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CRIMINAL ALIENS UNDER THE IIRAIRA

By Abbe A. Kingston

( I ) INTRODUCTION

On April 24, 1996, Congress passed the Anti-Terrorism and Effective Death Penalty Act (AEDPA) - a bill ostensibly designed to counter terrorism. The broad sweep of AEDPA brought significant changes to the entire field of immigration law--changes that are of particular significance and affect all noncitizens. Specifically, the AEDPA expanded the offenses classified as "aggravated felonies" and the concurrent grounds of deportation.

Less than six months after the changes brought about by AEDPA, Congress again reconfigured immigration law, with the passage of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA). As with AEDPA, IIRAIRA significantly expanded the definition of an aggravated felony in INA § 101(a)(43), 8 USC § 1101(a)(43), which began as one paragraph in 1988, and now contains 21 paragraphs with many subparagraphs. With the expansion of the definition of an aggravated felony under IIRAIRA, some 50 general classes of crime are currently specifically enumerated. Today, practice under IIRAIRA requires a very close analysis of the criminal charges because seemingly all convictions considered felonies under federal law will qualify as aggravated felonies. Moreover, because recent statutory changes apply retroactively to offenses committed decades ago (that may even have been misdemeanors), past offenses may now be grounds for removal from the United States as aggravated felonies.

The aggravated felony provision was established by the Omnibus Anti-Drug Abuse Act of 1988. The initial definition included murder, any drug trafficking crime, or any illicit trafficking in firearms or destructive devices. When this legislation was first passed, its effect on existing immigration law was minimal as these offenses were deportable offenses under then existing immigration law. Today the expanded definition is a cornerstone of the INS's efforts to deport and remove permanent residents from the United States.

Any noncitizen convicted of a criminal offense will be subject to collateral consequences that affect immigration status. The harsh consequences that follow a criminal conviction--especially a conviction for an aggravated felony - mandate that immigration practitioners work closely with criminal defense attorneys in structuring pleas to avoid removal of noncitizens from the United States.

The focus of this article is to provide an overview of the consequences of criminal charges, an analysis of the aggravated felony provision, and a brief review on recent decisions interpreting the aggravated felony definition.

( II ) OVERVIEW

The IIRAIRA provides a complex set of rules and definitions governing entry, admission, deportation, and removal. To properly advise noncitizens charged with criminal offenses requires an analysis of the various definitions, INS interpretations, and judicial determinations.

( III ) ADMISSION

IIRAIRA has deleted the former definition of "entry" and replaced it with a new definition, "admission" and "admitted." Commencing on April 1, 1997, a lawful permanent resident returning to the U.S. after a trip abroad will be presumed not to be seeking admission and will not be subject to the grounds of inadmissability.

The new statute provides that a lawful permanent resident will be considered to be seeking admission to the United States upon returning from a trip abroad if he or she:

Has abandoned or relinquished status as a lawful permanent resident;

  • has been continuously absent from the United States for a period of more than 180 days;
  • has engaged in illegal activity after having departed the United States;
  • has departed the United States while in removal proceedings;
  • has committed an offense defined in INA § 212(a)(2), unless granted relief under INA § 212(h) or INA § 240A(a) cancellation of removal;
  • has not been admitted to the United States following inspection by an immigration officer.

A lawful permanent resident who falls within any of these exceptions will be deemed to be seeking admission to the United States and subject to all of the grounds of inadmissability as defined in INA § 212(a).

Prior to IIRAIRA the term "entry" provided a presumption that a lawful permanent resident upon return to the United States made an "entry." The U.S. Supreme Court in Rosenberg v. Fleuti, found that lawful permanent residents can rebut the presumption that they are making an entry if they can establish that the trip abroad was brief, casual, innocent, and not a meaningful departure interrupting their residency. The Board of Immigration Appeals (BIA) in Matter of Collado, held that "entry" has no continuing meaning under the amended INA and noted that the doctrine created by Fleuti no longer has application.

( IV ) CRIMES OF MORAL TURPITUDE

The INA provides different grounds of inadmissability and removal for crimes of moral turpitude.

  • A Noncitizen is Subject to Removal if He or She
  • is convicted of a crime involving moral turpitude for an offense committed within five years after the date of last admission into the United States for which a sentence of a year or more could be imposed; or
  • is convicted of two or more crimes involving moral turpitude after admission not arising out of a single scheme of criminal misconduct regardless of length of sentence or whether the convictions were in the same trial.
  • A Noncitizen is Inadmissable if He or She
  • is convicted of, or admits committing, or admits committing the elements of one crime involving moral turpitude (other than a purely political offense);
  • unless the offense comes within the petty offense or youthful offender exception.

