Introduction: Iqbal v. Bryson, 604 F.Supp.2d 822 (E.D. Va. 2009)

On January 26, 2009, Judge Raymond A. Jackson of the United States District Court for the Eastern District of Virginia issued a published decision in Iqbal v. Bryson, 604 F.Supp.2d 822 (E.D. Va. 2009) [PDF version]. In the decision, Judge Jackson held that deferred adjudication under New York law was not a “conviction” for immigration purposes as defined in section 101(a)(48)(A) of the Immigration and Nationality Act (INA). The decision took on added significance after the Board of Immigration Appeals (BIA) addressed it in a footnote to its decision in Matter of Mohamed, 27 I&N Dec. 92, 97 & n.6 (BIA 2017) [see article]. In Matter of Mohamed, the Board determined that a pretrial intervention agreement under Texas law did constitute a “conviction” for immigration purposes, but the Board carefully distinguished the Texas provision at issue in that case from the New York provision addressed in Iqbal.

In this article, we will examine the Iqbal decision and how it has been cited by both the Board in Matter of Mohamed and by the United States Court of Appeals for the Fourth Circuit in the precedent decision Boggala v. Sessions, 866 F.3d 563, 568 (4th Cir. 2017) [PDF version].

Relevant Statutory Provision

Each of the three cases we will discuss in this article concern the definition of “conviction” for immigration purposes that is found in section 101(a)(48)(A) of the INA. It is important to note that the decisive factor in whether something is a “conviction” under the immigration laws is the definition in the INA, and not the definition of “conviction” in the jurisdiction where the criminal adjudication occurred. Section 101(a)(48)(A) of the INA reads as follows:

  • A. The term “conviction” means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where-
    • i. a judge or jury has found the alien guilty or the alien has entered plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and
    • ii. the judge has ordered some form of punishments, penalty, or restraint on the alien’s liberty to imposed.

(Emphasis added.)

The determination of the existence of a conviction under the first two disjunctive options in section 101(a)(48)(A)(i) is relatively straightforward because they involve cases in which the alien is found guilty or pleads guilty or nolo contendere (no contest) and not cases where there is no such formal finding of guilt or entry of a plea. Each of the three cases under discussion is concerned with the more difficult application of the third disjunctive option in section 101(a)(48)(A)(i) when, in the context of a deferred adjudication or pretrial intervention agreement, an alien merely “admits to sufficient facts to warrant a finding of guilt,” but the alien never enters a plea and is not found guilty of a crime.

Overview of Iqbal v. Bryson

The petitioner was a citizen of Pakistan who was applying for naturalization.

Prior to his application, he had been charged in the United States District Court in violation of section 274(a)(2)(A) of the INA (alien smuggling provision). Note that although this statute is part of the INA, this is a criminal provision rather than a civil immigration provision.

The petitioner signed a Pretrial Diversion Agreement after being charged. Under the agreement, the petitioner was required to accept responsibility for his behavior. Provided he did that and completed the terms of the six-month program, the government would drop the criminal charges.

The United States Citizenship and Immigration Services (USCIS) denied the petitioner’s application for naturalization. It determined that his Pretrial Diversion Agreement constituted a conviction as defined by section 101(a)(48)(A) of the INA, and that this conviction rendered the petitioner unable to establish that he was an alien of good moral character under section 101(f)(6) of the INA. Specifically, the USCIS concluded that his “conviction” was of an aggravated felony under section 101(a)(43)(N) of the INA, which is a permanent bar to the establishment of good moral character.

The question of whether the petitioner had been “convicted” was thus ultimately decisive of whether he would be eligible for naturalization (the District Court agreed that the provision under which the petitioner was charged categorically defined an aggravated felony under section 101(a)(43)(N) of the INA). If the petitioner was indeed “convicted” of the charges within the meaning of section 101(a)(48)(A), his aggravated felony conviction would be a permanent bar to naturalization and potentially subject him to removal proceedings.

The District Court was left to consider whether New York’s Pretrial Diversion Agreement provision constituted a “conviction” for immigration purposes.

The government argued that the petitioner’s having taken responsibility for his actions as part of the Pretrial Diversion Agreement was sufficient for the agreement to fall under section 101(a)(48)(A). The petitioner argued that the “boiler plate language” (quote from the judge) in the Pretrial Diversion Agreement was insufficient to qualify as a “conviction” under section 101(a)(48)(A). Judge Jackson quoted from the Pretrial Diversion Agreement:

Upon your accepting responsibility for your behavior and by your signature on this Agreement, it appearing, after an investigation of the offense, and, your background, that the interest of the United States and your own interest and in the interest of justice will be served by the following procedure…

Judge Jackson noted that the Pretrial Diversion Agreement signed by the petitioner “includes no other reference to the facts underlying the charges.” Accordingly, Judge Jackson concurred with the petitioner’s argument. The following is from his decision:

The mere boilerplate language that appears to be used in all of New York’s’ Pretrial Diversion Agreements is not case specific and thus cannot be deemed to recite specific facts to warrant a finding of guilt. No language in the agreement references the statute allegedly violated or any facts regarding Petitioner’s involvement in the attempted alien smuggling. Nor was there any reference to or attachment of a statement of facts or any other evidence that Petitioner admitted guilt in open court or in any other matter.

