Criminal Justice Section  


Criminal Justice Magazine
Fall 2002
Volume 17 Issue 3

Immigration Consequences of Criminal Convictions

By Robert James McWhirter

Editor’s Note: This article is excerpted and adapted from The Criminal Lawyer’s Guide to Immigration Law: Questions and Answers , published by the ABA’s Criminal Justice Section. Space constraints preclude including appendices and other material. For information about the book, see page 19. Also, this text does not incorporate changes in the law that have resulted from the Patriot Act and other statutes since September 11, 2001.

A deportation may result in "loss of both property and life; or all that makes life worth living." ( Ng Fung Ho v. White, 259 U.S. 276, 284 (1922).) As a result, every criminal lawyer dealing with alien defendants or victims should know something about immigration crimes.

The Anti-Terrorism and Effective Death Penalty Act of 1996 (ATEDPA), Pub. L. No. 104–132, 110 Stat. 1214, and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), Pub. L. No. 104–302, 110 Stat. 3656, portray being an alien defendant or victim all too seriously. For many aliens, a criminal conviction pales in comparison with the risk of deportation.

This chapter relies heavily on two articles: Robert J. McWhirter, "Hell Just Got Hotter: The Rings of Immigration Hell Revisited" (5:6 Crim. Prac. L. Rep. 1 (July 1997)), and Robert J. McWhirter, "Hell Just Got Hotter: The Rings of Immigration Hell and the Immigration Consequences to Aliens Convicted of Crimes Revisited" (11 Geo. Immigr. L.J. 507 (1996). See also Richard L. Prinz, Criminal Aliens under IIRAIRA, 2:3 Bender’s Immigr. Bull. 79 (Feb. 1, 1997); William R. Maynard, Deportation: An Immigration Law Primer for the Criminal Defense Lawyer, The Champion, June 1999, at 12.)

Citizenship and Crime

What does my client’s citizenship have to do with criminal consequences?

Citizens cannot be deported—everyone else can be. Don’t make the mistake of thinking that the label "legal permanent resident" means permanent no matter what. Conviction for any number of crimes means a "permanent" resident can be deported, although he enjoys more defenses to deportation than someone in the country illegally. ( See 8 U.S.C. § 1227 (allowing for deportation of legal permanent residents); B. John Ovink, Why a Plea Bargain May No Longer Be a Bargain for Legal Permanent Resident Aliens, Fed. Law., May 1999, at 49.)

How do you know whether someone is a citizen?

Questions of citizenship are not always simple. U.S. citizenship is conferred by blood or by place of birth. (8 U.S.C. § 1401 (1994).) If by blood, the citizenship is "derivative": a person can be a citizen if a parent was or became one, regardless of where the child was born. Derivative citizenship depends on a number of confusing factors, including whether the citizen parent was the mother or father, the immigration laws in effect at the time of the parents’ and/or defendant’s birth, and the parents’ marital status. (See National Lawyer’s Guild, Immigration Law and Defense (3d ed. 1995); Daniel Levy, Children Born Out of Wedlock after the 1995 Amendment to the Definition of Child for Immigration Purposes, 3:19 Bender’s Immigr. Bull. 1 (Oct. 1, 1998).)

What if my client is not a citizen?

If your client lacks citizenship, determine his immigration status—whether a legal permanent resident (LPR) with a green card, a nonimmigrant visa holder (e.g., H1B, professional temporary worker; L-1, intercompany transferee; E-Visa, investor; or B-1/B-2, business visitor/visitor for pleasure), or an illegal. An alien’s status is relevant when assessing the immigration consequences of criminal convictions under 8 U.S.C. § 1227 (defining the grounds for deportation) and 8 U.S.C. § 1182 (defining the grounds for exclusion).

Immigration Law and Convictions

If the defendant is not a citizen, what will the INS do if he’s convicted of a crime?

It depends on the conviction and comes down to three questions: (1) does the conviction make the alien "removable"; (2) does the alien have any discretionary relief from removal; and (3) does the alien have a chance to get that discretionary relief from the immigration judge?

Title 8 U.S.C. § 1101(a)(43) (listing aggravated felonies) and 8 U.S.C. § 1227(a)(2) (listing other criminal grounds for removal) usually answer the first question. These two statutes are the first and best source for an answer to whether a convicted alien will be removed. As William Maynard recently wrote in an excellent article on this topic, "There is no shortcut to understanding them. Counsel must simply study and apply §§ 1101(a)(43) and 1227(a)(2) one case at a time." (William R. Maynard, Deportation: An Immigration Law Primer for the Criminal Defense Lawyer, The Champion, June 1999, at 12, 14.) In addition, the statute that lists which aliens are inadmissible, 8 U.S.C. § 1182, can be important.

