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June 1999 Deportation: An Immigration Law Primer for the Criminal Defense Lawyer By William R. Maynard
"It may result also in loss of both property and life, or of all that makes life worth living.”1 Justice Brandies was referring to deportation, a sanction which is usually more severe than prison. It means permanent exile from the United States and its cultural, political, economic, and educational opportunities, and often permanent separation from family. In a criminal case, the alien defendant’s primary goal is to avoid deportation. It follows that when representing an alien, especially a lawful permanent resident with strong ties in the U.S., defense counsel must focus on “collateral” immigration consequences more than direct penal consequences. Immigration consequences will likely define the plea bargaining “bottom line” and trial strategy on possible lesser included offenses. This article is intended to guide the criminal defense lawyer through the “baffling skein of provisions”2 in the Immigration and Nationality Act (hereinafter “INA” or “Title 8”), in the wake of the 1996 amendments by the Antiterrorism and Effective Death Penalty Act (AEDPA) and Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996.3 It will outline (1) the three-step inquiry of immigration removal proceedings (formerly called “deportation” proceedings), (2) offenses which are grounds for removal of an alien from the U.S., and (3) discretionary relief from removal. Unless otherwise indicated, references are to Sections of Title 8, U.S. Code. Overview of INA Removal Proceedings -- A Three-Step Inquiry The typical immigration removal proceeding (described in §§ 1229-1229a) boils down to three questions: (1) Does a given conviction render the alien “removable”? Two INA provisions, § 1101(a)(43)(aggravated felony) and § 1227(a)(2)(general criminal grounds for removal), answer this question. (2) Is the alien eligible for discretionary relief from removal? There are several forms of “discretionary relief” in the INA, but by far the most useful and common is “cancellation of removal.” An alien with an aggravated felony is ineligible for virtually all forms of relief. In all other respects, the nature and duration of the defendant’s immigration status usually determine whether he is eligible for discretionary relief. A removable alien who is ineligible for relief will be removed. (3) If the alien is eligible for discretionary relief, will the immigration judge grant it? As the term suggests, a grant of relief is discretionary. The strength of the alien’s equities in the U.S. determine if he will obtain relief. If it is not granted, the alien will be removed. A removal order and denial of relief can be appealed to the Board of Immigration Appeals (BIA). But there is no right to judicial review of removal based on criminal conviction grounds4 or denial of discretionary relief such as cancellation of removal.5 The only potential remaining basis for judicial review must be claims of constitutional dimension, such as due process.6 Your Client’s Immigration Status In order to ascertain whether the client may be a candidate for relief, counsel must ascertain the nature and duration of the alien’s immigration status. Much of this article discusses a conviction’s impact on the lawful permanent resident alien. This is the most frequently encountered status. Even if a conviction renders an alien “removable,” the permanent resident alien is more likely to be eligible for relief, such as cancellation of removal.7 If the client is a lawful permanent resident, counsel should determine the dates of the client’s first entry into the U.S., first lawful admission in the U.S. in any status and, if applicable, the date permanent resident status was granted. The immigration or citizen status of the client’s immediate relatives and the dates of their lawful admissions into the U.S. may also be important factors. Finally, counsel may have to assess the client’s equities in the U.S. which may include his or her history of employment, business and family ties, military service, community service, criminal record, evidence of rehabilitation, etc., to evaluate chances for discretionary relief. The client’s status may be categorized in one of four ways: (1) permanent resident, (2) temporary “non-immigrant” student, visitor, worker, (3) temporary resident, pending approval for permanent status, or (4) undocumented. On rare occasions, the foreign-born client may not realize he is actually a U.S. citizen under one of two types of provisions. He may be a derivative citizen through a U.S. citizen parent or even grandparent.8 Always ask your client whether any of his parents or grandparents were born in the U.S. or acquired U.S. citizenship prior to the client’s birth, and thereafter was physically present in the U.S. the requisite time (usually ten years, of which five must have been after having attained age 14) before the client’s birth abroad.9 Or the alien may be entitled to citizenship if one or more of his parents were naturalized before he attained the age of 18.10 With this background information, counsel can begin assessing which potential dispositions will make the client “removable,” and