by Abbe Kingston

Congress has enacted major legislation in the past two years that has expanded the immigration consequences for non-citizens convicted of crimes and also limited traditional forms of relief (waivers) available from an immigration judge.

The Anti-Terrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) have changed the traditional concepts of deportation and exclusion, broadened the scope of deportable offenses, and limited avenues of discretional relief previously available. This brief article will focus on the various grounds of removal of non-citizens from the U.S. based on criminal conviction; it will not review the discretionary relief that may be available before an immigration judge nor will it cover post-conviction remedies.

The present structure for the removal of non-citizen criminal defendants places increased responsibility on defense counsel and requires an understanding of the new rules and the definition for removal proceedings under the amended INA.

"Removal Proceedings" Replaces Former Concepts of "Exclusion" and "Deportation"
The IIRAIRA (section 240) completely restructures the procedure and definitions that govern exclusion and deportation from the United States. In proceedings commenced by the INS after April 1, 1997, the long-standing concepts and case law developed for exclusion and deportation proceedings no longer have application. The concept of "entry", which was developed through some 50 years of case law and determined whether an alien would be placed in exclusion or deportation proceedings, has been eliminated. Under the IIRAIRA, aliens who have not been inspected and admitted by an immigration officer and are deemed to be seeking admission into the U.S. and are subject to the grounds of inadmissibility under 212(a) INA regardless of when and how they entered the United States. Aliens, including lawful permanent residents, who have been inspected and admitted are subject to the deportation grounds enumerated in the newly enacted 237 INA whether or not they were properly admissible in the first place.

The IIRAIRA replaced separate exclusion and deportation hearings with a new procedure called "removal proceedings" found in section 240 INA. In removal proceedings an immigration judge determines: (1) whether section 212(a) INA bars admission to the arriving alien or individual who entered without proper inspection, and (2) whether section 237 requires removal of a properly admitted alien (including lawful permanent residents).

The new definition and application of the concept of admission has a significant effect on returning lawful permanent residents. It has become increasingly common for long-time residents to be detained at the border and denied admission based on convictions that occurred many years earlier. Recently, in Matter of Collado [Int. Dec. 333 (BIA Dec. 18, 1997)], a lawful permanent resident of the U.S. for over 25 years returned to the U.S. on April 7, 1997 after a two-week visit to his native country; he was charged with inadmissibility under section 212(a)(2) based on a 1974 conviction for sexual abuse of a minor. At the hearing, the immigration judge followed the long-established doctrine of "entry" developed by the Supreme Court in the leading case of Rosenberg v. Fleuti [374 U.S. 449, 462 (1963)], terminated removal proceedings, and held that the respondent had made only a "brief and innocent departure from the U.S."

The INS appealed the decision to the Board of Immigration Appeals (BIA) which held that the concept of "entry" and the doctrine established by Fleuti did not survive the enactment of IIRAIRA. The BIA held that a lawful permanent resident of the U.S. is to be regarded as "seeking an admission into the U.S. for purposes of immigration laws without further inquiry into the nature and circumstances of a departure from and return to this country." The significance of this ruling will be the detention and inadmissibility of returning long-time permanent residents following brief departure from the United States. Returning residents will find themselves denied admission to the U.S. for offenses that would not necessarily subject them to removal had they not departed. Exhibit A (see attached) provides an overview of the various grounds of inadmissibility and removal (deportation) for criminal-related activity.

Definition of Conviction
The IIRAIRA introduced a new statutory definition of conviction [101(a)(48)(A) INA]. The definition provides:

• 48(A) 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 --


• (i) 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


• (ii) the judge has ordered some form of punishment, penalty or restraint on the alien's liberty to be imposed.

This new definition of "conviction" expressly overrules the judicial interpretation of "final conviction" in Matter of Ozkok [19 IN. Dec. 546 (BIA 1988)]. Ozkok required that for immigration purposes, a final conviction occurred only where the judgment or adjudication of guilt may be entered if the alien violates a term or condition of probation, without the need for any future proceedings regarding guilt or innocence in the original charge. The IIRAIRA removed the so-called "third prong" of Ozkok and clarified Congressional intent so that even in cases where adjudication is "deferred", the original finding or confession of guilt is sufficient to establish a "conviction" for purposes of immigration laws.

The new definition of "conviction" significantly affects diversion cases under California Penal Code 1000.1-1000.4 which require, effective January 1, 1997, that a guilty plea or finding of guilt must be made before a case is diverted. The California statute states that in lieu of a trial, the court may grant deferred entry of judgment provided that the defendant pleads guilty to each charge and waives time for the pronouncement of judgment. The INS takes the position that an adjudication under the California diversion statute is a "final conviction" because the defendant must plead guilty and is mandated to attend a drug program.