( V ) PETTY OFFENSE EXCEPTION

An individual will avoid being found inadmissable on moral turpitude grounds if he or she comes within the petty offense exception which provides;

  • The person must have committed only one crime involving moral turpitude
  • The person must not have been sentenced to a term of imprisonment in excess of six months (regardless of the extent to which the sentence was ultimately executed);
  • The offense must have a maximum possible sentence of one year or less.

( VI ) DRUG OFFENSES

With very minor exceptions all controlled substance violations will result in inadmissability or removal from the United States. A noncitizen convicted of a crime "relating to" a controlled substance is deportable and inadmissable. Conviction of a drug trafficking offense as defined by federal statute will be deemed as an aggravated felony.

An exception to the controlled substance offense ground of removal exists for persons who have been convicted of only a single offense of possession for personal use of 30 grams or less of marijuana. Such a person, if they have qualifying family members, can apply for a discretionary waiver under INA § 212(h). The INS has taken the position that a conviction of simple possession of 30 grams or less of hashish comes within the exception to removal and such an offense can be waived under INA § 212(h).

( VII ) DEFINITIONS OF "CONVICTION AND TERM OF IMPRISONMENT" EXPANDED UNDER IIRAIRA

IIRAIRA § 322 amended the Immigration Act of 1990 to provide a new paragraph entitled "Definition of Conviction and Term of Imprisonment." This fundamental change in definition significantly increases the number of noncitizens subject to removal based on criminal convictions. Now, even in cases where adjudication of guilt has been withheld, a noncitizen is deemed convicted for immigration purposes if he or she has entered a nolo contendere or guilty plea or admitted sufficient facts to warrant a finding of guilt and the judge has ordered some form of punishment, penalty or restraint on the person's liberty. The IIRAIRA definition of a conviction specifically overturns the long-standing definition announced in Matter of Ozkok, by dropping what has been referred to as the third prong of the Ozkok case; this third prong held that a conviction occurred only when, upon violation of probation or court order, an adjudication of guilt could be entered with no further proceedings. For immigration purposes, whether a criminal disposition meets the definition of a conviction is now a two-part test. The term "conviction" currently means:

A formal judgment of guilt entered by a court or, if adjudication of guilt has been withheld, where:

  • a judge or jury has found the alien guilty or 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 to be imposed.

The same section that amended the definition of conviction also contains changes in the definition of term of imprisonment. IIRAIRA § 322 provides that any reference to a term of imprisonment or 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. This section has particular significance to those crimes which may fit the definition of an aggravated felony where the noncitizen is sentenced to a year or more as part of the criminal sentence.

Appropriate sentencing strategies remain an important vehicle for avoiding the harsh consequences brought about by the changed definition of sentence. As discussed below, for certain offences, obtaining a sentence of less than one year imprisonment can prevent (convictions) from being aggravated felony convictions.

The definition of sentence is "deemed to include the period of incarceration or confinement ordered by a court of law regardless of a suspension of the imposition or execution of that imprisonment or sentence in whole or part."

IIRAIRA abolished the distinction between suspension of imposition of sentence and suspension of execution of sentence. The significant portion of the sentence is the period of incarceration or confinement ordered by the court.

In Matter of S-S, the Board found a suspension of sentence for an indeterminable term not to exceed five years (under Iowa law) is a sentence to five years imprisonment for immigration purposes. The fact that the alien's sentence was suspended was found irrelevant as was the length of time actually served, even where "imposition" of sentence was suspended. The Board found the only relevant inquiry was the term to which respondent was sentenced by the court.

( VIII ) DEFERRED ADJUDICATION UNDER STATE STATUTE

In Matter of Roldan, the BIA overturned the long-standing policy on deferred adjudication in which state rehabilitation statutes were recognized. The BIA held that the definition of "conviction" provides that no effect is to be given in immigration proceedings to any state action that purports to expunge, dismiss, cancel, vacate, discharge, or otherwise remove a guilty plea or other record of guilt or conviction by operation of a state rehabilitation statute. Under Matter of Roldan, once a "conviction" occurs as defined under INA § 101(a)(48)(A), that conviction remains, notwithstanding any state rehabilitation statute. The BIA held that with the enactment of INA § 101(a)(48)(A) no immigration effect is to be given to any state rehabilitation statute.

In a similar case, Matter of Punu, the Board overturned its prior precedent decision, Matter of Ozkok, and held that the term "conviction" means:

With respect to an alien a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld where (1) 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, and (2) the judge has ordered some form of punishment or restraint on the alien's liberty to be imposed.

This fundamental change in interpretation by the Board will have a pronounced effect on a significant number of noncitizens--even those with decades-old convictions.