The answer to the second question is fairly easy when talking about aggravated felons. In most cases, there is no relief. An alien can apply for adjustment of status even with a conviction for some aggravated felonies; withholding of deportation is available, but is a long shot—most defendants can’t qualify. ( See Brian K. Bates, "Guerilla Lawyers": Survival and Resistance Against Government Forces (Part 1), 4:18 Bender’s Immigr. Bull. 909 (Sept. 15, 1999), and Brian K. Bates, "Guerilla Lawyers": Survival and Resistance Against Government Forces (Part 2), 4:19 Bender’s Immigr. Bull. 951 (Oct. 1, 1999) (excellent two-part article on defending aggravated felons in immigration court).) Relief for the other defendants is a complicated question.

The answer to the third question is a judgment call that depends on the alien’s contacts with this country (e.g., family, work, community involvement), among other things.

What about aliens with old convictions—they shouldn’t have to worry, right?

Wrong! As of 1996, deportation for an aggravated felony is applied retroactively. (8 U.S.C. § 1101(a)(43).) Title 8 U.S.C. § 1101(a)(43) came into being with the Anti-Drug Abuse Act of 1988. Even an alien convicted long before 1988 for a crime now defined as an aggravated felony will be removed as an "aggravated felon." ( But see Nancy Morawetz, Rethinking Retroactive Deportation Laws and the Due Process Clause, 4:6 Bender’s Immigr. Bull. 221 (Mar. 15, 1999).) However, the Ninth Circuit held that a retroactive application of the deportation statute to aggravated felons with pre-1996 convictions is not permissible if the alien entered a guilty plea "in reliance upon the relief afforded by INA § 212(c) [8 U.S.C. § 1182(c)]." ( United States v. Magana-Pizano, 200 F.3d 603, 614 (9th Cir. 1999). See also Kathleen M. Sullivan, Commentary on Magana-Pizano, 5:2 Bender’s Immigr. Bull. 75 (Jan. 15, 2000).)

Will vacating or expunging a conviction help the alien avoid deportation?

Generally, before 1999, vacating a conviction by appeal, habeas corpus, coram nobis, or motion to withdraw the plea or conviction prevented immigration consequences. ( See, e.g., Wiedersperg v. INS, 897 F.2d 1179 (9th Cir. 1990). See generally, U.S. v. G., 774 F.2d 1392 (9th Cir. 1995) ("original jurisdiction" confers power on federal courts to expunge convictions).) Since 1999, however, the INS has regarded state court expungements, set-asides, and dismissals as convictions. On March 3, 1999, the BIA ruled that no effect is accorded under immigration law to a state action that expunges, dismisses, cancels, vacates, discharges, or otherwise removes a guilty plea or verdict. ( See Matter of Roldan, Int. Dec. 3377 (BIA 1999); Tova Indritz, INS Considers State Expungements, Set Asides, Dismissals as "Convictions", The Champion, May 1999, at 10.) The BIA relied on 8 U.S.C. § 1101(a)(48)(A) and also held that a state conviction under any state law equivalent to the federal First Offender Act, 18 U.S.C. § 3607, would not count as a "conviction" for immigration court proceedings. Counsel must keep this in mind when fashioning pleas.

In at least one past case, the Board of Immigration Appeals found that the INS can use deferred convictions for deportation in drug cases when the following three elements are present: (1) the criminal court’s finding of guilt or the alien’s admission of facts establishing guilt; (2) the imposition of some form of punishment, penalty, or restraint on the defendant’s liberty; and (3) the ability to enter a conviction without further proceedings if the defendant violates the terms of probation or fails to comply with the court’s conditions. ( In re Ozkok, I. & N. Dec. 546 (BIA 1988). See also Garberding v. INS, 30 F.3d 1187 (9th Cir. 1994); Chong v. INS, 890 F.2d 284 (11th Cir. 1989).)

What about juvenile adjudications?

These are not "convictions" under immigration law, although IIRAIRA bars some forms of deportation relief for acts that would be violent felonies if committed by an adult. But some criminal acts are grounds for deportation even without a conviction, such as drug addiction or abuse, alien smuggling, document fraud, and—after September 30, 1996—false claim to U.S. citizenship, illegal voting, and violations of domestic violence restraining orders. All of these bases for deportation apply to juveniles.

