Kari Converse is now in private practice in Albuquerque after over nine years as an Assistant Public Defender in the office of the New Mexico Public Defender. She spent five years of her public defender career in death penalty cases and four in the general felony division. A member of The Champion Advisory Board, she has written extensively on the immigration consequences of criminal convictions.
Last year marked a year of xenophobia in Congress, where some of the most unforgiving, cold-hearted, and mean-spirited anti-immigrant legislation ever was passed.1 While many of the cruelest provisions affect law-abiding residents, this article will discuss the changes in the law as it affects those accused of crimes.
Moral Turpitude Crimes
The 1996 Antiterrorism and Effective Death Penalty Act (AEDPA) changed the definition of a crime involving moral turpitude. A non-citizen was previously deportable for committing a crime of moral turpitude within five years of entry where the sentence imposed was a year or more.2 The AEDPA makes the client now removable after one crime if the potential sentence was a year or more,3 and if the client entered within the last five years, or if an amnesty or SAW (seasonal agricultural worker) immigrant, within ten years. This means misdemeanors with sentences greater than 364 days and any felony whatsoever will result in removability, and eliminates creative sentencing schemes as a way of avoiding removability.
Finality
The 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) also changed the definition of a "final conviction," eliminating the third prong of the Ozkok test.4 Under 8 U.S.C. 1101(A)(48), a conviction is final if these elements are met:1. The client has plead guilty or no contest, has admitted facts sufficient to support a finding of guilt, or has been found guilty by a judge or jury; and
2. The client is adjudged guilty, or if adjudication is withheld, the court has imposed some restriction on the defendant's liberty (such as paying a fine, reporting to a probation officer, refraining from some activity, or going to prison).5
A deferred sentence or a sentence with suspended imposition is a final conviction. A case taken under advisement is probably not, as the judge has not made any final disposition to remove the case from his calendar.6 Preprosecution probation/pretrial diversion is not a final conviction. A case on direct appeal is not a final conviction.7,8
Aggravated Felonies
Perhaps the most devastating change (it's hard to say; there's pretty stiff competition in this category) is the drastic expansion of the definition of aggravated felonies.In 1988, Congress first created the category of aggravated felony as a means of singling out the worst criminals for special treatment.9 The first version of 8 U.S.C. 1101(a)(43) defined "aggravated felony" as murder, drug trafficking, and firearms trafficking. Over the years, more and more crimes were added. The Immigration Act of 199010 added subparagraph (F), "crime[s] of violence (as defined in Section 16 of Title 18,11 but not including a purely political offense) for which imprisonment of at least five years is imposed, regardless of any suspension." The Immigration and Nationality Technical Corrections Act of 199412 added numerous other crimes, including subparagraph (G), "a theft offense (including receipt of stolen property) or burglary offense for which imprisonment of at least five years is imposed (regardless of any suspension)." Section 321 (a)(3) of the IIRIRA amends 1101(a)(43) by "in subparagraphs (F), (G), (N), and (P), by striking 'is at least five years' each place it appears and inserting 'at least one year.'" The effect of this is to render virtually all non-regulatory felonies aggravated felonies, i.e. making the client removable, since now, thefts, burglaries, and crimes of violence where the sentence imposed (regardless of any suspension) exceeds one year are aggravated felonies. This definition applies retroactively.
The definition of aggravated felony now includes the following:13
murder, rape, sexual abuse of a minor
drug trafficking
weapons trafficking
money laundering
crimes of violence as defined in 18 U.S.C. 16 for which the sentence is at least one year14
theft or burglary offenses for which the sentence is at least one year
kidnapping offenses
child pornography offenses
RICO (racketeer influenced corrupt organization) offenses
pimping or involuntary servitude offenses
espionage offenses
fraud or tax evasion in excess of $10,000
alien smuggling for commercial advantage
document trafficking offenses for which the sentence is at least one year
failure to appear for service of sentence if the underlying offense is punishable by two years or more
illegal re-entry after deportation if the accused was previously convicted of an aggravated felony
and attempts or conspiracies to commit any of the above.