Consequences of Criminal Pleas
There are four broad classifications of criminal activity that will result in removal proceedings brought against non-citizens. When representing non-citizens, appropriate sentencing strategies must be considered and appropriate notice as to the collateral immigration consequences of any plea must be made to the alien. The classifications are:

1) Crime of Moral Turpitude
2) Controlled Substance Violations
3) Specific INS Violations
4) Aggravated Felonies

It must be concluded that all criminal convictions will have collateral immigration consequences.

1. Crime of Moral Turpitude
Both AEDPA and IIRAIRA change the definition of a "crime of moral turpitude" [the current definition is found at (237(a)(2)(A) INA]. This results in application of three different definitions, depending on whether an alien is placed in proceedings. For the purpose of this article, only the current definitions will be discussed. Under current law [237(a)(2)(A) INA], lawful permanent residents are subject to removal proceedings if convicted of crimes involving moral turpitude if:

• (I) is convicted of a crime involving moral turpitude committed within five years or 10 years in the case of alien, provided lawful permanent resident status under section 1255(j) [informer visa] of this title after the date of admission and
• (II) is convicted of a crime for which a sentence of one year or longer may be imposed is deportable.
• (ii) Multiple convictions -- Any alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefore and regardless of whether the convictions were in a single trial is deportable.

The term "moral turpitude" is not specifically defined in the INA. The most widely accepted interpretation defines it as:

"an act of baseness, violence or depravity in the private and social duties which a man owes to his fellow men, or to society in general, contrary to accepted and customary rules of right and duty between man and man."

The Board of Immigration Appeals has followed this definition and stated that moral turpitude involves:

"conduct which is so contrary to the moral law, as interpreted by the general moral sense of the community, that the offender is brought to public disgrace, is no longer generally respected or is deprived of social recognition by good living persons." [Matter of D, In. Dec. 190 (BIA 1942)].

Prior to AEDPA, deportation was a consequence of a conviction for a crime of moral turpitude only when the actual sentence imposed was one year or more. Now the statute requires only that the maximum possible sentence be one year or more, regardless of the actual sentence imposed. This change has a significant effect on aliens convicted of crimes in California. In this state, many misdemeanors and all felonies, including any "wobbler", carry a possible sentence of one year or more. A "wobbler" offense (punishable either as a felony or a misdemeanor, but designated or reduced to a misdemeanor) carries a one-year sentence. This means any crime of moral turpitude (including a misdemeanor) with a potential sentence of one year and committed within five years of admission would be a deportable offense. The actual time served for a crime, probation or a suspension of sentence, family ties, and length of residence in the U.S. are of insignificant consequence under current law.

Prior to IIRAIRA, the harsh consequences of deportation were avoided if the imposition of a sentence was suspended and jail time imposed only as a condition of probation. The jail time imposed would not count as part of a "sentence imposed" for immigration purposes. IIRAIRA specifically changed this by defining "sentence" to include the period of incarceration or confinement ordered by a court of law regardless of the suspension of the "imposition or execution of imprisonment or sentence in whole or part" [101(a)48)(B) INA].

Petty Offenses
Section 212(a)(2)(A)(ii) provides an exception for those aliens who have committed petty offenses. An alien who has been convicted of a single crime of moral turpitude is not inadmissible so long as the maximum possible penalty for the crime is not longer than one year AND the alien is sentenced to no more than six months imprisonment. This "petty offense exception" would also apply to removal proceedings under section 237 INA, where the INS charges the respondent with inadmissibility at the time of admission for having committed a crime of moral turpitude. It is important to note that a sentence of more than six months will disqualify a non-citizen from the "petty offense exception" even where the sentencing judge suspends imposition or execution of the sentence.

2. Controlled Substance Violations
The recent amendments to the INA continue to impose severe consequences to non-citizens who are convicted of, involved with, or associated with controlled substances. The amendments have eliminated discretionary waivers that were previously available for drug-related offenses.

Prior to enactment of AEDPA, a non-citizen convicted of a drug offense or aggravated felony or found to be an addict or abuser of drugs, had the opportunity to seek relief under section 212(c) INA. AEDPA eliminated all 212(c) INA waivers relating to controlled substances in deportation proceedings. Non-citizens deportable for controlled substances, aggravated felony, and drug abuse are now barred from 212(c) INA relief.