The Roldan decision eliminates the application of state rehabilitation statutes. The Board limited the Roldan decision to circumstances where an alien has been the beneficiary of state rehabilitation status which purports to erase the record of conviction. It does not address the situation where the alien has had his or her conviction vacated by a state court on direct appeal, or where the court determines that vacation of the conviction is warranted on the merits, or on grounds relating to a violation of a fundamental statutory or constitutional right in the underlying criminal proceedings.

The Service attempts to use Roldan to deny relief based upon any type of post conviction vacated judgment. However, the holding in Roldan is expressly limited to the application of a state rehabilitation statute. Therefore, a conviction vacated based upon ineffective assistance of counsel, or other constitutional grounds, remains a vehicle for obtaining relief from deportation.

In United States v. Tablie, the Second Circuit Court of Appeals vacated a district court decision where the court below set aside the alien's conviction on equitable grounds citing the All Writs Act as the sole jurisdictional basis for ruling. The Tablie decision cited Doe v. INS, concluding that the All Writs Act is not an independent source of jurisdiction to equitably undo a valid judgment of conviction in order to avoid deportation. The Court in Doe v. INS noted that the writ of audita querela is available only where there was a "legal defect" in the conviction and the writ is unavailable to provide relief for purely equitable reasons, stating there was no independent source in law that empowers federal courts to vacate convictions to shield defendants from deportation.

However, the writ of error coram nobis does provide relief from deportation. Coram nobis is a judicially created extraordinary remedy that, if granted, results in a judgment being vacated. The writ is a collateral attack available when no other remedy exists to secure relief from a judgment rendered where a fact existed that would have prevented the judgment had the court been aware of it and which through no negligence or fault of the defendant was not then known to the court.

( IX ) ALMOST NO RELIEF AVAILABLE FOR AGGRAVATED FELONY CONVICTION

Conviction of an offense deemed to be an aggravated felony under INA § 101(a)(43) carries drastic penalties under immigration law, including removal from the U.S. and a lifetime bar to readmission as a lawful permanent resident. A close reading of the statute with an understanding of its broad reach is required in order to provide effective representation for noncitizens convicted of crimes in the United States.

An individual convicted of an aggravated felony is ineligible for:

A. Voluntary departure, INA § 244(e);

B. Establishment of good moral character, INA § 101(f)(8);

C. Establishment of eligibility for naturalization, suspension of deportation or registry;

D. Asylum, INA § 208;

E. Withholding of removal, INA § 241(b)(3);

F. Establishment of eligibility for INA § 212(h) relief;

G. Cancellation of removal, INA § 240A(a).

A person convicted of an aggravated felony who is deported or removed and then returns to the United States without permission can be sentenced to 20 years in federal prision.

IIRAIRA § 321(b), which expanded the definition of aggravated felony under INA § 101(a)(43), applies to convictions entered "before, on, or after" the date that this Act was enacted (September 30, 1996). However, it must be noted that a distinction exists between meeting the definition of aggravated felony and the specific disability or limitation upon relief that may attach to such a conviction. Thus while the definition of aggravated felony is given retroactive application, the various effective dates of the limitations of possible relief under the INA for specific charges still offer some relief in certain rare cases. Where the individual was convicted of an aggravated felony some years ago, and where he or she now faces another minor charge which triggers an investigation by INS, there may be, in very limited circumstances, some form of relief in an immigration context. For example, since the effective date of the limitation on voluntary departure is November 18, 1988, there remains the possibility of relief for those individuals who committed an offense prior to that date. In the case of the limitation on the establishment of good moral character, which has an effective date of November 29, 1990, there may be relief for those individuals convicted of an offense (except for murder) prior to that date. In order to determine if a particular case qualifies for relief, one must make a closer reading of the IMMACT.

( X ) CLASSIFICATIONS OF AGGRAVATED FELONIES

There are two general types of aggravated felonies contained within INA § 101(a)(43):

  • Category crimes, deemed aggravated felonies regardless of sentence;
  • Sentence crimes, which are those aggravated felonies that require an imposed sentence of at least one year and include the broad category of crimes of violence, theft, burglary, forgery and offenses relating to obstruction of justice and perjury.

Category Crimes
A list of aggravated felonies is broadly defined in INA § 101(a)(43). The definition of aggravated felony includes "an offense described in this paragraph whether in violation of Federal or State law and applies to such an offense in violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years." The broad reach of the definition includes conduct which might not sound aggravated to a criminal defense attorney, but which will nevertheless incur harsh consequences under immigration law. Even a state misdemeanor can be an aggravated felony if it meets the federal definition of an aggravated felony.