Are cases on direct appeal "convictions" for deportation hearings?

Before 1996, a case on direct appeal was not a final conviction, and the alien was not removed for this conviction. Now, however, it appears that the conviction is "final" upon sentencing. (8 U.S.C. § 1101(a)(48).)

Are diversion agreements convictions?

Only if they do not involve a finding of guilt. Procedures such as sentencings are convictions under immigration law. ( In re Roldan, Int. Dec. 3377 (BIA 1999); In re Punu, Int. Dec. 3364 (BIA 1998).)

What is a "sentence" under immigration law?

A sentence under immigration law includes "the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part." (8 U.S.C. § 1101(a)(48).) It is often important to know whether the alien has a conviction of a crime involving moral turpitude or certain aggravated felonies.

Is there any defense to deportation for a convicted alien?

Not much. IIRAIRA drastically changed and narrowed the relief available in immigration court by replacing waiver and suspension of deportation with a cancellation of removal proceeding, which has several requirements and is not available to aggravated felons or drug convicts. If any chance for relief from deportation exists, it would be worth consulting a good immigration attorney or an up-to-date immigration reference book. (Manuel D. Vargas, Removal Defense Checklist, 4:12 Bender’s Immigr. Bull. 592 (June 15, 1999) (a very good article for ideas on how to help the convicted alien defend against deportation).)

Criminal Acts Not Resulting in Conviction

If the alien client avoids a conviction, does that solve the immigration problems?

Not necessarily. Title 8 U.S.C. § 1101(f) defines immigration consequences possible even without a conviction. Persons who have not shown "good moral character" can be denied naturalization, voluntary departure from the U.S., or discretionary relief from removal even if they are statutorily eligible for such relief. Under 8 U.S.C. § 1101(f), an immigration judge will not find "good moral character" for various types of people, including habitual drunkards and drug addicts, professional gamblers, prostitutes, or polygamists. An alien cannot be deported on these bases but still may suffer consequences if trying to naturalize, voluntarily depart, or applying for other forms of relief from deportation. (8 U.S.C. § 1227(a)(2)(B)(ii). See K. Brady, Effect of Expungement of Conviction on § 241(a)(4)(II) of Immigration and Nationality Act of 1952, Making Aliens Deportable for Crimes Involving Moral Turpitude or Drugs, 98 A.L.R. Fed. 750 (1990).)

Under several of these grounds, mere commission of or admitting to the bad act (regardless of conviction) may prevent an alien from establishing "good moral character." Counsel for an alien faced with a "bad moral character" criminal allegation should not only try to prevent a conviction, but also assist in the preparation of any court documents, such as factual basis to pretrial diversion agreements.

Moreover, 8 U.S.C. § 1227(a) defines several criminal conduct grounds for removal that do not require convictions, such as alien smuggling, criminal acts relating to national security, violations of a domestic protective order, and drug abuse or addiction.

Aggravated Felonies

What are "aggravated felonies"?

"Aggravated felonies" came into being in immigration and federal criminal law with the Anti-Drug Abuse Act of 1988. (Title 8 U.S.C. § 1101(a)(43).) Whenever an alien is charged with a crime, look at this statute! Originally, 8 U.S.C. § 1101(a)(43) listed a rather modest number of "aggravated felonies," but it now numbers 21 subsections with sub-subsections (they are almost out of letters of the alphabet), defining a great number of crimes. Some are expected, like murder, firearm offenses, or drug trafficking. Others, like simple fraud or small-time drug possession convictions, are more surprising.

Is the list at § 1101(a)(43) clear as to all the aggravated felonies?

Unfortunately, no. The term "aggravated felonies" even includes some misdemeanors.

Does the term include state convictions?

Yes. To determine whether an alien’s state conviction is an "aggravated felony," the court looks only at the state’s statutory definition of the offense, not the underlying factual circumstances of the crime or the name of the offense. ( United States v. Baron-Medina, 187 F.3d 1144 (9th Cir. 1999); United States v. Lomas, 30 F.3d 1191 (9th Cir. 1994), cert. denied, 513 U.S. 1176.)

What about drug trafficking crimes?