The IIRAIRA completely eliminates 212(c) INA relief (for any type of offense) and, in its place, permits the Attorney General to "cancel removal" of inadmissable or deportable permanent residents. To be eligible a non-citizen must, under 240A(a) INA:

1) have been a permanent resident for at least five years;
2) have continuously resided in the United States for seven years after having been "admitted in any status"; and
3) not have a conviction for an aggravated felony.

Cancellation of removal has very limited application for any offense relating to controlled substances. The limited application is due to the fact that 240(A)(a) INA will not waive an aggravated felony, and almost all drug offenses beyond first conviction of simple possession are aggravated felonies.

When representing non-citizens charged with any activity relating to controlled substances, various provisions of the INA, as amended, must be examined. Non-citizens (including lawful permanent residents) can be found inadmissible under [212(a) INA], subject to removal proceedings [237(a)(2)(B) INA], or deportable under aggravated felony provisions [101(a)(43) INA].

The various provisions have overlapping applications: the INS, in removal proceedings, may charge non-citizens with being inadmissible under section 212 INA or with being deportable under section 237 INA. Removal (formerly suspension of deportation) for a controlled substance is not predicated upon any distinction between misdemeanor or felony, or the imposition of a minimum sentence of confinement.

Grounds of Inadmissibility: Section 212(a)(2)(A)(II) INA provides in part:
"a violation of (or a conspiracy or attempt to violate) any law or regulation of a state, the United States, or a foreign country, relating to a controlled substance (as defined in Section 102 of the Controlled Substances Act (21 U.S.C. 802)."

Section 212(a)(2)(c) INA provides in part:
"any alien who the consular or immigration officer knows or has reason to believe is or has been an illicit trafficker in any such controlled substance or is or has been a knowing assister, abettor, conspirator, or colluder with others in the illicit trafficking in any such controlled substance, is inadmissable."

Grounds of Removal (Deportation): Section 237(a)(2)(B) INA provides in part:
"(i) any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a state, the United States, or a foreign country relating to a controlled substance (as defined in Section 102 of the Controlled Substances Act [21 U.S.C. 802]), other than a single offense involving possession for one's own use of 30 grams or less of marijuana is deportable.

(ii) any alien who is, or at any time after admission has been a drug abuser or addict is deportable."

Aggravated Grounds of Deportation: Section 101(a)(43)(B) INA defines aggravated felony as:
(B) illicit trafficking in controlled substance as described in Section 102 of the Controlled Substances Act), including a drug trafficking crime (as defined in Section 924(c) of Title 18, United States Code).

The grounds of inadmissibility and removal (deportation) and the application of the aggravated felony definition are overlapping and apply equally to crimes of moral turpitude and other specific crimes; however, the most severe consequences occur as a result of controlled substance convictions.

The Board of Immigration Appeals has held in Matter of Davis, 20 IN Dec 536 (BIA 1992), that a misdemeanor can be an aggravated felony. The BIA held that a misdemeanor in Maryland of conspiracy to distribute a controlled substance is an aggravated felony under the INA. The BIA held that even if the underlying offense is not a felony, a conviction may still be considered an aggravated felony because it involves "illicit trafficking."

Under California law, possession for sale or any charge other than simple possession is punishable by more than a year imprisonment, and under federal law it would be considered a drug trafficking crime and defined as an aggravated felony by INS.

In a significant decision and reversal of policy, the BIA ruled in 1995 that in cases based on drug-related convictions, an alien who has been accorded rehabilitation treatment under a state statute will not be deported if the alien establishes that he or she would have been eligible for relief under the Federal First Offender Act (FFOA), 18 U.S.C. Section 3607(a), In Re Manrique, Int. Dec. 3250 (BIA May 19, 1995)].

The Manrique decision affirmed the Garberding v. INS, 30 F.3d 1137 (9th Cir. 1994) decision, which held as a matter of equal protection that a person who, had he or she been in federal criminal proceedings, would have been eligible for relief under the Federal First Offender Act, must receive the same benefit if a state court expungement is obtained even where the state expungement is not an exact counterpart of the federal statute. Under California Penal Code section 1203.4, an expungement for simple possession of a drug will not give rise to a conviction for removal proceedings.

Both the BIA and the courts have recognized that it is proper to refuse to give effect to a state statute to the extent that an expungement under state law would not have been available under the FFOA. Paredes-Urrestarazu v. United States, 36 F 3d 801 (9th Cir. 1994).

The BIA has found that a first conviction for simple possession of drugs in state court proceedings is not a aggravated felony, even if under state law the offense is deemed to be a felony (In Re L-G, Int. Dec. 3254 (BIA 1995), because under federal law conviction of simple possession is a misdemeanor.