Sentence Crimes
Under the amended definition contained in IIRAIRA, the following crimes (even if classified as misdemeanors under state law) will be considered aggravated felonies:

  • A crime of violence (as defined in Section 16 of Title 18 of United States Code, but not including a purely political offense) for which the term of imprisonment imposed (regardless of any suspension of imprisonment) is at least one year;
  • a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment imposed (regardless of any suspension of such imprisonment) is at least one year;
  • an offense (i) which either is falsely making, forging, counterfeiting, mutilating, or altering a passport or instrument in violation of Section 1543 of Title 18, United States Code, or is described in Section 1546(a) of such title (relating to document fraud) and (ii) for which the term of imprisonment imposed (regardless of any suspension of such imprisonment) is at least 12 months, except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien's spouse, child, or parent (and no other individual) to violate a provision of this Act;
  • an offense relating to commercial bribery, counterfeiting, forgery, or trafficking in vehicles, the identification numbers of which have been altered for which the term of imprisonment is at least one year;
  • an offense relating to obstruction of justice, perjury or subornation of perjury, or bribery of a witness, for which the term of imprisonment is at least one year;
  • An attempt or conspiracy to commit an offense described in this paragraph.

( XI ) SPECIFIC OFFENSES

  • Crimes of Violence

The definition of an aggravated felony involving a crime of violence has dramatically changed under IIRAIRA. Under Title 18, Section 16 of the United States Code, a crime of violence is defined as:

  • An offense that has as an element the use, attempted use, or threatened use of physical force against, or
  • 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.

A state offense meeting the federal definition of a crime of violence, where the sentence imposed regardless of any suspension of imposition or execution of sentence of one year or more, will meet the definition of aggravated felony under INA § 101(a)(43)(F).

  • Felony Drunk Driving

The Board of Immigration Appeals in Matter of Magallanes-Garcia, held that an alien convicted of aggravated driving while under the influence and sentenced to two and a half years in prison was convicted of a crime of violence within the meaning of INA § 101(a)(43)(F), because the conviction involved a substantial risk of physical force against the property or person of another as defined by 18 USC §16. It appears now that the INS considers a felony DUI conviction with a sentence of one year or more to be an aggravated felony and is deporting or removing long-term permanent residents from the U.S. without any possibility of relief.

In the Matter of Puente-Salazar, the Board, en banc, found Mr. Puente's third conviction for driving while intoxicated with a sentence of five years in prison, under a Texas statute, was a "crime of violence" and meets the definition of an aggravated felony. The Board citing the Matter of Magallanes-Garcia held that:

By its nature, operating a motor vehicle, in a public place while under the influence involves a substantial risk that physical force against the person or property of another may be used in the commission of the offense and that such a crime, when a felony under Texas law, constitutes an aggravated felony.

C. Aggravated Driving Under the Influence - Moral Turpitude

The BIA, in the Matter of Lopez-Meza, held that convictions of aggravated driving under the influence are convictions for crimes involving moral turpitude under INA § 237(a)(2)(A)(ii). Mr. Lopez was convicted of multiple offenses under an Arizona statute for aggravated driving under the influence and was sentenced concurrently to four months in custody and five years of probation. The BIA reviewed the concept of moral turpitude and found that while crimes of moral turpitude often involve evil intent, such a specific intent is not a prerequisite to finding a crime involves moral turpitude. The Board noted, "while it is generally the case that a crime that is 'malum in se' involves moral turpitude and that a 'malum prohibitum' offense does not, this categorization is more a general rule than an absolute standard."

The Board decision further provides that a person convicted of DUI while driving with a suspended or revoked licence "commits a crime so base and so contrary to the currently acceptable duties that persons owe to one another and to society in general that it involves moral turpitude." The BIA in the Lopez-Meza decision expands the offenses that can result in removal from the United States.

  • Arson

The BIA in Matter of Palacios-Pinera, ruled that a state arson conviction comes within the meaning of an aggravated felony. The BIA noted that an offense qualifies as a crime of violence under the statutory definition if either:

  • Physical force is an element of the crime, or
  • The nature of the crime (as demonstrated by the generic elements of the offense) must be that "its commission ordinarily would present a risk that physical force would be used against the person or property of another irrespective of whether the risk develops or harm actually occurs."

In very broad terms, the BIA has said that an arson offense comes within 18 USC § 16(b) as a crime of violence if it has the potential of resulting in harm.

  • Involuntary Manslaughter

The BIA in Matter of Alcantar, found a conviction for involuntary manslaughter to be a crime of violence and an aggravated felony as defined in INA § 101(a)(43)(F). The BIA held that an offense meets the definition of a crime of violence under 18 USC § 16(b), if the offense is a felony and if the "nature of the crime as-elucidated-by the generic elements of the offense-is such that its commission would ordinarily present a risk that physical force would be used against the person or property of another," irrespective of whether the risk develops or harm actually occurs.

