Immigration Consequences of a NY Charge Adjourned in Contemplation of Dismissal (ACD) Under CPL §170.55

What is ACD?

ACD is CPL §170.55 – Adjournment in Contemplation of Dismissal, which allows for a criminal case to be dismissed after six months so long as the person does not get a new criminal charge.

How Does it Affect an Immigration Case?

An Adjournment in Contemplation of Dismissal (ACD) does not require a guilty plea or any admission to the charges and therefore the acceptance of an ACD alone is not a conviction for immigration purposes. 1 During the adjournment period (while the case is adjourned, but not yet dismissed), the case will be considered “open” by immigration courts and agencies. As a result, individuals should be advised the case may:

● Complicate return to the U.S. from international travel;

● Impact the adjudication of immigration applications; and/or

● Impact removal (deportation) proceedings.

For many cases there may be complicating factors that require individualized analysis, so it is recommended that you review your case with an attorney before filing anything.

An Adjournment Contemplating Dismissal is entered before entry of plea or guilty or commencement of trial, but after charges are filed in court. N.Y. Crim. Proc. Law. § 170.55(1). The definition of “conviction” used within the immigration law requires (1) a formal judgment of guilty, or, where judgment has been withheld, a finding of guilt by a judge or jury, a guilty plea, or admission of facts by the defendant that warrant a finding of guilt; and (2) a judicially imposed punishment or restraint on the defendant’s liberty. INA § 101(a)(48)(A), 8 USC 1101(a)(48)(A).

Impact On Immigration Applications

Because an ACD does not ultimately result in a conviction for immigration purposes, the acceptance of an ACD alone will not make a client statutorily ineligible for immigration benefits in the future.

Generally, it is advise that individuals wait until the adjournment period is over before submitting any immigration application, when possible. Individuals must disclose the outcome of all arrests in immigration applications, including cases that were dismissed and sealed. individuals are generally required to include a Certificate of Disposition for every arrest and ticket that charged the client with a criminal offense when they submit an immigration application.

Individuals may be asked about this and any other arrests during an immigration interview. individuals who have had contacts with the criminal legal system, even if the result was a dismissed case, should consult with an immigration attorney before submitting any immigration application.

Impact On Citizenship Applications

Lawful permanent residents are eligible for citizenship if they meet specific requirements. One of the eligibility requirements for citizenship is the applicant must demonstrate that they have “Good Moral Character” (GMC) during the five 2 years immediately prior to applying . Immigration will consider arrests and convictions within the GMC period in discretion, even if they do not make the client ineligible for citizenship.

Individuals considering applying for citizenship should consult with a knowledgeable immigration attorney about whether to wait for five years after the conclusion of this case before submitting an application.

Impact on other applications

After the adjournment period is over, the dismissed case alone will not be a bar to any immigration benefit for which the client is otherwise eligible. However, the arrest may be considered in discretion in the context of the client’s complete criminal and immigration history. individuals who have had contacts with the criminal legal system, even if the result was a dismissed case, should consult with an immigration attorney before submitting any immigration application. An immigration attorney can help the client determine the risk of submitting any application, put together the best supporting materials, and otherwise help ensure a successful application.

Impact on Current Removal Proceedings

Individuals in removal (deportation) proceedings should not become statutorily ineligible for any relief from removal based on an ACD. However the arrest and ensuing open criminal case may have a negative impact on the removal case and the client’s ability to remain out of immigration detention, depending on their criminal and immigration history. You can contact the client’s immigration attorney or IDP for individualized advice about this case.

Recent Case

People v Brennan
2022 NY Slip Op 50163(U) [74 Misc 3d 1217(A)]

Analysis begins with pertinent parts of NY CRIM PROC. LAW § 170.55, stating:

§ 170.55(1)[. . .] after arraignment in a local criminal court upon an information [ ], and before entry of a plea of guilty thereto or commencement of a trial thereof, the court may, upon motion of the people or the defendant and with the consent of the other party, or upon the court’s own motion with the consent of both the people and the defendant, order that the action be “adjourned in contemplation of dismissal,” as prescribed in [ ]:

§ 170.55(2)An adjournment in contemplation of dismissal is an adjournment of the action without date ordered with a view to ultimate dismissal of the accusatory instrument in furtherance of justice. Upon issuing such an order, the court must release the defendant on his own recognizance. Upon application of the people, made at any time not more than six months, [ ] after the issuance of such order, the court may restore the case to the calendar upon a determination that dismissal of the accusatory instrument would not be in furtherance of justice, and the action must thereupon proceed. If the case is not so restored within such six months or one year period, the accusatory instrument is, at the expiration of such period, deemed to have been dismissed by the court in furtherance of justice.

—NY CRIM PROC. LAW § 170.55

The court finds no reason why this action should proceed, and no reason why leaving the case adjourned, and off the calendar, would impede the furtherance of justice. Accordingly, barring happenings, events, things, and matters contrary to the interests of justice—transpiring between this date, and April 7, 2022—the violation charge shall remain adjourned in contemplation of dismissal.

The People’s restoration application is denied. The People retain leave for filing a subsequent application until April 6, 2022. In the absence of a further order to the contrary, the adjourned violation charge shall automatically and mechanically consummate, and mature into a dismissal, on April 7, 2022. The Defendant shall promptly notify this Court whether the Motion to Dismiss of even date, is withdrawn in light of this decision, or whether the Motion to Dismiss remains pending.