Prior to IIRAIRA, the aggravated felony definition had multiple effective dates. However, section 321(d) INA now provides that the definition of aggravated felony covers all convictions "on, before or after the effective date." In examining controlled substance grounds, it is not what the defendant may have done, but the offense for which he or she is convicted, that gives rise to removal. Under federal law, concealing a felony is a separate crime. The BIA has held that a non-citizen is not deportable for the crime of concealing a felony because it is distinct and separate from the underlying crime that was concealed. Matter of Velasco, 16 IN Dec 281 (BIA 1977).

Marijuana Possession
A non-citizen is not subject to removal proceedings for controlled substance violation if there is only a single conviction for simple possession of 30 grams or less or marijuana [237(a)(2)(B) INA]. There is a discretionary waiver available for an applicant for admission who has a single conviction for simple possession of 30 grams or less of marijuana and meets other statutory requirements [212(h) INA].

3. Specific INS Violations
Please refer to the attached list of specific INS violations.

4. Aggravated Felonies
With the Anti-Drug Abuse Act of 1988, Congress created a new category of offenses, known as aggravated felonies, thereby creating a distinct basis for deportability under the INA. The initial definition of aggravated felony included drug trafficking, murder, and any illicit trafficking in firearms or destructive devices. Today the aggravated felony statute consists of twenty-one paragraphs, and some 50 crimes or general classes of crimes are enumerated.

The INA provides penalties for non-citizens convicted of aggravated felonies that preclude eligibility for almost all benefits under the INA. In addition, Section 324 of IIRAIRA provides for maximum penalty of twenty years for reentry after conviction and removal for an aggravated felony.

The following is a review of the definition of aggravated felony and a brief summary of some of the portions of the amended statute.

Definition of Aggravated Felony:
The definition of aggravated felony includes all state and federal convictions and now includes foreign offenses. The INS applies the amended definition to all "actions taken after the effective date" of the statute, which means the amended definition is given retroactive application under the INA. The specific amendments to the definition of aggravated felony are found in section 440(e) of AEDPA and section 321 of IIRAIRA. The current listing of aggravated felonies, as amended, is found in section 101(a)(43) INA (see Exhibit B).

CRIME OF VIOLENCE AND THEFT:
The amended act provides that crimes of violence and theft offenses, including receipt of stolen property and burglary, are aggravated felonies if the sentence imposed is at least one year, regardless of any suspension of the imposition or execution of sentence. Defense counsel should seek a sentence of 364 days or less.

The BIA in Matter of Alcantar, 20 IN Dec 801 (BIA 1994), held that involuntary manslaughter is a crime of violence, concluding that even though violence is not an essential element of the offense, the charge "by its nature" involves a substantial risk that force may be used. The BIA has taken the position that the respondent's actual conduct is not relevant in determining whether a conviction is for a crime of violence. The BIA will evaluate the category of crime to determine whether violence inheres in the offense, rather than investigating whether a respondent engaged in actual violence.

The BIA has found that a conviction for statutory rape is a crime of violence despite the argument that statutory rape includes consensual sexual relations and that violence did not inhere in the offense. Matter of B, Int. Dec 3210 (BIA 1996).

RAPE AND SEXUAL ABUSE OF MINOR
Any conviction for rape or sexual abuse of a minor is now an aggravated felony regardless of the sentence imposed.

FRAUD AND DECEITS
Crimes involving fraud may be designated an aggravated felony where the loss to the victim exceeds $10,000. Under state law the amount of loss is not always an easy determination. The amended statute does not define which crimes involve fraud or what is meant by "loss to victim."

WEAPON OFFENSES
Any non-citizen convicted of any illicit trafficking in firearms or destructive devices is subject to the aggravated felony provision. It should be noted that apart from the aggravated felony ground of removal, a non-citizen is deportable who at any time after entry is convicted under any law of "purchasing, selling, offering for sale, exchanging, using, owning, possession or carrying in violation of any law, any weapon, part of accessory which is a firearm or destructive device." (Anti-Drug Abuse Act of 1988 section 7348).

Aggravated Felonies Dependent on Sentence
The amended statutes provide that by definition the following offenses are aggravated felonies only when a sentence to imprisonment of one year or more is imposed:

1. Crime of violence
2. Theft, burglary, includes receiving stolen property
3. Commercial bribery, counterfeiting, forging, trafficking in vehicles which have VIN numbers altered
4. Bribery of witness, perjury, obstruction of justice.
5. Making, forging, counterfeiting, mutilating or altering a passport or other false documents. (There is an affirmative defense for a first offense if the noncitizen committed the offense to assist only the spouse, child or parent).

