A former student recently asked me about the immigration law implications of being found not guilty by reason of insanity. Specifically, the student wanted to know whether this was a “conviction” for immigration law purposes? Having never encountered this situation before, I was unsure. Frankly, I’m still not sure, but here are my thoughts.
The starting point seems to have to be the INA’s two-pronged definition of “conviction,” INA § 101(a)(48)(A). I’ll start with the second prong because I think that’s usually going to be easier to examine. INA § 101(a)(48)(A)(ii) requires that “the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.” In most instances where a criminal adjudication ends in a determination that the defendant is not guilty because of insanity the court will order the defendant into a psychiatric institution. I have little doubt that this would satisfy the “penalty” or “restraint” language of this provision. Indeed, an old BIA decision held that institutionalization in a state mental hospital could serve as the basis for a “conviction” even though the individual there was not ordered into a penal institution. Matter of V, 7 I. & N. Dec. 242 (BIA 1956). More recently, the BIA held that imposition of court costs constituted a “penalty” for INA § 101(a)(48)(A)(ii) purposes. Matter of Cabrera, 24 I. & N. Dec. 459 (BIA 2008). Without question, court costs are less restrictive than institutionalization in a psychiatric treatment center.
Now for the “conviction” definition’s first prong—that “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.” INA § 101(a)(48)(A)(i). Whether or not this requirement is satisfied seems to turn on the particular criminal procedure used. In Colorado, where I currently live and teach, a plea of not guilty by reason of insanity, according to the Colorado Supreme Court, “operates as an acquittal of the charged offenses.” People v. Laeke, 271 P.3d 1111, 1116 (Colo. 2012) (en banc). That seems sufficient to avoid being construed as a guilty plea.
In other cases, however, the Colorado Supreme Court explained that not guilty by reason of insanity is “a plea in the nature of confession and avoidance.” People v. Chavez, 629 P.2d 1040, 1047 (Colo. 1981). What this means, the court explained, is that “By asserting it the defendant admits the acts charged, but denies criminal culpability. The defendant’s denial of guilt is predicated on a claim of mental disease or defect which, by reason of its existence, relieves him of criminal responsibility for his conduct.” Chavez, 629 P.2d at 1047 (internal citations and quotations omitted). In other words, Colorado requires the defendant to admit having engaged in the acts charged but does not impose a punishment because the defendant is thought to have legally lacked the mental capacity to commit a crime.
This strikes me as enough to satisfy the “admitted sufficient facts” option of INA § 101(a)(48)(A)(i). Colorado NGRI plea, it seems, has an inherent quid pro quo—in exchange for avoiding criminal liability, the defendant must admit to having engaged in these actions. If I’m correct, then attorneys contemplating a NGRI plea for their noncitizen clients in Colorado and states with similar NGRI schemes ought to think long and hard about the possible immigration law consequences.