The BIA in Alcantar cited United States v. Springfield, where the Ninth Circuit Court of Appeals found a federal conviction for involuntary manslaughter constituted a "crime of violence." The Springfield decision found that Congress did not intend to limit crimes of violence to crimes of specific intent, and held:

Since no culpability level is prescribed in this section, the applicable state of mind that must be shown is at a minimum 'reckless', i.e., that the defendant was conscious of but disregarded the substantial risk that the circumstances existed.

  • Criminal Contempt

The BIA in Matter of Ahmad Aldabesheh, found a conviction for criminal contempt in the first degree under New York Penal Law with a sentence to imprisonment of at least one year is a conviction for a crime of violence under 18 USC § 16(b), thus rendering it an aggravated felony under INA § 101(a)(43)(F). The Alien, Ahmad Aldabesheh, was subject to removability under INA § 237(a)(2)(E)(ii) for having been enjoined under a protection order and having been determined to have engaged in conduct in violation of that order, which involves protection against credible threats of violence, repeated harassment, or bodily injury to the person for whom the protection order was issued. The New York Penal Law states, in pertinent part, that a person is guilty of criminal contempt in violation of a duly served order of protection if he or she:

intentionally places or attempts to place a person for whose protection such order was issued in reasonable fear of physical injury, serious physical injury or death by displaying a deadly weapon, dangerous instrument or what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm or by means of a threat or threats.

  • Criminally Negligent Child Abuse

The BIA held in Matter of Sweetser, that a conviction of criminally negligent child abuse under a Colorado statute was not an aggravated felony under INA § 101(a)(43)(F). In reaching its decision the Board concluded that the respondent was convicted under a statute that is divisible, meaning it encompasses offenses that include as an element the use, attempted use, or threatened use of physical force against the person or property of another, as well as offenses that do not include such elements. The BIA held that for purposes of determining whether an offense is a crime of violence, as defined in 18 USC §16(b), it is necessary to examine the criminal conduct required for conviction, rather than the consequences of the crime, to find if the offense, 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."

  • Sexual Abuse of a Minor

In the Matter of Rodriguez-Rodriguez, the BIA held that sexual abuse of a minor was an aggravated felony relying upon a broad definition of "sexual abuse" contained in 18 USC § 3509(a)(8). Mr. Rodriguez was convicted under a Texas statute of indecency with a child by exposure and sentenced to ten years imprisonment. The Texas statute defined the offense as (1) engaging in sexual contact with the child or (2) exposing genitals knowing the child is present with the intent to arouse or gratify the sexual desire of any person.

The decision notes that sexual abuse of a minor need not involve sexual contact, and sexual abuse of a minor includes lascivious exhibition of the genital pubic area of a person.

  • Statutory Rape

Recent decisions conflict as to whether statutory rape is considered a crime of violence.

The BIA in Matter of B held that a conviction for statutory rape is a crime of violence even if the sexual act was consensual, finding that a 14-year-old could not give meaningful consent. Thus sexual intercourse with minor is a crime of violence because it necessarily involves force or the threat of force.

The Seventh Circuit Court of Appeals in Xiong v. INS examined a Wisconsin statute which makes it a felony to have sexual contact or sexual intercourse with a person who has not attained the age of 16 years. In Xiong, the alien was 18 years old and had engaged in consensual intercourse with his 15-year-old girlfriend. The Seventh Circuit overturned the BIA decision which found the alien removable--having been convicted of an aggravated felony, to wit, a crime of violence. The decision in Xiong made note that the Wisconsin statute "covers a lot of ground" and does not per se, describe a crime of violence. The decision in part states:

When the statutory definition of a criminal offense encompasses conduct that does not constitute a crime of violence as well as conduct that does constitute a crime of violence, an immigration judge may not simply categorize all conduct covered by the offense as a crime of violence...If the IJ had considered the facts described in the complaint he would have found that the conduct of which Xiong was convicted consisted of consensual sex between a boyfriend and his fifteen-year-old girlfriend. Absent a substantial age difference, this conduct did not, "by its nature, involve a substantial risk [of] physical force."

A very close reading of these two cases is needed in order to distinguish them. Perhaps the main difference is the relative ages of the parties.

  • Misdemeanor Theft

In United States v. Taylor, the Third Circuit Court of Appeals held that a state misdemeanor theft conviction, with a one-year sentence imposed, constitutes an aggravated felony if the state offense meets the elements of burglary under the federal definition under 18 USC § 924(e).