Exhibit B

The amended statue now reads:

43) The term "aggravated felony" means--

(A) murder, rape, or sexual abuse of a minor;

(B) illicit trafficking in controlled substance (as described in section 102 of the Controlled Substances Act), including a drug trafficking crime (as defined in section 924(c) of title 18, United States Code);

(C) illicit trafficking in firearms or destructive devices (as defined in section 921 of title 18, United States Code) or in explosive materials (as defined in section 841(c) of that title);

(D) an offense described in section 1956 of title 18, United States Code (relating to laundering of monetary instruments) or section 1957 of that tile (relating to engaging in monetary transactions in property derived from specific unlawful activity) if the amount of the funds exceeded $10,000;

(E) an offense described in---

(i) section 842(h) or (i) of title 18, United States Code, or section 844(d), (e), (f), (g), (h), or (i) of that title (relating to explosive materials offense);

(ii) section 922(g)(1), (2), (3), (4), or (5), (j), (n), (o), (p), or (r) or 924(b) (or (h) of title 18, United States Code (relating to firearms offenses);

(iii) section 5861 of the Internal Revenue Code of 1986 (relating to firearms offenses);

(F) a crime of violence (as defined in section 16 of title 18, Untied States Code, but not including a purely political offense) for which the term of imprisonment [is] at least 1 year;

(G) a theft offense (including receipt of stolen property or burglary offense for which the term of imprisonment [is] at least 1 year;

(H) an offense described in section 875, 876, 877, or 1202 of title 18, Untied States Code (relating to the demand for or receipt of ransom);

(I) an offense described in section 2251, 2251A, or 2252 of title 18, United States Code (relating to child pornography);

(J) an offense described in section 1962 of title 18, Unites States Code (relating to racketeer influenced corrupt organizations), or an offense described in section 1084 (if it the second or subsequent offense) or 1955 of that title (relating to gambling offenses), for which a sentence of 1 year imprisonment or more may be imposed;

(K) an offense that:

(i) relates to the owning, controlling, managing, or supervising of a prostitution business; or

(ii) is described in section 2421, 2422, 2423, of title 18, United States Code (relating to transportation for the purpose of prostitution) if committed for commercial advantage; or

(iii) is described in section 1581, 1582, 1583, 1584, 1585, or 1588 of title 18, United States Code (relating to peonage, slavery, and involuntary servitude);

(L) an offense described in---

(i) section 793 (relating to gathering or transmitting national defense information), 798 (relating to disclosure of classified information), 2153 (relating to sabotage) or 2381 or 2382 (relating to treason) of title 18, United States Code;

(ii) section 601 of the National Security Act of 1947 (50 U.S.C. 421) (relating to protecting the identity of undercover intelligence agents);

(iii) section 601 of the National Security Act of 1947 (relating to protecting the identity of undercover agents);

(M) an offense that--

(i) involves fraud for deceit in which the loss to the victim or victims exceeds $10,000; or

(ii) is described in section 7201 of the Internal Revenue Code of 1986 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000;

(N) an offense described in paragraph (1)(A) or (2) of section of 274(a) (relating to alien smuggling), 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;

(O) an offense described in section 275(a) or 276 committed by an alien who was previously deported on the basis of a conviction for an offense described in another subparagraph of this paragraph;

(P) 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, Untied States Code, or is described in section 1546(a) of such title (relating to document fraud) and (ii) for which the term of 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;

(Q) an offense relating to a failure to appear by a defendant of service of sentence if the underlying offense is punishable by imprisonment for a term of 5 years or more;

(R) an offense relating to commercial bribery, counterfeiting, forgery, or trafficking in vehicles the identification numbers of which have ben altered for which the term of imprisonment is at least one year;

(S) an offense relating to obstruction justice, perjury or subornation of perjury, or bribery of a witness, for which the term of imprisonment is at least one year;

(T) an offense relating to a failure to appear before a court pursuant to a court order to answer to or dispose of a charge of a felony for which a sentence of 2 years' imprisonment or more may be imposed; and

(U) an attempt or conspiracy to attempt to commit an offense described in this paragraph.

The terms applies to an offense described in this paragraph whether in violation of Federal or State law and applies to such offense in violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years. Notwithstanding any other provision of law including any effective date, the term applies regardless of whether the conviction was entered before, on, or after the date of enactment of this paragraph.