 |
AGGRAVATED FELONIES -- HARSH CONSEQUENCES
By Abbe Kingston
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 lawchanges that
are of particular significance to criminal defense attorneys.
Specifically, the Act expands the offenses classified as "aggravated
felonies" and the concurrent grounds of deportation.
Less than six months after the changes brought
about by AEDPA (Pub. L. No. 104-132, Stat 1214; April 24,
1996), Congress again reconfigured immigration law, with the
passage of the Illegal Immigration Reform and Immigrant Responsibility
Act (IIRAIRA or IIRIRA; Div. C. Pub. L. No. 104-208, 110 Stat
3009; Sept. 30, 1996). As with AEDPA, IIRAIRA made a significant
expansion of the aggravated felony definition. Section 101(a)(43)
INA, 8 U.S.C.§ 1101 (a)(43), which began as one paragraph
in 1988, now contains 21 paragraphs with many subparagraphs.
With the expansion of the definition of 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 U.S. as aggravated
felonies.
Aggravated felonies were also added to immigration
law by the Anti-Drug Abuse Act of 1988 which was passed at
the height of the war on drugs. 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 or charged with a criminal
offense will be subject to collateral consequences that affect
immigration status. The harsh consequences that follow a criminal
convictionespecially a conviction for an aggravated felony,
mandate a close link between defense attorneys and immigration
practitioners. It has become imperative for criminal practitioners
to expand their working knowledge of immigration law-related
issues.
Almost No Relief Available
for Aggravated Felony Conviction
Conviction of an offense deemed to be an aggravated felony
under 101(a)(43) INA 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 for a criminal attorney to provide effective
representation for noncitizens convicted of crimes in the
United States.
An individual convicted of an aggravated
felony is ineligible for:
- Voluntary departure, 244(e) INA
- stablishment of good moral character, 101(f)(8)
INA
- Establishment of eligibility for naturalization,
suspension of deportation or registry
- Asylum, 208 INA
- Withholding of removal, 241(b)(3) INA
- Establishment of eligibility for 212(h)
INA relief
- Cancellation of removal, 240(A) INA
A person convicted
of an aggravated felony is permanently inadmissable to the
United States, IIRAIRA 301(b).
Section 321(b) IIRAIRA, which expanded the definition
of aggravated felony under 101(a)(43) INA, 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/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 (see Immigration
Law and Crimes, National Immigration Project, National Lawyers
Guild).
Definitions of Conviction
and Term of Imprisonment Expanded Under IIRAIRA
Section 322 of IIRAIRA amended the IMACT 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/she has entered a nolo 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 conviction specifically overturns the long-standing definition
announced in Matter of Ozkok, 19 In. Dec. 546 (BIA 1988) by
dropping what has been referred to as the third prong of the
Ozkok case; this third prong held that conviction occurred
only when no further proceedings concerning guilt were available
upon violation of probation. For immigration purposes, whether
a criminal disposition meets the definition of a conviction
is now a two-part test. The term `conviction' currently means:
1. A formal judgment of guilt entered by a
court, OR
2. If adjudication of guilt has been withheld,
where:
b. The judge has ordered some form of punishment,
penalty, or restraint on the alien's liberty to be imposed.
(IIRAIRA 322, amending INA 101(a)(48), 8 U.S.C. 1101(A)(48)
The same section that amended the definition
of conviction also contains changes in the definition of term
of imprisonment. Section 322 of IIRAIRA 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 aggravated felony where the noncitizen is sentenced to
a year or more as part of the criminal sentence.
A stay of adjudication of guilt or deferred
adjudication of guilty will be considered a conviction even
though there is no conviction under state law where, for example
the criminal plea is later vacated and the criminal case is
dismissed. Matter of Roldan, Int. Dec. 3377 (BIA 1999); Matter
of Punu, Int. Dec. 3364 (BIA 1998). The statutory definition
of conviction provides that no effect is to be given in immigration
proceedings to a state action which purports to expunge, dismiss,
cancel, vacate, discharge or otherwise remove a guilty plea
or other record of guilt or conviction through operation of
a state rehabilitation statute.
