The CWOF and Immigration in Massachusetts: Why a Continuance Without a Finding Is a Federal Conviction

Scope of representation. Serpa Law Office represents non-citizen defendants on the criminal side of Massachusetts court proceedings only. Attorney Serpa uses the knowledge of immigration consequences to pursue the best available criminal case outcomes for non-citizens. Attorney Serpa does not represent clients in immigration court, before the Board of Immigration Appeals, or in removal proceedings. For representation in removal proceedings or before USCIS, clients should retain experienced immigration counsel. For complex matters requiring coordination between criminal defense and immigration counsel, Attorney Serpa works with the client’s immigration attorney to ensure that the criminal defense strategy accounts for all immigration consequences at every stage of the case.

What a CWOF Is Under Massachusetts Law

A Continuance Without a Finding (CWOF) under M.G.L. c. 278, § 18 is a dispositional outcome in which the defendant admits to sufficient facts to support a guilty finding, the judge continues the case without entering a finding of guilty, and the defendant is placed on probation. If the defendant completes the probationary period without violating its conditions, the case is dismissed. Under Massachusetts law, a CWOF is not a conviction. It does not appear on CORI as a guilty finding. It can be sealed after the applicable waiting period under M.G.L. c. 276, § 100A. Massachusetts courts, licensing boards, and background check services that operate under state law treat a completed CWOF as a disposition that is not a conviction.

Federal immigration authorities do not.

The Federal Definition: 8 U.S.C. § 1101(a)(48)(A)

Under 8 U.S.C. § 1101(a)(48)(A), a “conviction” for federal immigration purposes means a formal judgment of guilt entered by a court, or, if adjudication of guilt has been withheld, the alien 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 alien’s liberty. A Massachusetts CWOF satisfies both prongs of this definition: the defendant admits to sufficient facts at the CWOF proceeding, and the judge imposes probationary conditions as a restraint on liberty. The Massachusetts classification of the CWOF as a non-conviction has no relevance to the federal immigration analysis.

Under Matter of Punu (22 I&N Dec. 224, BIA 1998), the Board of Immigration Appeals held that a Massachusetts CWOF constitutes a conviction for immigration purposes under the § 1101(a)(48)(A) definition. This holding has been consistently applied by the First Circuit Court of Appeals and in Massachusetts immigration proceedings. A non-citizen who accepts a CWOF is convicted of the underlying offense for every purpose of the Immigration and Nationality Act.

What the CWOF Conviction Triggers

Deportability. A CWOF on a domestic violence charge (M.G.L. c. 265, § 13M) renders a non-citizen deportable under 8 U.S.C. § 1227(a)(2)(E)(i). A CWOF on a drug offense under M.G.L. c. 94C renders a non-citizen deportable under 8 U.S.C. § 1227(a)(2)(B)(i). A CWOF on a crime of moral turpitude committed within five years of admission for which a sentence of one year or more may be imposed triggers deportability under 8 U.S.C. § 1227(a)(2)(A)(i). See: Crimes of Moral Turpitude and Aggravated Felonies in Massachusetts Cases.

Inadmissibility. A non-citizen with a CWOF who travels abroad and seeks readmission is subject to the inadmissibility grounds under 8 U.S.C. § 1182. A CWOF on a crime of moral turpitude may trigger inadmissibility under § 1182(a)(2)(A)(i). A lawful permanent resident who travels internationally after accepting a CWOF may be excluded at the port of entry on return.

Bar to naturalization. Good moral character is a requirement for naturalization under 8 U.S.C. § 1427. A CWOF that constitutes a conviction for immigration purposes can establish a lack of good moral character during the statutory period, particularly when the underlying offense is a crime of moral turpitude or involves a controlled substance.

DACA termination. A CWOF on a domestic violence charge, an OUI, or a drug offense is treated as a conviction for DACA termination purposes under DACA program guidelines. A DACA recipient who accepts a CWOF on one of these charges may have DACA status terminated.

Firearms disability under the Lautenberg Amendment. A CWOF on a domestic violence charge where the complainant is a family or household member triggers the federal Lautenberg Amendment firearms disability under 18 U.S.C. § 922(g)(9), permanently prohibiting possession of any firearm or ammunition.

OUI prior offense calculation. A CWOF on an OUI charge counts as a prior offense for purposes of calculating penalties on any future Massachusetts OUI charge, permanently eliminating the benefit of the first-offense disposition. See: OUI and Immigration in Massachusetts.

Pretrial Probation: The Immigration-Neutral Alternative

Pretrial probation under M.G.L. c. 276, § 87 is generally the safest post-arraignment outcome for a non-citizen when a favorable resolution short of trial or dismissal is needed. Pretrial probation involves no admission to sufficient facts, the defendant does not admit anything, and the case is simply continued on conditions and dismissed upon successful completion. Because there is no admission, pretrial probation generally does not satisfy the § 1101(a)(48)(A) federal conviction definition.

When the Commonwealth is offering a CWOF and the defendant is a non-citizen, defense counsel should negotiate for pretrial probation instead. The prosecution may agree to pretrial probation in cases where the defendant has no prior record and the facts support a favorable resolution. The immigration consequence of a CWOF compared to pretrial probation can be the difference between deportation and remaining in the United States. See: CWOF, Pretrial Probation, and Diversion in Massachusetts FAQs.

When a CWOF Has Already Been Accepted

A non-citizen who accepted a CWOF without being advised of its immigration consequences by prior defense counsel may be entitled to withdraw the admission under Massachusetts Rule of Criminal Procedure 30(b) and Padilla v. Kentucky (559 U.S. 356, 2010) as applied by the Massachusetts SJC in Commonwealth v. Clarke (460 Mass. 30, 2011). The motion must show that prior counsel’s advice was constitutionally deficient and that the defendant would not have accepted the CWOF had accurate immigration advice been provided. See: Motions for a New Trial Under Padilla v. Kentucky.

Related Pages

• Continuance Without a Finding (CWOF)
• CWOF, Pretrial Probation, and Diversion in Massachusetts FAQs
• Crimes of Moral Turpitude and Aggravated Felonies in Massachusetts Cases
• Domestic Violence Charges and Immigration
• OUI and Immigration in Massachusetts
• Motions for a New Trial Under Padilla v. Kentucky
• Drug Crimes Defense in Massachusetts
• Massachusetts Firearms Defense
• OUI Defense in Massachusetts
• Massachusetts Felonies vs. Misdemeanors
• Massachusetts Criminal Records (CORI)
• Criminal Defense for Licensed Professionals in Massachusetts
• Arraignment in the Massachusetts Trial Court
• Immigration Consequences of Massachusetts Criminal Charges

Contact Serpa Law Office at 617.936.0201 for a confidential consultation about the immigration consequences of a Massachusetts CWOF or proposed plea. Boston office: 20 Park Plaza #400A. Quincy office: 500 Victory Rd., Suite 400A. Available 24 hours a day.