  • Accessory After the Fact

In Matter of Batista-Hernandez the Board held that "accessory after the fact" under 18 USC § 3 to a controlled-substance offense constituted "an offense relating to obstruction of justice" within the meaning of INA § 101(a)(43)(S) and results in an aggravated felony conviction if the term of imprisonment imposed is at least one year. The BIA determined that 18 USC clearly "relates to obstruction of justice" because it criminalizes actions knowingly taken to "hinder justice" or prevent another's apprehension, trial or punishment.

  • Misprison of Felony

In Matter of Espinoza-Gonzalez, the Board found "misprison of a felony" is not an offense relating to obstruction of justice. Pursuant to 18 USC § 4, misprison of a felony is defined as follows:

Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civic or military authority under the United States, shall be fined under this title or imprisoned not more than 3 years or both.

Elements of the crime of misprison of a felony are that the principal committed and completed the felony alleged and that the defendant, having full knowledge of that fact, failed to notify that authority and took an affirmative step to conceal the crime. The BIA distinguished its decision in Matter of Batista-Hernandez where it held that a conviction under 18 USC § 3 (accessory after the fact) constitutes a conviction for an aggravated felony because that section criminalizes actions knowingly taken to "hinder or prevent [another's] apprehension, trial or punishment." The BIA distinguished the two decisions, finding the federal crime of accessory after the fact in 18 USC § 3 requires an affirmative action knowingly undertaken to hinder or prevent another's apprehension, trial or punishment, while noting that 18 USC § 4 does not reference the specific purpose for which the concealment must be undertaken.

The BIA noted that inquiry is limited to the elements of the crime as provided in the statue and relevant case law finding, that the elements of misprison of a felony are too attenuated from the elements of the crimes of obstruction of justice to fall within the ambit of INA § 101(a)(43)(S).

  • Fraud Convictions Involving Less Than $10,000

The Ninth Circuit Court of Appeals in a recent decision found a guilty plea to fraud for under $10,000 supports removal for an aggravated felony conviction where the overall scheme caused losses of more than $10,000. In Soveiti v. INS, the alien, a lawful permanent resident, pled guilty to a single count of a multi-count indictment for fraud charging him with submitting a fraudulent payment of $2,605 to the victim; and he admitted in his plea agreement that he obtained in excess of $500,000 as a result of a scheme to defraud various banks. The Ninth Circuit decision upheld the BIA interpretation that the aggravated definition requires only that a conviction "involve" a fraud that resulted in a loss exceeding more than $10,000 and rejected the argument that the $10,000 loss must be based on the conviction itself. The decision in Soveiti notes that the definition of an aggravated felony under INA §101(a)(43)(M) requires only a conviction for an offense that "involves" fraud in which the loss to the victim or victims is more than $10,000.

  • Attempted Fraud--No Loss to Victim

The BIA in Matter of Onyido, held that a case involving an attempted fraud of $15,000 in which there was no actual loss qualified as an aggravated felony. The conviction in Onyido arose out of an unsuccessful scheme to defraud an insurance company of $15,000 in settlement of a false "slip and fall" personal injury case. Onyido argued (unsuccessfully) that he was not deportable because the insurance company suffered no loss. The BIA found:

The fact that the respondent failed to obtain the money is of no consequence under Section 101(a)(43)(U) of the Act, which prescribes deportability as an aggravated felon for aliens convicted of an attempt or conspiracy to commit an offense described in Section 101(a)(43) of the Act. In view of this conclusion we need not address at this time the Immigration Judge's additional finding that the respondent is also deportable as an aggravated felon under Section 101(a)(43)(M)(i), as an alien convicted of a fraud or deceit in which the loss to the victim exceeds $10,000.

( XII ) POSSIBLE 212(c) RELIEF

Prior to AEDPA, discretionary relief was available to lawful permanent residents who had an unrelinquished domicile in the United States for more than seven years. This form of relief for lawful permanent residents was available for crimes of moral turpitude and narcotic offenses.

The AEDPA § 440(d) amended the INA § 212(c) and eliminated the waiver for lawful permanent residents convicted of aggravated felonies, drug related offenses, certain firearms offenses, and certain crimes of moral turpitude. In Matter of Soriano, the Board held that AEDPA § 440(d) did not have retroactive application to petitions filed prior to April 24, 1996, the effective date of AEDPA. The Attorney General then vacated the decision of the BIA and held that the bar to relief under the amended INA § 212(c) applies to all applications pending prior to April 24, 1996 (the effective date of the amendments).

