Deferred and withheld adjudication
A guilty plea followed by probation is a conviction for immigration purposes even if the criminal court never enters a judgment and later dismisses the case. The immigration statute says so, and the Board has applied it to Texas deferred adjudication. What is not a conviction is a disposition in which you never plead guilty and no court finds you guilty. The whole question at the plea is which of those two you are being offered, and the answer is in what you will be asked to say in court.
Current as of October 2026. We re-check this page regularly and after any rule change.
The disposition is the third of the moving parts on the plea strategy page, and in many misdemeanor cases it is the whole case. If the disposition on offer is not a conviction under the immigration definition, the categorical analysis, the sentence thresholds and the record never come into play. If it is, they all do. This page is about the dispositions that look like a way out and are not, the ones that actually are, and the difference between them.
The second clause of the definition
INA 101(a)(48)(A) has two halves. The first is the ordinary case, a formal judgment of guilt entered by a court. The second is written for every case in which the court does not enter one. Where adjudication of guilt has been withheld, a conviction exists if a judge or jury has found the person guilty, or the person 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 person's liberty. Congress wrote that clause to reach deferred and withheld dispositions, and the Board applied it to exactly that in Matter of Punu, 22 I&N Dec. 224 (BIA 1998): a Texas deferred adjudication, a guilty plea followed by community supervision with no judgment, is a conviction.
The second element is broad. A restraint on liberty includes probation and supervision of any kind. A penalty includes a fine, community service, a treatment program and a no-contact order entered as part of the disposition. A suspended sentence is a penalty and, under 101(a)(48)(B), a term of imprisonment as well. In practice, once a plea has been entered, the court almost always orders something, and that something completes the definition.
The plea is the conviction. The dismissal does not undo it.
An offer of "plead guilty, finish the program, and the charge goes away" is a conviction on the day you plead. When the charge later goes away, that is rehabilitative relief, and under Matter of Roldan-Santoyo, 22 I&N Dec. 512 (BIA 1999), a state expungement, set-aside or dismissal granted for completing the program does not eliminate a conviction for immigration purposes. The immigration court will read the plea, not the dismissal. The expungement page covers what does and does not remove a conviction later.
The proceeding also has to be criminal. Under Matter of Eslamizar, 23 I&N Dec. 684 (BIA 2004), a result is a conviction only if it comes from a proceeding that is criminal in nature, with proof beyond a reasonable doubt; an Oregon "violation" decided on a civil preponderance standard was not. That is a narrow doctrine and it does not turn on labels: a New York violation adjudicated in a criminal proceeding meets the statutory test on its face even though state law does not call the offense a crime; no reported Second Circuit decision squarely holds it either way, so it is treated as a conviction risk.
The dispositions, one by one
The table gives what can be said in general about each disposition. Where it says the answer depends on the test, the rest turns on your paperwork, so bring it to us.
| Disposition | Conviction? | Why | Authority |
|---|---|---|---|
| Texas deferred adjudication: plea, community supervision, no judgment | Yes | Plea plus a restraint on liberty | Matter of Punu, 22 I&N Dec. 224 (BIA 1998) |
| Florida withhold of adjudication after a plea of guilty or no contest, with probation or another penalty | Yes | Plea plus a penalty or restraint; the adjudication is withheld, which is the clause's own language | Fla. Stat. 948.01; INA 101(a)(48)(A) |
| New Jersey pretrial intervention with no plea and no finding of guilt | No | Nothing on the first list happened | N.J.S.A. 2C:43-12; INA 101(a)(48)(A) |
| New Jersey conditional discharge for certain drug offenses, granted without a plea | No | Same reason | N.J.S.A. 2C:36A-1; INA 101(a)(48)(A) |
| Either New Jersey program entered after a guilty plea | Depends on the test | A plea plus supervision satisfies both elements; the answer turns on how the disposition was actually entered | INA 101(a)(48)(A) |
| New York adjournment in contemplation of dismissal | Depends on the test | See the paragraph below | INA 101(a)(48)(A) |
| Federal first-offender probation for simple possession, dismissed on completion | No | The statute says the dismissed proceeding shall not be considered a conviction | 18 U.S.C. 3607(a), (b) |
New York's adjournment in contemplation of dismissal is, in general terms, an adjournment of the case for a period, after which the charge is dismissed if the conditions are met. Whether a given one is a conviction is decided by the same two questions as everything else on this page: was a plea, a finding of guilt or an admission of sufficient facts entered, and did the court order a penalty or restraint. We cannot give you a flat rule for New York's disposition, or for any state's diversion or conditional discharge beyond what the table says, because the answer turns on how each one is entered in each court, and "always" or "never" would be wrong for someone. The New York, New Jersey and Florida pages describe each state's procedure.
