The Board of Immigration Appeals and other circuits have concluded that whether an adjudication is a juvenile delinquency proceeding and not a conviction for immigration purposes turns on whether the adjudication "corresponds to a determination of juvenile delinquency" under the Federal Juvenile Delinquency Act, 18 U.S.C. § 5031 et seq. ("FJDA"). In re Devison-Charles, 22 I N Dec. 1362, 1368 (BIA 2000); see Badewa v. Att'y Gen., 252 F. App'x 473 (3d Cir. 2007); Uritsky v. Gonzales, 399 F.3d 728 (6th Cir. 2005). The analysis here therefore requires the determination whether the DCYRA corresponds to a determination of juvenile delinquency under federal law.

Second, Cooke takes issue with the substance of the BIA's ruling. In particular, he argues that his attempted robbery conviction was really a youthful-offender adjudication, that it thus does not constitute a "conviction" as defined in 8 U.S.C. § 1101(a)(48)(A), and that the BIA's conclusion to the contrary conflicts with its decision in In re Devison-Charles, 22 I. & N. Dec. 1362 (BIA 2000). In Devison-Charles, the BIA held that a youthful offender adjudication under New York law does not constitute a conviction for immigration purposes.

The BIA does not, however, consider juvenile delinquency adjudications as criminal convictions under 8 U.S.C. § 1101(a)(48)(B). See, e.g., Matter of Devison, 22 I. N. Dec. 1362, 1369 (BIA 2000). While deferred adjudications, such as expungements under state rehabilitative statutes, qualify as convictions for immigration purposes, see Matter of Roldan, 22 I. N. Dec. 512, 523 (BIA 1999), delinquency findings do not, since they designate the offender with a particular status that cannot be revoked.

Plaintiff also claims that it was legal error for USCIS to consider his juvenile criminal history, especially because he was not convicted of a crime. Plaintiff cites to In re Devision , 22 I. & N. Dec. 1362 (BIA 2000), to support his argument. In that decision, the BIA held that an adjudication of a youthful offender does not constitute a judgment of conviction for a crime under the INA.

Ovalle was ordered removed to the Dominican Republic in 1999 after he asked the Board of Immigration Appeals to order his removal. Soon after he was repatriated, the BIA decided In re Devison, 22 I. & N. Dec. 1362, 1365-68, 1373 (B.I.A. 2000), which held that an adjudication of youthful offender status under Article 720 of the New York Criminal Procedure law does not constitute a judgment of conviction under the Immigration and Nationality Act.

As the BIA has explained, the petitioner's age, and not the procedural safeguards of the juvenile proceedings, is dispositive in holding that juvenile delinquency proceedings are not criminal. In re Devison-Charles, 22 I. & N. Dec. 1362, 1365 (B.I.A. 2000) ("[A]cts of juvenile delinquency are not crimes."). The privilege against self-incrimination and double jeopardy protection remain unique constitutional safeguards in criminal proceedings.

During his proceedings, Ovalle successfully argued to the Immigration Judge that his youthful offender adjudication did not constitute a deportable offense under the Immigration and Nationality Act, but he conceded deportability on appeal to the BIA and was deported to the Dominican Republic in 1999. Seventeen years later, he filed a sua sponte motion to reopen with the BIA, arguing that under the BIA's decision in In re Devison, 22 I. & N. Dec. 1362 (B.I.A 2000)—which came down shortly after Ovalle was deported and held that youthful offender adjudications do not constitute "conviction[s]" under the INA, id. at 1373—he was never "convicted of a[] crime" for immigration purposes and his removal proceedings should be "reopen[ed] and terminat[ed]," AR 26. The BIA reasoned that, while our Circuit and many others have "invalidated the post-departure bar when applied to statutory motions to reopen, i.e., timely motions to reopen[,] . . . untimely (sua sponte) motions to reopen are subject to the post-departure bar" according to our decision in Desai v. Attorney General, 695 F.3d 267 (3d Cir. 2012).

Whether a state statute expunges a criminal conviction that has already been entered, or dismisses charges after delayed adjudication, in either case the offender has been "convicted" for the purposes of federal immigration law so long the two requirements of § 1101(a)(48)(A) are met. See In re Salazar-Regino, 23 I. & N. Dec. 223, 235 (BIA 2002) (en banc); In re Devison-Charles, 22 I. & N. Dec. 1362, 1371-72 (BIA 2001); In re Roldan-Santoyo, 22 I. & N. Dec. 512, 523 (BIA 1999), overruled on other grounds by Lujan-Armendariz v. Immigration and Naturalization Serv. , 222 F.3d 728 (9th Cir. 2000); see also Uritsky v. Gonzales, 399 F.3d 728, 732-36 (6th Cir. 2005). As discussed below, the record establishes that Padhiyar's adjudication was deferred, and his potential conviction negated, by means of Tenn. Code Ann. § 40-35-313, the state's "judicial diversion statute."

The BIA also rejected Lecky's argument that he should have been treated as a juvenile offender for immigration purposes, citing First Circuit precedent as well as its own case law. See Vieira García v. I.N.S., 239 F.3d 409, 413 (1st Cir.2001) (rejecting the argument that federal law should determine whether a minor can be convicted as an adult); Matter of Devison–Charles, 22 I. & N. Dec. 1362, 1372 (BIA 2000) (similar). Finally, it concluded that an Alford plea is a guilty plea, and thus deserves no special treatment when determining whether an alien has been convicted of an aggravated felony.

Having resolved this basic question, we turn to whether Cole is removable because of this conviction. Our holding does not call into question the BIA's precedent in In re Devison, 22 I. & N. Dec. 1362 (B.I.A.2000). In that case, the BIA held that state proceedings analogous to the Federal Juvenile Delinquency Act did not produce convictions for immigration purposes.