There have been a significant number of decisions reviewing the retroactive application of AEDPA § 440(d), district court habeas corpus jurisdiction, and the continued availability of INA § 212(c) relief to certain permanent residents. For example, in a recent decision Magana-Pizano, the Ninth Circuit reviewed the retroactive application of AEDPA § 440(d), and the habeas corpus jurisdiction of the district court.

In Magana-Pizano, the alien entered the United States in 1977, as a five year old child. In February 1995 he pleaded nolo contendere to the charge of being under the influence of cocaine and methamphetamine. Mr. Magana was placed in INS proceedings on May 17, 1996, with the issuance of an Order to Show Cause. Mr. Magana conceded deportability as a result of the drug conviction.

By the time of the deportation hearing, the enactment of AEDPA § 440(d) amended INA § 212(c) to eliminate discretionary relief for aliens convicted of most drug-related crimes, including Mr. Magana's charge. Despite being placed in proceedings almost one month after the passage of AEDPA, Mr. Magana sought relief under INA § 212(c). The immigration judge pretermitted his application for relief and entered an order of deportation. The BIA upheld the decision of the immigration judge based upon the opinion in Matter of Soriano. Mr. Magana filed a petition for review of the BIA decision with the Ninth Circuit.

Mr. Magana also filed a petition for a writ of habeas corpus pursuant to 28 USC § 2241 in the United States District Court for the District of Arizona. In his habeas petition he argued that the BIA's decision and interpretation of AEDPA § 440(d) violated the Equal Protection Clause of the United States Constitution. The district court dismissed the complaint for lack of jurisdiction, concluding that AEDPA § 401(e) eliminated the statutory basis for habeas review for aliens in custody for deportation. An appeal was filed with the United States Ninth Circuit Court.

The Ninth Circuit consolidated both matters on appeal. The matter reached the United States Supreme Court; the Court remanded the matter for further consideration in light of Reno v. American-Arab Anti-Discrimination Committee, which was decided after the issuance of the initial Magana-Pizano decision.

The Magana-Pizano decision addressed several issues and held:

  • Although AEDPA repealed INA § 106(a)(10) neither AEDPA nor IIRAIRA expressly repealed the statutory habeas corpus relief pursuant to 28 USC §2241. Thus, habeas corpus remains available under 28 USC § 2241;
  • AEDPA § 440(d) cannot be applied to deportation cases pending on the date AEDPA became law (April 24, 1996);
  • AEDPA § 440(d) does apply to aliens who entered pleas prior to AEDPA's enactment, but were not placed in proceedings prior to April 24, 1996;
  • The decision specifically leaves open the possibility that under a specific factual showing that a plea was entered in reliance on the availability of a discretionary waiver under INA § 212(c) a petitioner may be able to establish that AEDPA § 440(d) has an impermissible retroactive application.

The Magana-Pizano decision is significant because it opens the possibility of INA § 212(c) relief for aliens convicted prior to the enactment date of AEDPA § 440(d), but who were not placed in proceedings until after April 24, 1996.

( XIII ) CONCLUSION

The INS continues to remove record numbers of lawful permanent residents who have been convicted of criminal offenses in the United States. A mandatory detention program prevents posting bond in most cases pending removal proceedings. Immigration lawyers must continue to bring challenges to recent Board of Immigration Appeals decisions that expand the groups of noncitizens subject to removal.

        

Notes

1. Abbe Allen Kingston with the firm of Kingston, Martinez & Hogan, has practiced immigration law in Santa Barbara for 25 years. He has been certified by the California State Bar as an Immigration Law Specialist. The primary focus of his practice is the defense of criminal aliens in removal proceedings. He earned his bachelor's degree in electrical engineering from the University of California at Santa Barbara, and his law degree from Loyola Law School in Los Angeles. Mr. Kingston has published several law review articles and is a frequent lecturer on immigration related matters.

2. Anti-Terrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (hereinafter AEDPA).

3. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Div. C of the Omnibus Appropriations Act of 1996 (H.R. 3610), Pub. L. No. 104-208, 110 Stat. 3009 (hereinafter IIRAIRA).

4. Omnibus Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690 Subtitle J, 102 Stat. 4181.

5. Immigration and Nationality Act of 1952, Pub. L. No. 82-414, 66 Stat. 163 (codified as amended at 8 USC §§ 1101 et seq.) (hereinafter INA), INA § 101(a)(13)(C).

6. INA § 101(a)(13)(C)(i-vi), 8 USC § 1101(a)(13)(C)(i-vi).

7. Rosenberg v. Fleuti,(8)

8.

9. Matter of Collado,(10)

10.