Classifications of
Aggravated Felonies
There are two general types of aggravated felonies contained
within 101(a)(43) INA:
1. Category crimes, deemed aggravated
felonies regardless of sentence
2. Sentence crimes, which are
those aggravated felonies that require an imposed sentence
of at least one year and include the broad category of crime
of violence, theft, burglary, forgery and offenses relating
to obstruction of justice and perjury.
Category Crimes
A list of aggravated felonies as broadly defined in the
IMACT is attached as Appendix A. The definition of aggravated
felony includes "an offense described in this definition whether
in violation of Federal or State law and the law of a foreign
country for which the term of imprisonment was completed in
the previous 15 years." 101(a)(43) INA. 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.
Appendix B provides a brief summary of controlled
substance violations and their treatment as aggravated felonies.
Sentence Crimes
Under the amended definition contained in IIRAIRA, the
following crimes (even if classified as misdemeanor) will
be considered aggravated (101(a)(43) INA) :
(F) 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
(G) 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
(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, 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
(R) 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
(S) 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
(U) An attempt or conspiracy to commit an
offense described in this paragraph
Recent Decisions
Crimes of Violence
The definition of aggravated felony for crimes of violence
has dramatically changed under IIRAIRA. Under title 18, section
16 of the United States Code, a crime of violence is defined
as:
(A) an offense that has as an element the
use, attempted use, or threatened use of physical force
against, or
(B) any other offense that is a felony and
that, by its nature involves a substantial risk that physical
force against the person or property of another may be used
in the course of committing the offense (18 U.S.C. § 16)
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 101(a)(43)(F) INA.
Felony Drunk Driving
The Board of Immigration Appeals (BIA) in Matter of Magallanes-Garcia,
Int. Dec. 3341 (BIA 1998), 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 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 U.S.C.
§ 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.
Arson
The BIA in Matter of Palacios-Pinera, Int. Dec. 3373 (BIA
1998) 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:
(A) Physical force is an element of the crime,
or
(B) The nature of the crime (as demonstrated
by the generic elements of the offense) means 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
offense comes with 18 U.S.C. § 16(b) as a crime of violence
if it has the potential of resulting in harm.
Involuntary Manslaughter
The BIA in Matter of Alcantar, 20 In. Dec. 801 (BIA 1994),
found a conviction for involuntary manslaughter to be a crime
of violence and an aggravated felony as defined in 101(a)(43)(F).
The BIA held that if the offense is a felony and if by 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."
The BIA in Alcantar cited United States v. Springfield,
829 F 2d 890 (9th Cir 1987), 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." United States v. Springfield,
829 F2d 860, at 863.
Criminal Contempt
The BIA in Matter of Ahmad Aldabesheh, Int. Dec. 3410
(August 1999), 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 a conviction for a crime
of violence under 18 U.S.C. 16(b), thus rendering it an aggravated
felony under 101(a)(43)(F) INA. 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:
"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."
(N.Y. Penal Law 215.51(b)(I)
Criminally Negligent
Child Abuse
The BIA held in Matter of Sweetser, Int. Dec. 3390 (May
1999) that a conviction of criminally negligent child abuse
under Colorado statute was not an aggravated felony under
101(a)(43)(F) INA. 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 U.S.C. § 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."
Statutory Rape
Recent decisions conflict as to whether statutory rape
is considered a crime of violence.
The BIA in Matter of B, Int. Dec. 3270 (1976),
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, 173 F3d 604 (7th Cir. 1999) 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 removablehaving
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 vilence, and 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, that 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, 495 U.S. 575 (1990), 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, Int. Dec. 3321 (BIA 1997)
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
101(a)(43)(S) INA 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 In re: Rafael Espinoza-Gonzalez, Int. Dec. 3402 (June 1999),
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 noted 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, and noting that nothing in section 4
references the specific purpose for which the concealment
must be undertaken.
The BIA in a recent case distinguished Matter
of Batista-Hernandez and found a conviction for misprison
of a felony under 18 U.S.C. § 4 (1994) does not constitute
a conviction for an aggravated felony under 101(1)(43)(S)
INA as an offense relating to obstruction of justice. In the
decision of In re: Rafael Espinoza-Gonzalez the alien was
convicted of misprison of a felony in violation of 18 USC
§ 4 (conspiracy to possess marijuana with intent to distribute)
and sentenced to imprisonment for a year and a day. The BIA
in its decision found that misprison of a felony does not
require as an element either active interference with proceedings
of tribunal or investigation or action or threat of action
against those who would cooperate in the process of justice.
