Can My Charges be Diverted if I’m an Immigrant

Pretrial and judicial diversion are two great criminal justice programs offered in the state of Tennessee wherein first-time offenders can avoid serving time or having a conviction on their record. Check out our blog fromCan My Charges be Diverted if I'm an Immigrant 2020 to learn about diversions in depth. Diversion is a path through which your charges may be dismissed after the successful completion of a probationary period. If you are eligible for diversion, your attorney will first come to an agreement with the prosecution to settle your case through the program. Then, the judge must approve the diversion in court, sometimes requiring your attorney to demonstrate your fitness for the program at an eligibility hearing. After the judge agrees to place you under diversion, you must complete all requirements ordered by the court and stay out of trouble before your final court date. So long as you fulfill your end of the diversion agreement, your charges may be dismissed at the end of the probationary period.

The problem we’re going to discuss today is the consequences of Tennessee’s diversion programs on an immigrant’s status in the United States. While a U.S. citizen entering a diversion is not considered to be adjudicated guilty unless they violate the terms of the diversion and are then convicted of the charges under diversion, immigrants are accountable to different standards. Under the Immigration and Nationality Act, section 101(a)(48)(A), an immigrant does not have to be formally convicted in order to be considered to have a conviction on their record:

The term “conviction” means, with respect to a[n] [immigrant], a formal judgment of guilt of the [immigrant] entered by a court, or, if adjudication of guilt has been withheld, where –

i) a judge or jury has found the [immigrant] guilty or the [immigrant] has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and [emphasis added]

ii) the judge has ordered some form of punishment, penalty, or restraint on the [immigrant’s] liberty to be imposed.

What this means is that if an immigrant is found guilty, enters a guilty plea, or admits facts sufficient to establish guilt, and the judge orders a punishment, they are considered to be convicted under immigration law.

This introduces some concerns when it comes to the diversion program. Pursuing a judicial diversion in the state of Tennessee, qualified defendants must enter a conditional guilty plea to defer further proceedings in their case while they complete the probationary period. Because that defendant has both plead guilty and been placed on probation (i.e., a punishment and a restraint on their liberty) by the judge, they are considered to be convicted under INA § 101(a)(48)(A).

A better option for immigrants facing criminal charges in Tennessee is the pretrial diversion program. Eligibility for pretrial diversion, unlike judicial diversion, is not predicated upon a guilty plea, or otherwise a finding of guilt. In a pretrial diversion, the prosecution agrees to suspend the general prosecution of an eligible defendant’s case for a specified length of time while the defendant completes requirements ordered by the court. If you fail to complete the diversion successfully, the prosecution of your case will resume. But if you make it through the period of your pretrial diversion, the charges against you will be dismissed. Since there is no finding or plea of guilt prerequisite to a pretrial diversion, this program does not count as a conviction under immigration law.

However, pretrial diversion can be harder to obtain than judicial diversion. For starters, the pretrial diversion program cannot be used for felony charges and a handful of misdemeanors, including driving under the influence and domestic assault. In addition, prosecutors may be less inclined to enter into pretrial diversion agreements because the conditional guilty-plea of the judicial diversion offers assurance that a defendant will be formally convicted if they violate the diversion’s terms. You’ll need a criminal defense attorney that has experience advocating for pretrial diversion and a good rapport with the prosecutor in order to explore pretrial diversion as an option for settling your case.

If you’re facing criminal charges and are concerned about your immigration status, reach out to Best & Brock for a FREE consultation. We will gladly walk you through your options and fight hard to find an agreeable solution to your case. Fill out our online contact form or give us a call at 423-829-1043 today!

For more information, please visit the Immigrant Legal Resource Center website.