whether the client will be eligible for relief from removal. Criminal Grounds for Removal Removal does not always require a conviction. Some criminal-conduct grounds for removal in § 1227(a) do not require the existence of a conviction. These include immigration offenses, such as alien smuggling11 and criminal acts relating to national security12 violation of a domestic protective order13 and drug abuse or addiction.14 Since one cannot neatly package evidence of unadjudicated conduct into certified “pen packets” and copies of judgments and sentences, the INS usually relies on convictions to prove removability. A common exception, however, is evidence of immigration violations, such as marriage fraud and alien smuggling, developed by INS or Border Patrol investigations. Conviction Grounds for Removal Before reviewing the types of offenses for which a conviction can mean removal15, one must clearly define the peculiar INA meanings for (1) “conviction” and (2) “imprisonment” or “sentence,” and (3) understand BIA’s approach to categorizing offenses. “Conviction.” An INA “conviction,” includes any proceeding in which adjudication is withheld where the alien has entered a plea of nolo contendere or “has admitted sufficient facts to warrant a finding of guilty.”16 Pre-trial diversion, where there is no judicial admission of guilt, is still not a conviction. However, deferred adjudication is now a conviction for INA purposes.17 Before the 1996 amendments, federal deferred adjudication under 18 U.S.C. § 3607 for first offender simple possession of drugs, or a state counterpart, were not convictions.18 The new “conviction” definition does not recognize state rehabilitative actions which expunge, dismiss, or otherwise erase a guilty or nolo plea for first offenders who have successfully completed supervision.19 Regular adult probation is a conviction for immigration purposes, even if the alien has successfully completed his probation and had the judgment set aside.20 This new definition is broader than the pre-IIRIRA definition in Matter of Ozkok,21 because there is no express requirement that the conviction be final. Ozkok had required finality before a conviction could serve as a basis for deportation. It is no longer clear whether convictions still pending on direct appeal can lead to deportation.22 Under prior law they could not.23 “Imprisonment.” Reference to “imprisonment” anywhere in the INA includes any period of incarceration ordered by the court, even if it is suspended.24 Presto! Congress has turned a suspended sentence into an executed sentence for immigration purposes. This oxymoron expands the “aggravated felony” definition at §1101(a)(43), because many offenses were added by IIRIRA and AEDPA, only if they result in imprisonment for a specified time. The specific words of a sentence are critical, and may be influenced by counsel. A suspended sentence will typically be “imprisonment,” but “commitment” directly to community supervision is not.25 “Categorical” approach. In deciding whether an offense falls within the scope of a particular provision of § 1227(a)(2) or § 1101(a)43), the BIA consistently applies a “categorical” analysis. That is, it compares the offense described in the immigration law term to the elements of the alien’s offense of conviction, as defined by the relevant criminal statute. It then determines whether the criminal statute inherently and necessarily falls within the meaning of the immigration term. Evidentiary details and unadjudicated acts are not considered.26 When the statute under which the alien is convicted encompasses some offenses that are grounds for removal and some that are not, it is a “divisible statute” in BIA nomenclature. The BIA will examine only the “record of conviction,” e.g., the judgment, indictment, or plea transcript, to determine the precise nature of the offense of conviction.27 For example, police reports are not admissible to show whether alien’s “weapons” conviction, involved firearm or knife, but may be considered in deciding whether the alien should be granted discretionary relief, if alien is removable.28 The same categorical analysis is usually applied in federal sentencing based on prior convictions.29 Retroactivity. The aggravated felony was expanded effective September 30, 1996.30 Since ex post facto protection does not apply to civil removal proceedings, an alien may suddenly be deportable because of the change in law.31 Thus, an alien admitted into the U.S. in 1980 with a 1990 conviction and one-year suspended sentence for theft, became removable when his offense became an aggravated felony with the immigration law amendments of September 30, 1996. As a practical matter, an alien with an ancient aggravated felony may avoid detection for years. INS priorities are to proceed against aliens as recent criminal conduct brings them into the “system.”32 Categories of Convictions The types of offenses which can lead to removal are set out in § 1227(a)(2) and by reference, § 1101(a)(43)(aggravated felony). The INA divides them into roughly five categories: (1) aggravated felonies, (2) crimes involving moral turpitude, (3) crimes “related to” controlled substances, (4) firearms crimes, and (5) miscellaneous. Ironically