suhrelaw | April 30, 2017 | Criminal Law

This is a very tricky situation and an immigrant should proceed with caution and speak with an attorney before entering into any type of diversion program. There are very specific rules and requirements for diversion and the immigrant needs to be fully aware of the law surrounding their specific situation

Does entering diversion require a “guilty plea” and what does that mean?

Yes. In most jurisdictions, a defendant must “plea guilty” before they can enter into the diversion program. The judge does not “accept” or “enter” the guilty plea on the record. This is a way to prevent defendants from dragging out the court process and trying diversion, than 6 months later saying they want a trial. If you fail diversion, the judge will then “enter” the guilty plea and there is nothing you or your attorney can do at that point. So if you’re not going to take diversion seriously, do not choose to participate.

What does this mean for immigrants? Ohio immigration law considers any “plea” a “conviction” for immigration purposes. This is a HUGE PROBLEM for immigrants who want to participate in diversion. If the underlying offense is a “crime involving moral turpitude” or CIMT, that could result in deportation. Theft offenses, obstructing charges, falsification charges, etc. all fall under the CIMT category and can potentially result in deportation. Accordingly, if an immigrant is charged with a CIMT, they could potentially face deportation even if the charge is eventually dismissed upon the completion of diversion. Because of the way the immigration law is written, that initial guilty plea counts as a conviction and the state can use that against the immigrant even if the charges is going to be dismissed.

The law states:

(48) (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 a 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 punishment, penalty, or restraint on the alien’s liberty to be imposed.

What does this mean for immigrants?

Before entering into a diversion program, you should contact both a criminal law attorney and an immigration attorney. That way you make sure all of your bases are covered. The criminal attorney can evaluate the case and try to work out some kind of agreement with the prosecutor or judge. The immigration attorney can explain the potential immigration ramifications the plea or program may have on your immigration status.

If you have been charged with a crime and you are diversion eligible but are not sure if it will affect your immigration status, contact a criminal attorney at Suhre and Associates.