11. INA § 237(a)(2)(A), 8 USC § 1227(a)(2)(A).

12. INA § 212(a)(2)(A), 8 USC § 1182(a)(2)(A).

13. INA § 212 (a)(2)(A)(ii), 8 USC § 1182(a)(2)(A)(ii).

14. INA § 212 (a)(2)(A)(i)(II); INA § 237(a)(2)(B).

15. 18 USC § 924 (a)(2).

16. INA § 237(a)(2)(B)(i), 8 USC § 1227(a)(2)(B)(i).

17. INS General Counsel Legal Opinion 96-3 (April 23, 1996), also 21 USC § 802(16), defines marijuana to include all parts of the cannabis plant, including hashish.

18. Immigration Act of 1990(19)

19. -

20. Matter of Ozkok, 19 I&N Dec. 546 (BIA 1988).

21. INA § 101(a)(48).

22. INA § 101(a)(48)(B), 8 USC § 1101(a)(48)(B).

23. Matter of S-S, 21 I&N 900 (BIA 1997).

24. Matter of Roldan, Int. Dec. 3377 (BIA,1999).

25. Matter of Punu, Int. Dec. 3364 (BIA 1998), the Board relied on IIRAIRA §322, which amended INA §101(a)(48)(A).

26. Matter of Ozkok, 19 I&N Dec. 546 (BIA 1988).

27. Id.

28. United States v. Tablie,(29)

29.

30. All Writs Act,(31)

31. §

32. Doe v INS,(33)

33.

34. See also Beltran-Leon v INS, 134 F.3d 1379 (9th Cir. 1998), holding that a California state court decision vacating a drug conviction pursuant to a writ of audita querela did not affect the immigration consequences of the conviction.

35. IIRAIRA provides that the definition of particularly serious crimes includes any aggravated felony for which the alien has been sentenced to an aggregate term of at least five years.

36. 8 USC § 1326(b)(2).

37. D. Kesselbrenner and L. Rosenberg, Immigration Law and Crimes, §7.4(c) at 7-68.23 (rev. ed. 1999).

38. INA § 101(a)(43), 8 USC § 1101(a)(43).

39. INA § 101(a)(43), 8 USC § 1101(a)(43).

40. 18 USC § 16.

41. Matter of Magallanes-Garcia, Int. Dec. 3341 (BIA 1998).

42. Matter of Puente-Salazar, Int. Dec. 3412 (BIA 1999).

43. Id.

44. Matter of Lopez-Meza, Int. Dec. 3423 (BIA, 1999).

45. Id.

46. Matter of Lopez-Meza, Int. Dec. 3423 (BIA, 1999).

47. Matter of Palacios-Pinera, Int. Dec. 3373 (BIA 1998).

48. Id.

49. Matter of Alcantar, 20 I&N Dec. 801 (BIA 1994).

50. Id, quoting United States v. Marzuelo, 780 F.Supp. 658 (W.D. Mo. 1991).

51. United States v. Springfield, 829 F.2d 860 (9th Cir. 1987).

52. Id.

53. Matter of Aldabesheh, Int. Dec. 3410 (BIA, 1999).

54. New York Penal Law 215.51(b)(i).

55. Matter of Sweetser, Int. Dec. 3390 (BIA, 1999).

56. 18 USC §16(b).

57. Matter of Rodriguez-Rodriguez, Int. Dec. 3411 (BIA 1999).

58. Matter of B, 21 I&N Dec. 287 (BIA 1996).

59. Xiong v. INS, 173 F.3d 604 (7th Cir. 1999).

60. Id.

61. Id, quoting 18 USC § 16(b).

62. United States v. Taylor, 495 U.S. 575 (1990).

63. Matter of Batista-Hernandez, 21 I&N 995 (BIA 1997).

64. Id.

65. Matter of Espinoza-Gonzalez, Int. Dec. 3402 (June 1999).

66. 18 USC § 4.

67. Matter of Batista-Hernandez, 21 I&N 995 (BIA 1997).

68. Soveiti v. INS, 1999 Daily Journal D.A.R. 7643.

69. Matter of Onyido, Int. Dec. 3379 (BIA 1999).

70. Id.

71. INA § 212(c).

72. Matter of Soriano 21 I&N Dec. 3289, (BIA June 27, 1996, Attorney General, Feb. 21.1997).

73. J. Ton, D. Lyster and A. Gallagher, AILA's Immigration Law Today, Vol. 19 No. 1, pg. 62, (Jan. 2000).

74. Magana-Pizano v. INS, Nos. 97-15678, 97-70384, 1999 U.S. App., (9th Cir. Dec., 27, 1999).

75. Id.

76. Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471 (1999).

77. Magana-Pizano v. INS, 152 F.3d 1213 (9th Cir. 1998).

78. Id.

 
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