the very arbitrariness of these five categories is a key to defending the alien criminal defendant from removal. Conceptually, the offenses within these five INA categories are defined by reference to a number of overlapping, arbitrary criteria. By altering one or more of these criteria with plea bargaining, a verdict on a lesser included, or at sentencing, counsel may alter the application of § 1227(a)(2) and enable the alien defendant to avoid removal. In effect, these definitional criteria become tools in defense counsel’s search for “INA lesser included offenses.” The first priority is to avoid an aggravated felony. The next, if possible, is to avoid the other removal grounds in § 1227(a)(2). There is no shortcut to “understanding” them. Counsel must simply study and apply §§ 1101(a)(43) and 1227(a)(2) one case at a time. These possible “INA lesser included offenses” are mentioned below in connection with corresponding removal grounds. The criteria for finding “INA lesser included offenses” include: (1) the generic label of the offense, e.g., “theft;” (2) the specific criminal statute of conviction; (3) the length of the imprisonment actually imposed (keeping in mind that under § 1101(a)(48)(B) “imprisonment” includes suspended sentences); (4) the maximum imprisonment which could have been imposed; (5) the amount of loss in certain fraud and theft offenses; (6) the date of commission of the offense in relation to the date of the alien’s admission into the U.S.; and, (7) the number of convictions. The aggravated felony, defined at §1101(a)(43)(A)-(U), must be avoided at all costs. It means certain and usually swift order of removal because the alien is not eligible for most discretionary relief.33 It is also the most difficult to avoid, because it includes most felonies and even some misdemeanors. The term’s definition is now two pages long and includes scores of common and obscure offenses, and attempt or conspiracy as to all of them.34 Some warnings and suggestions follow, keeping in mind that the offenses are defined by reference to the seven criteria mentioned above. Reference to specific criminal statutes. Where an offense is defined by reference to specific statutes counsel must study the referenced statutes, which include in Title 18, U.S. Code, § 922 (firearms offenses), §§1957-58 (money laundering), § 16 (“crimes of violence”), § 924(c) (“drug trafficking crimes”), and §§ 1543, 1546(a) (document fraud), to name a few. A plea bargain to an equally serious, yet different offense, which is not listed in § 1101(a)(43), may not be an aggravated felony. “Drug trafficking crime.” The BIA treats a state drug offense as a “drug trafficking crime” under § 1101(a)(43)(B) only if its statutory elements are such that it would have been a felony under Title 21, U.S. Code, if the conviction had been in federal court.35 Thus, for immigration purposes, felony drug possession without intent to distribute is not an aggravated felony. Federal criminal sentencing jurisprudence, in contrast to BIA, treats any drug felony as an aggravated felony, regardless of whether it involves intent to distribute.36 If a state drug offense is not an aggravated felony, it will still be grounds for removal under § 1227(a)(2)(B)(i), offenses “related to controlled substances.” But at least the alien may be eligible for discretionary relief. “Theft” and “crimes of violence.” Sections 1101(a)(43)(F) and (G) include theft and “crimes of violence,” as defined in 18 U.S.C. § 16, for which a sentence of at least a year is imposed.37 Recall that “imprisonment” includes suspended sentences.38 A suspended 1-year sentence for misdemeanor theft may thus be an aggravated felony. “Theft” presumably has a common law or common usage definition. This generic label may not include temporary conversion of property such as unauthorized use of a motor vehicle.39 The term “crime of violence” at 18 U.S.C. § 16 is broad and vague. It includes an offense involving the “use, attempted use, or threatened use of force,” and even conduct creating a “substantial risk” of physical force against the person or “property” of another. Intent to use force is not required. Because negligent involuntary homicide involves “substantial risk” of force, it is a “crime of violence” under 18 U.S. § 16, and thus an aggravated felony, provided a sentence of a year imprisonment is imposed (regardless of suspension).40 If a sentence of at least a year of confinement is imposed (regardless of suspension), felony DWI is an aggravated felony under the “substantial risk of force” definition in 18 U.S.C. § 16 defining “crime of violence.”41 According to this logic, even misdemeanor DWI may be an aggravated felony if the requisite year of imprisonment is imposed (regardless of suspension). To avoid subsections (F) and (G) of 1101(a)(43), and other provisions requiring a year’s “imprisonment,” ((R) and (S)), counsel must avoid a sentence (executed or suspended) of at least a year. Defense counsel must convince the prosecution (and the client) that a jail sentence, even as much as 364 days, is an appropriate disposition, even if an option is probation with a longer, suspended sentence. Alternatively, counsel may be able to influence the precise language the judge