The issue noted by Judge Jackson was that section 101(a)(48)(A)(i) of the INA requires that the petitioner have admitted to sufficient facts to warrant a finding of guilt of the provision with which this case is concerned. The Pretrial Intervention Agreement entered into by the petitioner did not involve the petitioner admitting to sufficient facts to warrant a finding of guilt of any crime. Specifically, there was no reference to the statute under which the petitioner was charged or to how the petitioner allegedly violated the statute. There was also no statement in the Agreement that the petitioner had otherwise admitted guilt in any other matter.

Judge Jackson noted that courts had determined that deferred prosecutions in certain other states had been deemed to fall under section 101(a)(48)(A). Specifically, the decision cites to two decisions of the United States Court of Appeals for the Fifth Circuit involving such agreements in Texas:

Madriz-Alvarado v. Ashcroft, 383 F.3d 321 (5th Cir. 2004) [PDF version]; and
Moosa v. INS, 171 F.3d 994, 1006 (5th Cir. 1999) [PDF version].

However, Judge Jackson determined that New York’s Pretrial Diversion Agreement provisions differed significantly from the Texas deferred prosecution cases. Specifically, he explained that the Texas cases involved respondents who had pled guilty. In Iqbal, the petitioner had not pled guilty and had not admitted to facts constituting the elements of the charged crime.

Because the Court determined that section 101(a)(48)(A)(i) was not satisfied, it did not consider whether section 101(a)(48)(A)(ii) (which requires that the judge had ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed) was satisfied by the New York Pretrial Diversion Agreement. (that the judge had ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed).

Citing Reference: Boggala v. Sessions, 866 F.3d 563

Iqbal has been cited to only once in a precedent Federal appellate decision. In Boggala v. Sessions, decided on August 9, 2017, the Fourth Circuit considered whether a deferred prosecution in North Carolina constituted a “conviction” under the INA.

In considering the issue, the Fourth Circuit explained that to constitute a conviction, Boggala, the petitioner, must have made factual admissions “sufficient to warrant a finding of guilt” under section 101(a)(48)(A)(i). Citing to Iqbal, the Fourth Circuit explained that the fact the petitioner “admitted responsibility” would not be sufficient to meet the standard the absence of a specific reference to the charges and the alleged activities.

In Boggala, the petitioner was asked by the court in a deferred prosecution hearing the following question:

you are admitting responsibility and stipulating the facts to be used against you and admitted into evidence without objection in the state’s prosecution against you for this offense should prosecution become necessary … Do you understand that?

To this, the petitioner answered “yes.” The Fourth Circuit determined that this did constitute the petitioner admitting sufficient facts to warrant a finding of guilt because it was clear that the judge was referencing the charges against the petitioner. Furthermore, earlier on that same day, the petitioner and his attorney had received and signed the deferred prosecution agreement, which included a statement of the facts of the case against the petitioner and the stipulation that the petitioner would be tried based on those facts if the case were to go to trial.

In short, in Boggala, the Fourth Circuit cited favorably in Iqbal’s conclusion that a generic acceptance of responsibility does not meet the standard of admitting to sufficient facts to warrant a finding of guilt. However, it concluded that in the specific deferred prosecution case in North Carolina, the petitioner had admitted to such facts in entering into his deferred prosecution agreement.

Citing Reference: Matter of Mohamed, 27 I&N Dec. 92 (BIA 2017)

In Matter of Mohamed, the Board concluded that a pretrial intervention agreement in Texas was a “conviction” for immigration purposes. At note 6 of the decision, the Board distinguished the provision in Matter of Mohamed from the provision at issue in Iqbal. To read about the Board’s analysis of Iqbal and how it differed from Texas pretrial diversion agreements, please see the relevant section of our article [see section].

Conclusion

The case in Iqbal highlights a situation in which a deferred prosecution agreement was found to not qualify as a “conviction” for immigration purposes. The Board’s citation to the decision was therefore notable in Matter of Mohamed, which highlighted a situation in which it determined that a pretrial diversion agreement in Texas was a conviction under the INA. An alien facing criminal charges should always seek expert immigration counsel as well as criminal counsel before entering into any pre-trial agreement or plea. An attorney with experience in immigration law will be able to offer expert advice on the effect that different case outcomes may have on immigration status. Whether a specific deferred prosecution agreement or pretrial intervention agreement would trigger immigration consequences will always depend on the nature of the agreement, the facts admitted to by the alien, and the controlling precedent in the jurisdiction from which the case arises.