There are special reasons to avoid convictions for aggravated felonies. First, an aggravated felony conviction precludes virtually all forms of relief from removal. Even if the client cannot altogether avoid removal, it is preferable not to be removed as an aggravated felon. This can be especially serious for people who are here as political asylees or refugees, as removal to their home country could mean death. Removal proceedings for aggravated felons are expedited. Re-entry is forbidden for 20 years.15 If the person returns illegally, the sentence is up to 20 years, as opposed to 10 for removal for other criminal offenses or 2 for removal for non-criminal grounds.16 There is a 16 level guideline jump between illegal re-entry after removal as an aggravated felon and re-entry after removal for a non-criminal ground.17
Domestic Violence and Other Family Crimes
Another change by the IIRIRA18 makes non-citizens convicted of even misdemeanor offenses of domestic violence, stalking, child abuse, child neglect, child abandonment removable. Also, non-citizens who violate a protective or restraining order are removable. Previously, few misdemeanors would have subjected a client to deportation.
212(c) Waivers, Suspension of Deportation,
Cancellation of Removal
The IIRIRA eliminated 212(c) waivers and suspension of deportation, and replaced them with a procedure called cancellation of removal, with far more limited eligibility.19 First and foremost, aggravated felons are ineligible for cancellation of removal.Cancellation of removal for lawful permanent residents (LPRs) requires seven years of continuous physical presence, five of them as an LPR. Cancellation for non-LPRs requires 10 years continuous physical presence and good moral character, and exceptional and extremely unusual hardship to a qualifying relative. This precludes relief for any recent conviction, as the conviction would statutorily negate the good moral character requirement.
212(h) Waivers
212(h) waivers are available to persons convicted of moral turpitude crimes, multiple convictions, first offense simple possession of 30 grams or less of marijuana, and prostitution offenses, but not to those convicted of aggravated felonies. The IIRIRA limited 212(h) waivers to LPRs who have lawfully resided in the U.S. continually for at least seven years preceding removal proceedings.20 There is no similar restriction for non-LPRs. Another incongruity is that this waiver appears to be eligible to aggravated felons, so long as they are not LPRs. Whether the Attorney General would favorably exercise discretion to such a person is another story, but the statutory language excludes aggravated felons only if they are LPRs.
Cubans
While neither the AEDPA nor the IIRIRA deal specifically with Cubans, they are mentioned here because of the unique dilemma that has arisen for the recent parolees and asylees. Cubans who are convicted of serious felonies, including all aggravated felonies, may be held indefinitely in INS custody, usually in Alabama or Georgia, after finishing their criminal sentences. By law, the INS must take into custody pending removal all non-LPRs convicted of aggravated felonies.21 The only removees Cuba is currently accepting are those specifically listed in an accord reached a few years after the Mariel boatlift of 1980. There is also a provision for parole from this indefinite detention for Mariel Cubans. Mariel Cubans go before a panel no more frequently than every six months to determine whether they still constitute a danger to the community. The INS has obtained a one-year moratorium on the mandatory detention provisions for the recent Cuban arrivals, and so is applying this "parole" provision to them, but that moratorium will expire October 1, 1997, and Congress must approve any extension of it. So when this moratorium ends, the recent immigrants face a life sentence upon conviction of an aggravated felony -- theirs or Castro's, whichever comes first.