uses in the judgment and sentence. Some deferred adjudication or regular probation sentences may simply impose a fine and a period of supervision, without reference to imposed and suspended imprisonment. The particular language of the court’s sentence will determine whether any imprisonment is imposed.42 ‘Amount of loss’ crimes. Section (M) includes fraud and tax offenses involving a loss of over $10,000. Considering the strict “categorical approach” by which the BIA considers only the elements of the count of conviction, a plea to a discrete substantive offense involving less than $10,000, regardless of the punishment, may keep the offense from being an aggravated felony. “Offense relating to . . .” Subsections 1101(a)(43)(Q)–(T) include offenses “relating to” a long checklist of offenses such as perjury, bribery, obstruction of justice, bail jumping in a felony case, etc. (Be careful not to confuse these provisions with offenses “relating to controlled substances” in § 1227(a)(2)(B).) “Relating to” is broad language. For example, accessory after the fact is an aggravated felony under § 1101(a)(43)(S) because it is “relating to obstruction of justice.”43 Misprision of a felony used to be, and may still be one of the few commonly available bargained for felonies which is not “aggravated.” It does not appear to be included in § 1101(a)(43), but words “relating to” arguably puts misprision at risk under subsection (a)(43)(S). Misprision41 includes an element of concealing, although not nearly as involved as accessory after the fact. The BIA has consistently held before that misprision of a drug felony is not sufficiently “related to” an underlying drug crime to fall within the scope of § 1227(a)(2)(B).45 Since (S) and (R) require imposition of a year of imprisonment, a sentence of 364 days or less will keep the offense from being an aggravated felony. Bail jumping, (Q) and (T), is qualified by the potential sentence for the underlying felony for which the alien failed to appear. Crimes Involving Moral Turpitude (CIMT) “CIMT” is the INS acronym for “crimes involving moral turpitude.” Conviction for a CIMT can lead to removal under either one of two situations, set out in subparas. (i) and (ii) of § 1227(a)(2)(A), they being one serious CIMT within five years of an alien’s admission or two CIMTs at any time. A single CIMT. Section (a)(2)(A)(i) provides for removal for (1) conviction of one CIMT, (2) punishable by at least one year imprisonment, (3) committed within five years of the alien’s admission into the U.S. If the alien’s admission into the U.S. was more than five years before commission of the crime, a single count CIMT conviction will not lead to removal. The date of conviction need not occur within five years of admission. “Admission” date. An “admission” does not include a lawful resident alien returning from a brief and innocent departure to an unrelinquished U.S. domicile.46 But if an alien’s departure involves criminal activity it is not innocent and the re-entry is an “admission” restarting the 5-year clock of subsection (a)(2)(A)(i), regardless of how long the alien has resided in the U.S. Anything that moves the offense of conviction outside the 5-year period will avoid removal. If the CIMT can be alleged as a continuing offense, the date of its commission may be negotiable and may be charged outside the 5-year time frame. Or another crime (not raising a different basis for removal) outside the 5-year period may be substituted for the original charge. “Punishable.” Since the operable word is “punishable” rather than “punished,” one-year misdemeanors may fall under (a)(2)(A)(i), but not misdemeanors punishable by no more than 6-months’ imprisonment. Removal may be avoided by bargaining a 1-year misdemeanor down to a less serious grade of offense, for example, punishable by no more than six months’ confinement, even if it means the client has to serve substantial jail time. Conviction of two CIMTs. Subpara. (ii) of § 1227(a)(2)(A) provides for removal at any time, regardless of actual or potential punishment, for (1) conviction of two crimes involving moral turpitude, (2) not arising out of the same scheme. Two counts of shoplifting punished by small fines may mean removal. “Scheme.” “Scheme” as used in subpara. (ii), has no precise definition and the BIA historically has tended to construe it narrowly, thus making more aliens deportable. Needless to say, it is construed more narrowly than “relevant conduct” in federal sentencing.47 For example, the BIA has held that a false credit card scam arose out of more than a single “scheme” because it involved more than a single card, act, and distinct offense.48 In contrast, it clearly would have been within the same “scheme” or “course of conduct” for criminal sentence under U.S. Sentencing Guideline 1B1.3. In the Second, Third, and Ninth Circuits, courts have overruled BIA’s position and held that if several crimes were all planned at one time they “arise out of the same scheme” for INA purposes.49 But with the end of judicial review, BIA’s view may prevail in these circuits. Whenever possible, counsel should try to bargain multiple-count charges down to a single count, even if it means more jail time, to avoid removal under (a)(2)(A)(ii). “Moral turpitude.” In determining whether an offense involves “moral turpitude” the BIA again uses a “categorical approach.” It considers only what the elements of the statute of conviction necessarily and inherently entail, without regard to the factual details and context of the alien’s misconduct. Generally, a crime entails “moral turpitude” if it requires criminal intent or intrinsically immoral behavior.50 The term malum in se communicates a general sense of its meaning. Serious crimes against persons such as intentional or reckless homicide, aggravated assault, assault causing injury involve turpitude. The BIA had drawn a line between reckless and negligent manslaughter, with the latter not involving moral turpitude.51 But now any degree of manslaughter is worse, it is an aggravated felony, so Lopez no longer helps.52 Simple battery or assault, without malicious or reckless intent, and not in furtherance of another offense requiring intent, does not involve moral turpitude.53 Serious property crimes, such as theft, burglary, robbery, possessing stolen property, burglary, fraud, are CIMTs. But the following crimes do not involve moral turpitude: a temporary taking, such as “joy riding” or unlawful use of a vehicle is not;54 passing a bad check with knowledge of insufficient funds, unless the offense also requires intent to defraud;55 mere breaking and entering or destruction of property, without intent to steal or commit another intentional crime.56 Crime ‘Related To’ Controlled Substance Conviction of any crime “related to” a controlled substance, including attempt and conspiracy, except a single offense involving 30 grams of less of marijuana for personal use.57 Possession of paraphernalia is probably not included.58 Nor is misprision.59 Accessory to a drug offense is not included within this category, but worse still, it is an aggravated felony “relating to obstruction of justice,” § 1101(a)(43)(S).60 Drug Abuse or Addiction Abusing drugs at any time after admission into the U.S. is a ground for removal.61 Note that this provision does not require the existence of a conviction. Convincing evidence of drug abuse or addiction may be enough. Misprision of a felony, where the underlying felony was drug trafficking, is not a crime “related to” controlled substances.62 The same arguments that prevailed in Velasco and Castaņeda suggest it would not be an aggravated felony either. However, a recent BIA decision ruled that accessory after the fact relates to obstruction of justice and is therefore an aggravated felony under § 1101(a)(43)(S).63 Firearms Offense This includes convictions “of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying... a firearm or destructive device (as defined in Section 921(a)of Title 19) in violation of any law.”64 Attempt and conspiracy are also included. This is so broad it likely includes the misdemeanor of unlawfully carrying a weapon (UCW). However, at least simple UCW will not be an aggravated felony under § 1101(a)(43(C) and (E)(ii). Domestic Violence This includes conviction of a “domestic violence” crime or violation of a protective order.65 Again, the language of subsection (E) is so broad it likely includes virtually any type of conviction or protective order violation. No sentence of imprisonment is required. Deferred adjudication is a “conviction,” but pre-trial diversion, without a judicial admission of guilty, is not. In the protective order case, counsel must act quickly to avoid civil adjudication of an alleged protective order violation, and work for counseling, reconciliation, and rehabilitation. Counsel for the victim-spouse must be informed that the alien’s right to remain in the U.S. is at stake. Evidence of rehabilitation may discourage INS from initiating removal proceedings even if a violation has been adjudicated. Other (National Security) Crimes Section 1227(a)(2)(D) lists miscellaneous national security related criminal convictions which are removal grounds. Discretionary Relief From Removal There are six forms of relief from removal in the INA: (1) cancellation of removal (§ 1229b(a)), (2) cancellation (§ 1229b(b)), (3) political asylum (§ 1158) (4) restriction of removal (§ 1231(b)(3)), (5) voluntary departure (§ 1229c), and (6) withdrawal of application for admission (§ 1225(a))(1)) & (4)). Cancellation of removal is by far the most important and most common form of potential relief counsel will encounter. Cancellation for Permanent Residents The immigration judge may cancel removal if the alien (1) has had permanent resident status for at least five years, (2) has resided in the U.S. continuously for seven years after having been admitted in any status, and (3) has not been convicted of an aggravated felony.66 Cancellation and Adjustment to Lawful Status The immigration judge may grant this relief to any alien, even undocumented. The alien must show (1) 10 years of continuous physical presence in the U.S., (2) immediately before having been served with the INS’s removal petition, (3) good moral character (defined at § 1101(f)) during such period, (4) no conviction for an offense described in §§ 1182(a)(2), 1227(a)(2) or (3), and (5) that removal would result in “exceptional and extremely unusual hardship” to