Collateral Consequences of Juvenile Delinquency Proceedings

11. Immigration Consequences

A. Grounds for Inadmissibility and Removal

Negative immigration consequences may be triggered by criminal convictions, admissions, or “bad conduct.” Certain adult court criminal convictions and “admissions,” have immediate severe consequences, resulting in deportation and permanent inadmissibility. Juvenile delinquency adjudications and “admissions,” do not carry those direct consequences, but “bad conduct” can have serious, long-term negative immigration consequences for youth. An adjudication for selling marijuana, for example, can become a permanent impediment to a youth’s later attempt to achieve legal status in the United States.

NOTE: Immigration law refers to “removal,” which is the functional equivalent of deportation. “Inadmissibility” refers to entrance at a border, but it also refers to attempts to improve one’s legal status, for example obtaining a visa, lawful permanent resident status (green card), or naturalization and citizenship.

Immigration courts have “consistently held that juvenile delinquency proceedings are not criminal proceedings, that acts of juvenile delinquency are not crimes, and that findings of juvenile delinquency are not convictions for immigration purposes. In re Miguel Devison-Charles, 22 I&N Dec. 1362 (BIA 2000). Nor can an “admission” to a delinquent act be considered; an “admission” under the immigration act. Matter of M-U-, 2 I&N Dec. 92 (BIA 1944). Therefore, immigration consequences resulting directly from convictions or “admissions” do not apply to proceedings in juvenile court.

A. Grounds for Inadmissibility and Removal

Some grounds for inadmissibility and removal are based on "bad conduct," and a delinquency adjudication can be evidence of that conduct. 8 U.S.C. §§ 1182(a)(2),1227(a)(2). Bad conduct includes the following:

Drug Trafficking: A person is inadmissible if authorities have “reason to believe” that they have ever “assisted or participated in trafficking a controlled substance.” This could be a permanent bar to obtaining lawful status, because it can only be waived for certain visa applicants. It is also very broad, including offenses such as possession with intent to deliver, and marijuana offenses, even if marijuana is legal in the state. (Marijuana is a federal “controlled substance”). It also includes aiding and abetting or conspiring to traffic. This is one of the most common “bad conduct” grounds applied to children in immigration cases.

Drug Abuse or Addiction: A person can be deported if, at any time after entry to the United States, the person abused or was addicted to controlled substances. This requires a medical determination that the person meets (or met) the Diagnostic and Statistical Manual of Mental Disorders (DSM) criteria for abuse or addiction, but a delinquency adjudication may trigger an inquiry into this question. There is a related category of “habitual drunkenness” that might be triggered, for example, by multiple convictions for operating while intoxicated.

Condition Posing Threat to Self or Others: If a person has a physical or medical condition that poses a threat to self or others, they can be denied admission. Again, it is a medical determination, but one which might be triggered by a delinquency adjudication for a sex offense, for example, or even a history of suicide attempts.

Violation of Domestic Violence “No Contact” Order: If an order is entered in a domestic violence case, a person can be deported for violating the order, whether it’s a condition of supervision or a violation of an injunction or temporary restraining order. No conviction is necessary, so a juvenile court finding of a violation could be sufficient evidence.

Engaging in Prostitution: A non-citizen is inadmissible if they come to the United States to engage in prostitution. A single act is insufficient evidence, but if a child is adjudicated delinquent more than once it may be sufficient evidence of “engaging in in a pattern or practice of sexual intercourse for financial or other material gain.”

Making False Claims of Citizenship: There are many ways this could happen – from using a fake passport as ID to get into a bar, to claiming citizenship on an employment application.

B. Discretionary Decisions

Bad conduct, as evidenced by juvenile adjudications, can also be a negative factor in discretionary immigration decisions. For example, immigration officials have discretion to grant asylum or cancel removal, based on the totality of the circumstances. Similarly, requests for affirmative relief, like an adjustment of status to lawful permanent resident, asylum, or Deferred Action for Childhood Arrivals (DACA), involve discretionary decisions.

Delinquency adjudications, again as evidence of bad conduct, can result in a person being held in immigration detention. If a child is apprehended by Immigration and Customs Enforcement (ICE), the child can be released to family, transferred to the Office of Refugee Resettlement (ORR), or kept in ICE custody. A delinquency record weighs in favor of ICE detention. ⁷⁰

C. Sex Offenses and Violent Felonies

Other long-term consequences can result from delinquency adjudications. Naturalized citizens and legal permanent residents cannot file visa applications on behalf of close family members if they have been convicted of any number of sex offenses. Delinquency adjudications count as a “conviction” for these purposes, if the youth was age 14 or older, and if the sex offense involved a child under the age of 12 or was by force or threat with a child between the ages of 12 and 15.

Also, children with a delinquency adjudication that would be a felony involving violence or the threat of physical force if committed by an adult, are ineligible for the “Family Unity'' program, which allows people who arrived under special amnesty programs with temporary or permanent legal status to help close family members, including children, to obtain temporary lawful status and work authorization. See Immigration Act of 1990 (as amended by the Illegal Immigration Reform and Immigration Responsibility Act of 1996, § 383).

D. Special Immigrant Juvenile Status

Finally, children who are in juvenile court either for delinquency or need for protection or services, may have a path to permanent lawful status through “Special Immigrant Juvenile Status.” If a juvenile court has placed a child under the custody of an agency, an individual or an entity appointed by the court; reunification with one or both parents is not viable due to abuse, neglect, abandonment or similar basis; and the court determines that it is not in the child’s best interest to be returned to their home country, a child may apply for special immigrant status.

NOTE: Most of the information in this section was taken from the Immigration Law Resource Center’s publications on immigration consequences of a delinquency adjudications.⁷¹ ⁷² Another good source of information is the United States Department of Homeland Security.⁷³ However, immigration law is complicated and changes often with new case law and new interpretation of statutes, so consultation with an immigration attorney is always advisable.

⁷⁰ Phipps, Rebecca, Starting Over: The Immigration Consequences of Juvenile Delinquency and Rehabilitation, Section III. C. 3, Vol. 40:515(2016), N.Y.U. Review of Law & Social Change, <https://socialchangenyu.com/wp-content/uploads/2016/10/phipps_digital_9-19.pdf>

⁷¹ Prandini, Rachel, What are the Immigration Consequences of Delinquency?, 3/20, Immigration Legal Resource Center, <https://www.ilrc.org/sites/default/files/resources/imm_consequences_of_delinq_3.30.20.pdf>

⁷² Immigration Consequences of Juvenile Delinquency, Inadmissibility (8 USC § 1182(a)) and Deportability (8 USC § 1227(a)),1/18, Immigration Legal Resource Center <https://www.ilrc.org/sites/default/files/resources/juvenile_delinquency_cheat_sheet_ilrc_jan_2018_update_0.pdf >

⁷³ Citizenship and Immigration Services, retrieved December 27, 2022, U.S. Department of Homeland Security, https://www.dhs.gov/topics/citizenship-and-immigration-services