.

Definition of Conviction under Immigration Law

For immigration law purposes, two elements must be met for a court disposition to be considered a conviction. First, there must be some finding or admission of guilty, either by the judge or the defendant. Second, there must be some form of punishment or restraint of liberty imposed by the judge. Fines, probation, restition, and jail time (even if it is a suspended sentence or time credited) all count as punishment.

Not Guilty

It goes without saying, but a finding of not guilty either by a judge or a jury is not a conviction under either Maryland or Immigration law.

Nolle Pros

What is commonly referred to as a “nolle pros” is short hand for nolle prosequi, essentially meaning ‘do not prosecute’. This means that the state has decided not to prosecute the charges and the case is officially closed. This is not a conviction under immigration law because there has not been any finding or admission of guilt or punishment imposed.

Stet

What is commonly referred to as a “stet”, under Maryland law is the prosecution’s decision to place a case on what is called “stet docket”. This means that the government has decided not to prosecute the case at this time, but instead is indefinitely postponing your case. However, they are also reserving the right to prosecute you in the future if they want to. While it is not the same as a not guilty finding or nolle pros, it is not a conviction under immigration law because there has not been any finding or admission of guilt or punishment imposed.

Probation before judgment

Also known as a PBJ, a probation before judgment is when the defendant either pleads guilty or nolo contendere, or is found guilty by a judge or jury, and the judge defers judgment to allow the defendant to complete a probation. Therefore, because there is a finding a guilty and probation is considered a punishment, a PBJ is considered a conviction under immigration law.

Guilty

A finding or plea of guilty is almost always a conviction for immigration purposes. The only time that it would not be a conviction, is if absolutely no punishment has been imposed. Court costs do not count as a punishment, but any probation (whether supervised or unsupervised), fine (even if only $1), or sentence (even if not a single day is served) is considered a punishment.

Judgment Vacated

Vacating a judgment is often the only option an immigrant may have to avoid the consequences of a conviction. However, often times after a judgment is vacated, the government may still choose to retry the case. Depending on the grounds for the order to vacate, the state may still be able to retry and reconvict the defendant, and therefore may also face an even greater sentence.

Expungement

An expungement is when the court orders that all records related to the conviction be destroyed, and for all intents and purposes the case does not exist. Unfortunately, an expungement does not erase the conviction for immigration purposes. If the disposition of the case would have counted as a conviction prior to expungement, it is still considered a conviction after expugement. In fact, failing to divulge an arrest or conviction that has since been expunged, even if it did not carry immigration consequences in the first place, could result in an accusation of fraud. In addition, when it comes times to apply for an immigration benefit, a problem may arise because of the inability to prove that the case does not constitute a conviction that carries immigration consequences. You should always talk to an immigration attorney prior to having any charges expunged if you are an immigrant.
This is a very brief (though it may not seem like it) overview of convictions for immigration purposes. There are many other factors to consider when an immigrant is facing a possible conviction, including the length of a sentence, whether the immigrant is a juvenile, the statute (or statute section) the immigrant is being convicted under, the facts he or she admits to on the record, and how a plea is entered, just to name a few. The defendant’s specific immigration status and prior record must also be considered. For these reasons, we recommend you contact us at (410)268-5070 to discuss the particular circumstances of your case before agreeing to any plea agreement, appearing for sentencing, or representing an immigrant in a criminal proceeding.