the alien’s U.S citizen or resident alien spouse, parent, or child.67 Relief under § 1229b(b) is rare, even with no conviction because of required hardship showing. Cancellation under § 1229b(b) is similar to the repealed § 1254 “suspension” of deportation. Cancellation Criteria Counsel must count back from the date of the offense to determine whether his client will have the requisite 5, 7 or 10 years of continuous residence or physical presence in the U.S. to qualify for cancellation. These time periods must occur before the alien is served with the INS removal petition, called a “notice to appear,” or when the alien commits an offense referred to in § 1227(a)(2), whichever is first.68 Hence, prolonged litigation does not enable the alien to accrue more time. The continuous physical presence requirement is also broken by an absence of over 90 days or aggregate absence of over 180 days.69 Note that only a conviction for an aggravated felony will bar a permanent resident alien from cancellation under §(a), but a conviction for any offense that refutes good moral character, such as a petty shoplifting punished by a fine, will disqualify an alien under §(b). Further, the INS may rebut an alien’s claim of good moral character by evidence of misconduct not resulting in a conviction. “Good moral character” is described at § 1101(f). Special cancellation rules apply for cancellation of removal for a battered spouse or child.70 Hardship Necessary for Cancellation Section 1229b states relief “may” be granted to an otherwise eligible alien. Although 1229b(a) does not expressly require that lawful permanent residents show extreme hardship, a favorable exercise of the immigration judge’s discretion depends upon the alien’s equities in the U.S. and ability to show under 1229b(a) that removal would cause extreme hardship, or under 1229b(b) exceptional and extremely unusual hardship, to the alien and his immediate family or citizens of lawful permanent residents.71 Mere economic hardships that typically accompany a removal are not enough. The alien bears the burden of showing hardship warranting a favorable exercise of discretion.72 The decision turns on a balance of the humane considerations in the alien’s favor versus adverse factors evidencing his undesirability as a resident.73 Favorable factors include: family ties in the U.S., long duration in the U.S. (especially since childhood), hardship removal would cause to alien and family, military service in the U.S., employment history, property or business ties, service to the community, proof of rehabilitation if there is a criminal record, other good character evidence.74 Negative factors include: evidence of other immigration violation, criminal record and its recency, nature and seriousness, circumstances surrounding the removal ground, other bad character evidence.75 Asylum The government may grant political asylum relief to aliens with viable asylum or refugee claims, even with an aggravated felony conviction.76 But this relief is also discretionary and may further be denied if the immigration judge finds, as will be likely with an aggravated felon, that the alien is “a danger.”77 There is no judicial review from the decision.78 Restriction of Removal Restriction of removal is closely related to asylum. Under § 1231(b)(3) the INS may not remove an alien to a country where his life or freedom would be threatened by political, religious or ethnic persecution. Even if there is compelling evidence that removal would lead to persecution, conviction of an aggravated felony may disqualify an alien from withholding, and will disqualify him if the aggregate sentence is at least five years of imprisonment, executed or suspended.79 Restriction of removal used to be called “withholding deportation” at former § 1253(h). Voluntary Departure and Withdrawal of Admission Application There are two other forms of “relief” from removal, but only in an almost euphemistic sense, because they require that the alien leave the United States “voluntarily,” without formal removal. They are “voluntary departure,” for which an aggravated felon again is ineligible80 and “withdrawal of application for admission.”81 They have two primary benefits. First, since the alien does not depart under a removal order, he is not subject to felony charges under §1326 (illegal re-entry after removal) if he subsequently re-enters illegally. Second, the alien technically may re-apply for admission in the U.S. without the 5-20-year bars to admission at § 1182(a)(9). Witness Cooperation As a last resort, if the client has “critical and reliable” information of criminal activity the government is investigating, cooperation can perhaps be bargained for temporary lawful status, and possibly later adjusted to permanent residency.82 But counsel must plea bargain forcefully. To be eligible, the client must not have sustained a conviction punishable by a year or more of imprisonment and this relief is available to only 250 aliens annually nationwide.83 Notes 1. Ng Fung Ho v. White, 259 U.S. 276, 284 (1922). 2. Lok v. INS, 548 F.2d 37, 38 (2d Cir. 1977). 