These have been aggravated felonies since the Anti-Drug Abuse Act of 1988, the inception of 8 U.S.C. § 1101(a)(43). The list includes federal convictions as well as state drug offenses if the statutory elements would constitute a felony under Title 21 of the U.S. Code. Under this definition, aggravated felonies include attempted possession, United States v. Lugo, 170 F.3d 996 (1999); aiding and abetting cocaine possession with intent to distribute, United States v. Baca-Valenzuela, 118 F.3d 1223 (8th Cir. 1997); and felony sale of a controlled substance, Nakhleh v. INS, 38 F.3d 829 (6th Cir. 1994). The definition is so broad that it encompasses some misdemeanor convictions. ( See, e.g., Jenkins v. INS, 32 F.3d 11 (2d Cir. 1994) (attempted possession of a controlled substance, a felony under state law but a misdemeanor under federal law, is aggravated felony).)

What about simple possession: Is it an aggravated felony?

In many circuits, yes. The Ninth Circuit has ruled that two prior misdemeanor drug possession convictions constitute an "aggravated felony" because the first misdemeanor possession makes the second a felony under federal drug statutes. ( United States v. Garcia-Olmedo, 112 F.3d 399 (9th Cir. 1997); United States v. Zarate-Martinez, 133 F.3d 1194 (9th Cir.), cert. denied, 119 S. Ct. 123 (1998).) Following this, the Ninth Circuit also ruled that one single conviction for drug possession can constitute an "aggravated felony." ( United States v. Ibarra-Galindo, 206 F.3d 1337 (9th Cir. 2000). See generally Katherine Brady, Commentary on United States v. Ibarra-Galindo , Is First Offense Simple Possession an Aggravated Felony?, 5:7 Bender’s Immigr. Bull. 303 (Apr. 1, 2000). But see In re K-V-D, Int. Dec. #3422 (BIA 2000) (BIA ruling that state felony conviction for simple possession punished only as a misdemeanor under federal law is not aggravated felony).)

What about a theft offense?

A theft is an aggravated felony if the sentence is a year or more. (8 U.S.C. § 1101(a)(43)(G).) A defense lawyer working out a plea should try to make the sentence for less than one year—not less than a year and a day. If the sentence is 364 days or less, the definition can be bypassed, but a sentence of 365 days or more means the alien is an aggravated felon. The sentence imposed is key. Even though the conviction may be for a state misdemeanor, a sentence imposed for a year or more is an aggravated felony. ( See United States v. Graham, 169 F.3d 787 (3d Cir. 1999) (conviction for petit larceny misdemeanor still "aggravated felony").) Although "theft" may be broadly defined, it should have some reference to the "generic" definition. ( See United States v. Taylor, 495 U.S. 575 (1990).)

Is burglary an aggravated felony?

It depends. The statute states that burglaries with a sentence of a year or more are aggravated felonies. (8 U.S.C. § 1101(a)(43)(G).) The Ninth Circuit, however, recently joined the Fifth and Seventh Circuits in ruling that not all burglaries are aggravated felonies. The only burglaries that count are those that meet the commonly accepted, contemporaneous definition per United States v. Taylor, 495 U.S. 575 (1990). ( United States v. Ye, 2000 WL 732911 (9th Cir.), citing Lopez-Elias v. Reno, 209 F.3d 788 (5th Cir. 2000), and Solorzano-Patlan v. INS, 207 F.3d 869, 874 (7th Cir. 2000).)

Are crimes of fraud involving amount of loss aggravated felonies?

Under section M of 18 U.S.C. § 1101(a)(43), fraud and tax crimes involving a loss of over $10,000 are aggravated felonies. Thus, aliens who enter a plea of guilty to an amount less than $10,000, regardless of the punishment, will not be defined as aggravated felons.

Are crimes of violence aggravated felonies?

A crime of violence is an aggravated felony if a sentence of a year or more is imposed. A crime of violence includes any felony that by its nature presents a substantial risk that force was used against people or property in the commission of the crime. (18 U.S.C. § 16(b).) The BIA has begun to hold even nonspecific-intent crimes, such as involuntary manslaughter ( Matter of Alcantar, 20 I. & N. 801 (BIA 1995)) and felony drunk driving/driving with a suspended license, as aggravated felonies ( Matter of Magallanes-Garcia, Int. Dec. 3341 (BIA 1998). The term has been held also to include the following crimes: unauthorized use of a motor vehicle, United States v. Galvan-Rodriguez, 169 F.3d 217 (5th Cir. 1999); indecency with a child, United States v. Velazquez-Overa, 100 F.3d 418 (5th Cir.), cert. denied, 520 U.S. 1134 (1996); burglary of a habitation, United States v. Guadardo, 40 F.3d 102 (5th Cir. 1994); attempted sexual abuse of a child, United States v. Reyes-Castro, 13 F.3d 377 (10th Cir. 1993); assisting or instigating escape or attempted escape of a prisoner, United States v. Aragon, 983 F.2d 1306 (4th Cir. 1993); armed bank robbery, United States v. Maddalena, 893 F.2d 815, rehrg. denied (6th Cir. 1989); attempted lewd assault, Ramsey v. INS, 55 F.3d 580 (11th Cir. 1995); statutory rape, Matter of B, Int. Dec. 3270 (BIA 1996); terrorism, Matter of S_S_, Int. Dec. 3317 (BIA 1997); felony driving while intoxicated, United States v. Camacho-Marroquin, 188 F.3d 649 (5th Cir. 1999).)