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. Soveiti v. INS, 1999 Daily
Journal D.A.R. 7643. In Soveiti v INS, the alien, a lawful
permanent resident, pleaded 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 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, Int. Dec. 3379 (BIA 1999) 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."
Deferred Adjudication
Under State Statute
The BIA in Matter of Roldan, Int. Dec. 3377 (BIA 1999) overturned
the long-standing policy on deferred adjudication in which
state rehabilitation statutes were recognized. The BIA held
that the definition of "conviction" (INA 101(a)(48)(A)) 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 101(a)(48)(A), that conviction remains, notwithstanding
any state rehabilitation statute. The BIA also overturned
Matter of Manrique, Int. Dec. 3250 (BIA 1995), which accorded
federal first-offender treatment to certain aliens who receive
relief under a state rehabilitation statute such as California
Penal Code 1203.4. The BIA held that with the enactment of
101(a)(48)(A) no immigration effect is to be given to any
state rehabilitation statute.
In a similar case, Matter of Punu, Int. Dec.
3364 (BIA 1998), the Board (relying on section 322 of IIRAIRA,
which amended 101(a)(48)(A) INA) overturned its prior precident
decision, Matter of Ozkok, 20 INA Dec. 546 (BIA 1988) 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 noncitizenseven those with decades-old convictions.
Conclusion
The INS continues to remove record numbers of lawful permanent
residents who have been convicted of criminal offenses in
the United States. Since October 1998 the INS has implemented
a mandatory detention program that prevents posting of bond
in most cases pending removal proceedings. INS Border Agents
interview almost all persons placed in county jail facilities
to determine their immigration status. Noncitizens will have
detainers placed on them to prevent their release from custody;
in most cases this will prevent the noncitizen from posting
criminal bond. And a noncitizen who re-enters the U.S. following
deportation or removal as an aggravated felon can face a sentence
of up to 20 years for the illegal entry.
These changes require criminal defense attorneys
to improve their understanding of the immigration consequences
of criminal pleas. It is no longer effective representation
to simply advise a noncitizen of the provision of California
Penal Code 1016.5. Although Congress may eventually take steps
to ameliorate the harsh consequences for aggravated felony
convictions (and possibly increase the various forms of discretionary
relief that have all but disappeared), until such changes
are made, criminal defense attorneys must explore all possible
sentencing options to avoid a conviction for an aggravated
felony.
Definition of Aggravated Felony
[101(a) INA]
Appendix A
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);
(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;
(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);
(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:
(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);
(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;
(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;
(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;
(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;
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.
Controlled Substance Convictions
Appendix B
The definition of aggravated felony provides:
"any illicit trafficking in any controlled
substance (as defined in seciton 102 of the Controlled Substance
Act), including any drug trafficking crime as defined in
924(c)(2) of title 18, United States Code." 101(a)(43)(B)
To determine if a state offense is an aggravated
felony, the BIA will review the state statutes to determine
if the offense is punishable as a felony under federal statutes.
For a state felony drug conviction for simple
possession (first offense), which would be considered a misdemeanor
under federal law, the INS is following the decision in Matter
of L-G-II, Int. Dec. 3254 (BIA 1995) and will not treat the
conviction as an aggravated felony.
For a state misdemeanor conviction for conspiracy
to distribute a controlled substance, the BIA in Matter of
Davis, 20 IN 536 (BIA 1992) found it an aggravated felony.
The Board reasoned that the state conviction, even though
a misdemeanor, would be analogous to a felony under federal
law. The BIA noted that because the phrase "any illicit trafficking
in any controlled substance" in section 101(a)(43)(B) of the
Act includes "any drug trafficking crime" as defined in 18
USC § 924(c)(2), an offense involving a controlled substance
which is not designated as a felony under the law of the rendering
jurisdiction and/or which does not constitute "illicit trafficking"
as commonly defined, might nonetheless be a "drug trafficking
crime" and be deemed an aggravated felony.
Aggravated Felonies--Harsh Consequences
by
Abbe Allen Kingston
|
|