3. Pub. L 104-132, §§ 401-443, 110 Stat. 1214, 1258-81 and Pub. L. 104-208, Div. C., 110 Stat at 3009-540 through 3009-724 respectively. AEDPA and IIRIRA were the most extensive amendments to the INA in decades. Since 1996, most criminal convictions are grounds for removal, and fewer aliens are eligible for discretionary relief from removal. As to “form,” the 1996 amendments relabeled basic INA terminology. For example, “removal” replaced “deportation,” “inadmissible” replaced “excludable,” “cancellation of removal” replaced “waiver of deportation,” etc., in the INA lexicon. The 1996 amendments also renumbered and restructured many sections of the INA. For example, grounds for removal (formerly deportation) moved from repealed § 1251 to new § 1227 of Title 8, removal proceedings, greatly restricting alien’s procedural rights, are set out in new § 1229, and “cancellation of removal” is at new § 1229b, replacing the repealed § 1182(c) “waiver of deportation.” As to substance, the 1996 amendments: (1) expanded the types of convictions and unadjudicated criminal conduct which constitute grounds for removal of an alien from the United States (see § 1101(a)(43)(defining “aggravated felony”), and § 1101(a)(48)(defining “conviction” and “imprisonment”), and 1227(a)(2)(grounds for removal). (2) restricted (a) eligibility for relief from removal (cancellation of removal under § 1229b, voluntary departure under § 1229c), (b) aliens’ procedural rights in removal hearings (§§ 1229, 1229a), and (c) judicial review of removal orders (§ 1252). 4. Section 1227(a)(2), 5. Section 1252(a)(2)(B),(C). 6. E.g., Anwar v. INS 116 F.3d 140 (5th Cir. 1997)(INS cannot divest court of jurisdiction to hear constitutional claims). 7. Section 1229b(a). 8. Section 1401, et seq. 9. Section1401 sets out how a person born outside the U.S. derives citizenship through one or more U.S.-citizen parents. Section 1409 pertains to persons born out of wedlock. Citizenship is vested by law in effect at the time of birth. Subsequent amendments to § 1401 do not affect derivative citizenship rights retroactively. Counsel must determine the relevant law at the date of birth. The INS publishes “INS Charts for Determining Citizenship of Children Born Abroad,” which are useful in determining the law in effect at a given time. For example, a person born abroad between December 24, 1952, and November 14, 1986, is a citizen if (1) one parent was a citizen, (2) the citizen parent had been physically present in the U.S. a total of 10 years before the person’s birth, (3) at least five years of which were after the parent’s age of 14. For a person born abroad after November 14, 1986, the citizen parent must have been in the U.S. only five years before birth, only two of which are after age 14. 10. Section 1431-32. 11. Section 1227(a)(1)(E))(except of immediate relatives), marriage fraud (§ 1227(a)(1)(G)), and false claim of citizenship (§ 1227(3)(D). 12. Section 1227(a)(4). 13. Section 1227(a)(2)(E)(ii). 14. Section 1227(a)(2)(B)(ii). 15. Section 1227(a)(2). 16. Section 1101(a)(48)(A). 17. In re Roldan, Int.Dec.#3377 (BIA 1999), In re Punu, Int.Dec.# 3364 (BIA 1998). 18. See Matter of Manrique, Int. Dec.# 3250 (BIA 1995). 19. In re Roldan, supra, n. 17 20. See INS v. Wilson, 43 F.3d 211 (5th Cir. 1995). 21. 19 I. & N. Dec. 546 (BIA 1988). 22. In re Punu, supra., concurring and dissenting opinions over the extent to which convictions must be “final.” However, Punu and Roldan, dealt with pleas and judicial admissions of guilt, not contested verdicts. BIA noted that it was not yet extending its holding to verdicts being contested on direct appeal. 23. Will v. INS, 447 F.2d 429 (7th Cir. 1971) (conviction on direct appeal not sufficiently final for deportation ground); Matter of Thomas, Int.Dec.# 3245 (BIA 1995) (same). 24. Section 1101(a)(48)(B). 25. See, e.g., United States v. Herrera-Solorzano, 114 F.2d 48 (5th Cir. 1997). 26. In re Victor Manuel de Fraga Teixeira, Int. Dec. 3273 (BIA 1996). 27. Id. 28. Id. 29. See e.g., Taylor v. United States, 495 U.S. 575 (1990)(in determining if prior conviction qualifies to enhance sentence for firearms offense under 18 U.S.C. § 924(e), Armed Career Criminal Act). 30. See last paragraph of § 1101(a)(43). 21. Galvan v. Press, 347 U.S. 522 (1954). 32. Telephone conversation with Joe Tavarez, Trial Attorney, INS District Counsel’s Office, El Paso, Texas, Feb. 24, 1998. 33. Section 1229b(a)(3), 1229c(a)(1). Also sentencing is enhanced for an “aggravated felon’s” illegal re-entry to the U.S. after removal. Section 1326(b)(2). 34. See Defending Immigrants in Peril, by Kari Converse, The Champion, Aug. 1997. 35. Matter of L-G-, Int. Dec. 3234 (BIA 1994)(state felony possession of over 400 grams of cocaine which did not expressly include distribution element, is not a felony under Title 21, U.S.C., and is not an aggravated felony), re-affirmed on rehearing, Sept. 27, 1995, 1995 WL 582051. 