The federal first-offender statute and its state look-alikes
18 U.S.C. 3607 is the one deferred disposition whose result is written into the statute itself. A person found guilty of simple possession under 21 U.S.C. 844, with no prior drug conviction, may be placed on probation without entry of judgment. On successful completion the court dismisses the proceeding without an adjudication of guilt, and the statute provides that the dismissal "shall not be considered a conviction for the purpose of a disqualification or a disability imposed by law upon conviction of a crime." That is federal law speaking to a federal consequence, and the immigration definition yields to it.
Many states have programs that look the same: plead guilty to possession, complete probation or treatment, and the charge is dismissed. They are not the same. A state dismissal after a plea is a state rehabilitative disposition, and under Roldan-Santoyo it leaves the conviction in place for immigration purposes. The federal statute's protection does not travel to state analogs. A noncitizen offered a state first-offender program should ask whether it can be entered without a plea; if it cannot, it is a conviction, and for a drug charge that means a controlled-substance ground under 237(a)(2)(B)(i) or 212(a)(2)(A)(i)(II). The drug offenses page explains what follows.
How to ask the court for a disposition with no plea
The request is not "give my client diversion." It is "give my client a disposition that does not require a plea, a finding of guilt, or an admission of facts." Those are different things, and the second one is the one that matters. In practice it means asking three questions before the program is accepted.
Will the defendant be asked to plead?
Guilty or no contest, both count. The definition asks whether a plea was entered, not what the court did with it afterward.
Will the defendant be asked to admit facts?
An admission of sufficient facts to warrant a finding of guilt is on the first list of 101(a)(48)(A). A program that requires a written admission or an allocution as the price of entry can satisfy the definition even without the word "guilty."
Will the court order anything?
If the answer to the first two questions is no, this one does not matter, because the definition needs both halves. If the answer to either is yes, then probation, a fine, a program or a suspended sentence completes the conviction.
Two further cautions. For a person seeking admission or adjustment, INA 212(a)(2)(A)(i) reaches a person who admits committing a CIMT or a controlled-substance violation, or the essential elements of one, with no conviction at all. A no-plea disposition avoids the conviction; what is said in court on the way to it can still be an admission, and the record of conviction page explains why the colloquy is drafted with that in mind. And a no-plea disposition does nothing about the date of the offense, which is what stops the clock for cancellation of removal under the stop-time rule.
Get the disposition in writing before the court date
Ask the prosecutor to state in the plea offer, or ask the court to state on the record, that the case is being adjourned or diverted without a plea and without a finding or admission of guilt. Then get the certified disposition afterward and read it. What the immigration judge will see is the paper, and the paper has to match the conversation.
Read next: what counts as a conviction, youthful offender and juvenile cases, expungement and sealing, or immigration-safer pleas.
Common questions
The prosecutor says if I complete probation the case will be dismissed and I will have no record. Is that true for immigration?
Not if you plead guilty or no contest to get there. Under INA 101(a)(48)(A), a plea plus any penalty or restraint on liberty ordered by the judge is a conviction even where adjudication of guilt is withheld. Probation is a restraint on liberty. The later dismissal is rehabilitative relief, and under Matter of Roldan-Santoyo rehabilitative relief does not eliminate a conviction for immigration purposes. The offer may be excellent for your criminal record and still be a conviction on the day you plead.
What if I do not plead guilty and the case is just adjourned and dismissed?
Then nothing on the first list in 101(a)(48)(A) happened: no judgment, no plea, no finding of guilt, no admission of sufficient facts. A dismissal on those terms is not a conviction. Whether a particular program is run that way depends on the court and the paperwork, which is why the question to ask is what you will be required to say, not what the program is called.
Is a Florida withhold of adjudication a conviction?
Yes, where it follows a plea of guilty or no contest and comes with probation, a fine or another penalty. The court withholds the adjudication of guilt, which is exactly the situation the second clause of INA 101(a)(48)(A) was written for. It is a conviction for immigration purposes on the day the plea and the sentence are entered, whatever the Florida record later says.
Does the federal first-offender statute help me in state court?
Not directly. 18 U.S.C. 3607 is a federal statute for federal simple-possession cases: a first offender may be placed on probation without a judgment and the dismissed proceeding shall not be considered a conviction. A state program that looks like it, where you plead and then complete probation, is a state rehabilitative disposition, and under Matter of Roldan-Santoyo the state dismissal leaves the conviction in place.
Tell us about the charge before you take the plea. Not after.
You get a free conversation with an immigration attorney, in your language. We speak English, Russian, Spanish and Uzbek in-house, and we bring in a live interpreter for anything else. We will read the charge against the immigration statute, tell you what the offered plea does to your status and to every form of relief, and tell you what to ask your criminal lawyer to negotiate instead. If the plea has already been entered, we will tell you what can still be done.