What is considered a “conviction” for immigration purposes? Statute & Regulations Section 101(a)(48) (A) of the Immigration and Nationality Act defines conviction as: (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. See INA §101(a)(48) (A); 8 CFR §1101 (a)(48). CASE LAW The Board of Immigration Appeals has addressed the issue in various contexts. Matter of Chavez-Alvarez, 26 I. & N. Dec. 274 (BIA Mar. 14, 2014); Matter of Cuellar-Gomez, 25 I&N Dec. 850, 855 (BIA Jul. 18, 2012) (Kansas conviction of possession of marijuana, in violation of a Wichita municipal ordinance, constituted a conviction for immigration proceedings because the Wichita proceedings required proof beyond a reasonable doubt, even though there was no right to counsel or jury trial). The Second Circuit Court of Appeals has as well, “formal judgment of guilt” is defined by reference to Federal Rule of Criminal Procedure 32(k)(1), which provides that “[i]n the judgment of conviction, the court must set forth the plea, the jury verdict or the court’s findings, the adjudication, and the sentence.”Puello v. Bureau of Citizenship and Immigration Servs., 511 F.3d 324, 329 (2d Cir. 2007). Just because New York State decided to seal the records does not change their impact under Federal Law. See Matter of German Santos, 28 I&N Dec. 552, 557 (BIA 2022) (stating that whether immigration consequences flow from a State conviction is “a question of federal, not state, law, despite the fact that the predicate offense and its punishment are defined by the law of the State”). Matter of Azrag, 28 I&N Dec. 784 (BIA 2024) In 2024 the Board of Immigration Appeals issued a precedential decision regarding the circumstances under which a State Court vacates a conviction, which is extremely similar to this exact issue. The Board addressed whether the State’s vacatur would be recognized for immigration purposes. See Matter of Azrag, 28 I&N Dec. 784 (BIA 2024). In that case a noncitizen in Kansas was convicted of a removable offense. The State of Kansas ended up vacating that criminal conviction and allowing him to plea to a lower charge that, if recognized for immigration purposes, would defeat the charges of removability and allow him to keep his legal permanent resident status.     The Board found insufficient evidence in the record to determine that the convictions were vacated because of a defect in his criminal proceedings (that is, the constitutional right to effective assistance of counsel). The general rule with state court vacaturs is that they are recognized for immigration purposes when they are related to a substantive or procedural defect in the underlying proceedings; they are not recognized when they are done for purely rehabilitative purposes, such as to avoid immigration consequences. The Clean Slate Act does not vacate convictions, rather seals them, but it does so for rehabilitative purposes. The records are sealed after a set period of years upon showing rehabilitation. It has nothing to do with any defect in the underlying court proceedings or the law, so it would never be recognized for immigration purposes pursuant to Matter of Azrag, 28 I&N Dec. 784 (BIA 2024). If your conviction is vacated because of legal reasons relating to the underlying case then immigration will recognize that but cases that are disposed of for rehabilitation alone will remain as convictions will full force and effect. Matter of R-T-P-, 28 I&N Dec. 828 (BIA 2024) [full decision] (1) Under the statutory definition of “conviction” provided at section 101(a)(48)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(48)(A) (Supp. II 1996), no effect is to be given in immigration proceedings to a state action which purports to expunge, dismiss, cancel, vacate, discharge, or otherwise remove a guilty plea or other record of guilt or conviction by operation of a state rehabilitative statute. (2) With the enactment of the federal statute defining “conviction” with respect to an alien, our decisions in Matter of G-, 9 I&N Dec. 159 (BIA 1960, A.G. 1961); Matter of Ibarra Obando, 12 I&N Dec. 576 (BIA 1966, A.G. 1967); Matter of Luviano, 21 I&N Dec. 235 (BIA 1996), and others which address the impact of state rehabilitative actions on whether an alien is “convicted” for immigration purposes are no longer controlling. (3) Once an alien is subject to a “conviction” as that term is defined at section 101(a)(48)(A) of the Act, the alien remains convicted for immigration purposes notwithstanding a subsequent state action purporting to erase the original determination of guilt through a rehabilitative procedure. (4) The policy exception in Matter of Manrique, 21 I&N Dec. 58 (BIA 1995), which accorded federal first offender treatment to certain drug offenders who had received state rehabilitative treatment is superseded by the enactment of section 101(a)(48)(A), which gives no effect to state rehabilitative actions in immigration proceedings. Matter of Manrique, supra, superseded. (5) An alien, who has had his guilty plea to the offense of possession of a controlled substance vacated and his case dismissed upon termination of his probation pursuant to section 19- 2604(1) of the Idaho Code, is considered to have a conviction for immigration purposes. Conviction Without Sentence The statutory definition of conviction, for immigration purposes, requires that the court must have ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed. INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A)(2010). As the Second, Third and Fifth Circuits have held, a formal judgment of guilt requires that the court must set forth the plea, the jury verdict or the court’s findings, the adjudication, and the sentence. Singh v. Holder, 568 F.3d 525, 530 (5th Cir. 2009)