Municipal and District Courts and prosecutors throughout Washington State make use of a wide variety of non-statutory pre-plea deferred adjudication schemes and procedures (i.e., Stipulated Orders of Continuance, Alternative Dispositions, Continuation For Dismissal).  Additionally, the increasing prevalence of specialty courts such as Domestic Violence Court, Mental Health Court, and Drug Courts, often employ various deferred adjudications that do not require a formal plea of guilty.  The specifics of each scheme vary somewhat, although all are designed to result in a dismissal of the charges if the defendant complies with certain conditions.[1]

Virtually all of the courts that permit some type of deferred adjudication process have boilerplate forms that are used to embody the agreements or stipulations.  For immigration purposes, the portion of these agreements that matters is where the defendant agrees to the admissibility of the police report into evidence with the understanding that if he violates the agreement the judge will rely (oftentimes solely) on the police report in determining the defendant’s guilt or innocence.  Some agreements go further and require the defendant to actually stipulate to the accuracy of the facts contained in the police report.

These admissions run the risk of falling within the immigration statute’s definition of conviction, which requires a mere admission of "facts sufficient to warrant a finding of guilt.”[2]  Traditionally, a disposition under a pre-plea deferral agreement or diversion statute has not been a conviction for immigration purposes.[3]  However, in 1996 Congress enacted changes to the definition of conviction, and the legislative history makes it clear that Congress intended to include "formal admissions" of guilt in the definition of conviction.  As a result, a formal admission of facts sufficient to warrant a finding of guilt may now result in deportation/removal.[4]  But since this definition change there have been no BIA or Ninth Circuit Court decisions about how pre-plea deferred adjudications should be construed in the context of conviction.

There is a strong argument that Washington's pre-plea deferred adjudications are not formal admissions.  Most deferred adjudication schemes used by Washington Municipaland District Courts do not require the defendant to plead guilty or formally admit guilt.  Moreover, where the defendant has merely agreed to the admissibility of evidence into the record—such as the police report—there has been no actual admission of guilt and there has been no determination as to the sufficiency of the evidence.  There is a strong argument in such cases that there is no conviction under 8 USC 1101(a)(43)(A) since there has been no admission of guilt or stipulation to facts sufficient and neither the Immigration Court nor the DHS examiners and officers are permitted to render determinations as to the sufficiency of evidence in a criminal proceeding.  This is, of course, a much harder argument to make where the deferral agreement signed by the defendant includes not only the admissibility of the police report into evidence, but also a stipulation as to the sufficiency of the facts contained therein.[5]  Defense attorneys should use “immigration safe” language in these deferred adjudication agreements whenever possible.  WDA’s Immigration Project has developed “immigration safe” language that has been successfully incorporated into many deferred adjudication agreements for noncitizens throughout the state.  Examples of this safe language are available in Appendix B.