36. (In contrast to BIA rulings in Matter of L-G-, and notwithstanding the rule of lenity, federal criminal sentencing case law defines the term more broadly to include virtually any state drug felony. See United States v. Pornes-Garcia __ F.3d __ (2d Cir. 1999) 1999 WL 163594 (federal sentencing guideline definition of “drug trafficking crime” is broader than BIA’s INA definition)See, e.g., United States v. Hinojosa-Lopez, 130 F.3d 691, 693-94 (5th Cir. 1997)(agreeing with other circuits). This provision is unfortunately an oxymoron, as construed and applied in immigration prosecutions under §1326(b)(2). One assumes “trafficking” means intent to distribute, thus excluding simple possession. Not so say the circuits in criminal sentencing appeals. Note that (a)(43)(B) refers to a “drug trafficking crime (as defined in § 924(c) of Title 18).” (Emphasis added.) Section 924(c)(2), in turn, defines “drug trafficking crime” as “any felony punishable under the Controlled Substances Act. . . .” Every circuit to construe (a)(43)(B) in a prosecution under § 1326(b)(2) has held that it includes any conduct prohibited by Title 21, so long as the state has labeled it a felony. Thus simple possession of a user quantity of cocaine or heroin, a felony in Texas, becomes a “drug trafficking crime” within the meaning of subsection (B), even if it is classified as a misdemeanor under the federal Controlled Substances Act. The BIA understandably hesitates to let state labels control federal immigration policy. See Matter of L-G-, supra. In another example, although BIA has ruled that “joyriding”is not a crime of moral turpitude in removal proceedings, and has not ruled that it could be an aggravated felony, one circuit has ruled that it is, at least in the federal criminal guideline sentencing context, an aggravated felony. 37. Due to a clerical error in IIRIRA’s expansion of the definition of aggravated felony in 1996, the word “is” was omitted from (F), (G), (N), and (P) of § (a)(43). This was because the verb “is” was omitted from language amending these provisions in IIRIRA at 110 Stat. 3009-627, § 321(a)(3) of Title III, Subdiv. C of Pub.L. 104-208. 38. Section 1101(a)(48)(B). 39. Matter of H, 2 I. & N. Dec. 864 (BIA 1947)(joy riding not a permanent taking of property, thus not a crime involving moral turpitude). If it is not theft, it should not be an aggravated felony under § 1101(a)(43)(G). But see United States v. Galvan-Rodriguez, 169 F.3d 217 (5th Cir. 1999)(incredibly, ruling in the context of criminal sentencing under § 1326(b)(2) that it is a “crime of violence” under § 1101(a)(43)(F). 40. Matter of Alcantar, 20 I. & N. Dec. 801 (BIA 1994). 41. In re Magallanes, Int. Dec. 3341 (DWI 1998). 42. See Herrera-Solorzano, supra. 43. In re Batista-Hernandez, BIA Interim Dec. #3321, July 15, 1997; 1997 WL 398681 (but also ruling it is not sufficiently “related to” controlled substances to fall under § 1227(a)(2)(B) of the INA). 44. 18 U.S.C. § 4. 45. Matter of Velasco, 16 I.& N. Dec. 281 (BIA 1977). 46. New § 1101(a)(13)(A). New §1101(a)(13)(C) replaces “entry” with “admission” and codifies the “Fleuti” doctrine. Rosenberg v. Fleuti, 83 S. Ct. 1804 (1963). 47. U.S.S.G. § 1B1.3. 48. In re Adetiba, 20 I. & N. Dec. 506 (BIA 1992); Iredia v. INS, 981 F.2d 847 (5th Cir. 1993). 49. Gonzalez-Sandoval v. INS, 910 F.2d 614 (9th Cir. 1990); Nason v. INS, 394 F.2d 223 (2d Cir.), cert. denied, 393 U.S. 830 (1968); Sawkow v. INS, 314 F.2d 34 (3d Cr. 1963) An excellent article on the INA meaning of “scheme” is David Luigs, The Single-Scheme Exception to Criminal Deportations and the Case for Chevron’s Step Two, 93 Mich. L. Rev. 1105, March 1995. 50. For detailed analysis and listings of moral turpitude crimes, counsel should consult Gordon, Mailmen, & Yale-Loehr, Immigration Law and Procedure, § 71.05 (1998), or Kesselbrenner & Rosenberg, Immigration Law and Crime, App. E (1995). 51. Matter of Lopez, 13 I. & N. Dec. 725 (BIA 1971) 52. Matter of Alcantar, 20 I. & N. Dec. 801 (BIA 1994). 53. Matter of Short, 20 I. & N. Dec. 136 (BIA Matter of Perez-Contreras, 20 I. & N. Dec. 615 (BIA 1992). 54. Matter of H, 2 I. & N. Dec. 864 (BIA 1947). 55. Matter of Balao, 20 I. & N. Dec. 440 (BIA 1992). 56. Matter of N-, 8 I. & N. Dec. 466 (BIA 1959). 57. Section 1227(a)(2)(B)(i). 58. Matter of Barrett, 20 I. & N. Dec. 171, 178, n.4. 59. Matter of Velasco, 16 I. & N. Dec. 281 (BIA 1977). 60. In re Batista-Hernandez, supra. 61. Section 1227(a)(2)(B)(ii). 62. Matter of Velasco, 16 I.&N. Dec. 281 (BIA 1977); Castaņeda de Esper v. INS, 557 F.2d 79 (6th Cir. 1977). 63.In re Batista-Hernandez, Int. Dec. #3321 (BIA July 15, 1997). 64. Section 1227(a)(2)(C). 65. Section 1227(a)(2)(E). 66. Section 1229b(a). (This provision is similar to repealed “212(c)” waiver of deportation at former § 1182(c)). 67. Section 1229b(b). 68. Section 1229b(d)(1). 69. Section 1229b(d)(2). 70. Section 1229b(d)(2). 71. Matter of Coelho, 20 I. & N. Dec. 464 (BIA 1992)(§ 212(c) waiver of deportation under pre-1996 law, describing factors relevant to whether discretionary relief should be granted). 72. Matter of Coelho, Int. Dec. 3172 (BIA 1992). 73. Id. 74. Id. 75. Id. 76. Section 1158. 77. Matter of Carbelle, 19 I. & N. Dec. 357 (BIA 1987)(commission of aggravated felony justifies finding of dangerousness); Matter of U-M-, 20 I. & N. Dec. 327 (BIA 1991)(same). 78. Sections 1158(a) & (b)(2)(A). 79. Id., and see § 1101(a)(48)(B)(defining “imprisonment”) see In re Q-T-M-T-, (BIA 1996) 1996 WL 784581(under former § 1253(h), withholding deportation). 80. Section 1229c). 81. Section 1225(a)(1) and (4). 82. Sections 1101(a)(15(S), 1184(k), 1255(j). 83. Id. | |||||||||
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