The Safety of Pre-Trial Diversion Programs in New Mexico

We frequently receive questions regarding whether pre-trial diversion programs in New Mexico result in a conviction for immigration purposes. DA administered pre-trial diversion programs in New Mexico do not result in a conviction for immigration purposes because no admission of guilt is made on the record, and no penalty is ordered by the court.  Instead, the admission and administration of the diversion program is with the DA. For immigration purposes, a “conviction” is defined as “a formal judgment of guilt of the [non-citizen] entered by a court or, if adjudication of guilt has been withheld, where -- a judge or jury has found the [non-citizen] guilty or the [non-citizen] has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and the judge has ordered some form of punishment, penalty, or restraint on the [non-citizen’s]  liberty to be imposed.” (Emphasis added.) Thus, where there is no admission of guilt on the record and no form of punishment, penalty, or restraint ordered by the judge, no conviction occurs for immigration purposes.

Although pre-trial diversion programs in New Mexico are generally administered by the DA and do not result in a conviction, it is important to be careful with judicially administered pre-trial diversion programs in other states. In Matter of Mohamed, 27 I&N Dec. 92 (BIA 2017), the Board of Immigration Appeals held that entry into a judicially administered pre-trial diversion program in Texas qualifies as a conviction for immigration purposes because the defendant both (1) admitted guilt in the stipulation of evidence in the court record to each element of the offense; and (2) entered a pretrial intervention program authorized by the court with community supervision, community service, restitution, fees, and a no contact order.  Mohamed, 27 I&N Dec. at 98. The Board reasoned that “[b]ecause only a judge can authorize a pretrial intervention agreement, which in this case included community supervision and community service, restitution, and a no-contact order in addition to the imposition of fees, we conclude that the respondent’s admission into a pretrial intervention program under Texas law is a ‘form of punishment, penalty, or restraint on the alien’s liberty’ that was ‘ordered’ by a judge.” Id. (emphasis added). 

Notably, Mohamed emphasized that the admission of guilt in the record and order by the judge to the pre-trial diversion program were the factors which made the Texas diversion program constitute a conviction for the purposes of immigration. Accordingly, that decision does not apply to DA administered pre-trial diversion programs in New Mexico because they do not require the admission of guilt in the record or the judge’s order to probation or other penalties.

To be clear, all diversion programs that we have seen in New Mexico do not fall under Mohamed and therefore do not result in a conviction for immigration purposes. Mohamed has not altered the way we advise our clients in New Mexico regarding pre-trial diversion programs. Diversion programs in New Mexico are safer than just about any other alternative plea, and are certainly safer than a conditional discharge or deferred sentence, which do qualify as convictions for immigration purposes.  

If any criminal defense attorney in New Mexico has questions about the immigration consequences of a conviction, we are happy to help.  Our mission is to break barriers and change the lives of immigrants, and if an attorney has a question about the immigration consequences for a client, please go to our website, enter a request for information, and we will get back to you.  Information on our website is on the following webpage: http://www.noblelawfirm.com/crimmigration.

If you are an attorney with the Law Office of the Public Defender of New Mexico (LOPD) or are handling a contract case with the LOPD, you can request detailed advice through our state contract regarding your immigrant client’s case.  Please visit http://www.noblelawfirm.com/lopd and follow the instructions there.