Avenues Now Shut
The 1996 amendments to the immigration code have made representing non-citizens more difficult than ever. Virtually the only tactic available is avoiding aggravated felony convictions through sentences that do not meet the definition. It takes exceptional circumstances to convince a prosecutor and/or a judge that a person who has committed a felony deserves only misdemeanor time, but felony-length sentences (remember, including suspended time) for all garden-variety crimes make those crimes aggravated felonies. Drug trafficking convictions must be avoided at all costs, as the operative definition there is the potential federal sentence for an equivalent crime22 and most creative sentencing strategies would be to no avail.One can also seek a sentence that is not "final" under 8 U.S.C. 1101(a)(48), by asking that the judge hold onto the case, perhaps substituting pretrial supervision for a period of probation and either never setting it for sentencing, or suspending a sentence without any conditions whatsoever. A sympathetic judge may also simply fail to set a case on for sentencing.23 Pretrial diversion and pre-prosecution probation programs are likewise not "final convictions" within the meaning of the law. Finally, drug convictions where conditional discharges are given and could have been given under 18 U.S.C. 3607 had the case been filed in federal court may not result in removal. While this disposition seems to qualify as a conviction under 8 U.S.C. 1101(a)(48), the case of Matter of Manrique 24 indicates that it may not be the board's intent that the INS remove those given this ameliorative treatment, regardless of whether the disposition qualifies as a final conviction. If a client receives a sentence that counsel believes does not meet the definition of finality under 8 U.S.C. 1101(A)(48), the client should be instructed to carry with him/her an opinion letter drafted by counsel explaining why the sentence does not qualify as a final condition. Understandably, the field INS officers who go out to perform arrests do not engage in an analysis of the language in a judgment and sentence, and clients will typically be unable to articulate these reasons to an immigration judge in a removal hearing, are unable to afford counsel, and unable to find a non-profit organization to represent them free of cost. Having the letter to present the judge may prevent a removal that should not happen.
Unfortunately, however, most prior avenues to helping clients have now been shut off. It can only be hoped that with time, Congress will see the unfair and draconian effect of its new legislation, and will consider amending these acts.
Notes
1. Antiterrorism and Effective Death Penalty Act of 1996, P.L. 104-132 110 Stat. 1214, signed into law on April 26, 1996 (hereafter "AEDPA"), and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, P.L. 104-208, 110 Stat. 3009 (hereafter "IIRIRA"), signed into law on September 30, 1996.2. 8 U.S.C. 1251(a)(2)(A).
3. AEDPA 322. This section has retroactive effect.
4. Matter of Ozkok, 19 I. & N. Dec. 546 (1988) established the following test for a final conviction:
The client has plead guilty or no contest, has admitted facts sufficient to support a finding of guilt, or has been found guilty by a judge or jury;
The court has imposed some restriction on the defendant's liberty (such as paying a fine, reporting to a probation officer, refraining from some activity, or going to jail); and
If the defendant violates the terms of probation, an adjudication of guilt may be entered without further proceedings regarding guilt or innocence.
5. Section 322, IIRIRA. This definition applies retroactively.
6. Pino v. Landon, 349 U.S. 901 (1955) ("On file" status, meaning the case remains on the records of the court but no further action is normally taken, does not constitute a final conviction.)
7. Will v. INS, 447 F.2d 429 (7th Cir. 1971).
8. Matter of Thomas, I.D. #3245 (BIA 1995).
9. 1988 Anti Drug Abuse Act, Pub. L. 100-690 7342.
10. P.L. 101-649 501.
11. "The term 'crime of violence' means -- (a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." 18 U.S.C. 16.
12. P.L. 103-416 222.
13. 8 U.S.C. 1101(a)(43). This list is not all-inclusive, but merely includes the "highlights." Keep in mind that the offenses listed here are federal offenses. In state court, one should compare the elements of the state offense to the comparable federal offense to see if they are the same offense. If the state definition lacks an element present in the federal definition, the state crime may not qualify as an aggravated felony.
14. This term means the entire sentence, not just the executed portion. Section 322 of the IIRIRA defined "conviction," including the following language: "Any reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part." 8 U.S.C. 1101(a)(48)(B).
15. 8 U.S.C. 1182(a)(6)(B).
16. 8 U.S.C. 1326.
17. USSG 2L1.2(b)(2).
18. Section 350, effective September 30, 1996.
19. Section 304, effective April 1, 1997.
20. Section 348, effective September 30, 1996.
21. 8 U.S.C. 1252(a)(2)(A).
22. In Matter of L- G-, I.D. # 3254 (BIA 1995) the BIA held that a state drug conviction could be considered a "drug trafficking crime" and therefore an aggravated felony if the offense was analogous to a felony under the federal drug laws.
23. See, Pino v. Landon, 349 U.S. 901 (1955).
24. I.D. # 3250 (BIA 1995).