What about convictions for conspiracy or attempt to commit any of the offenses listed at 8 U.S.C. § 1101(a)(43)?

These are aggravated felonies as well, but solicitation of a crime such as drug trafficking probably is not. ( See Coronado-Durazo v. INS, 123 F.3D 1322 (9th Cir. 1997).) Also, misprision of a felony may not be an aggravated felony because it does not appear to be in the language of 8 U.S.C. § 1101 (a)(43).

What happens to an alien with an aggravated felony conviction?

Removal. An "aggravated felon" is almost guaranteed deportation. (8 U.S.C. §§ 1229b(a)(3), 1229c(a)(1).) An alien convicted of an aggravated felony will be ineligible for almost all deportation relief, including political asylum. ( See Evangeline G. Abriel, Presumed Ineligible: The Effect of Criminal Convictions on Application for Asylum, and Withholding of Deportation Under Section 515 of the Immigration Act of 1990, 6 Geo. Immigr. L.J. 27 (1992), and voluntary departure under 8 U.S.C. § 1254(e)(2).) By eliminating a waiver of deportation for aggravated felons, the Anti-Terrorism and Effective Death Penalty Act took away the aggravated felon’s main hope for relief from deportation. (8 U.S.C. § 1182 (1994). See Ira J. Kurzban, Immigration Law Sourcebook (7th ed. 2000); Jeffery B. Fawell & Robert S. White, Effects of Recent Immigration Legislation on Criminal Aliens and Defense Practitioners, The Champion, Sept./Oct. 1995, at 10.) Only in limited circumstances can an alien apply for adjustment of status with a waiver despite an aggravated felony conviction. In addition, deportation as an aggravated felon means that for the duration of the alien’s life, he must seek advance permission from the U.S. attorney general before attempting to reenter the United States; failure to do so results in a drastically increased sentence upon conviction under 8 U.S.C. §1326(b)(2).

What about someone with an old criminal conviction that at the time was not an aggravated felony but is now?

According to the definition of aggravated felony at 8 U.S.C. § 1101(a)(43), it doesn’t matter when the person committed what is now an aggravated felony; he or she will be deported as an aggravated felon. ( But see Ron Wada, An Argument Against Deportability Based on a Retroactively Defined Aggravated Felony, 3:20 Bender’s Immigr. Bull. 1035 (Oct. 15, 1998); Nancy Morawetz, Rethinking Retroactive Deportation Laws and the Due Process Clause, 4:6 Bender’s Immigr. Bull. 221 (Mar. 15, 1999).)

However, the Ninth Circuit has held that a retroactive application of the deportation statute to aggravated felons with pre-1996 convictions may not be permissible if the alien entered a guilty plea "in reliance upon the relief afforded by INA § 212(c) [8 U.S.C. § 1182(c)]." ( United States v. Magana-Pizano, 200 F.3d 603, 614 (9th Cir. 1999.) See also Kathleen M. Sullivan, Commentary on Magana-Pizano, 5:2 Bender’s Immigr. Bull. 75 (Jan. 15, 2000).) To be eligible for relief under Magana-Pizano, the alien must (1) be a lawful permanent resident; (2) have lived legally in the U.S. for at least seven years on the date of deportation; (3) not have served a sentence of more than five years; (4) have been convicted on or before April 24, 1996, or pled guilty on or before April 24, 1996, believing that the plea would not be the basis for deportation; and (5) have a final order of deportation.

What is the most important thing to remember about aggravated felonies?

Aggravated felony convictions are the immigration equivalent of the death penalty. This reality may force many trials, because the alien cannot accept a plea to an aggravated felony or drug offense. Both defense attorneys and prosecutors will have an interest in finding other resolutions for the case.

Drug Convictions

What about convictions for drug crimes?

Drug trafficking under 8 U.S.C. § 1101(a)(43)(B) is an aggravated felony. This includes any second conviction for simple drug possession. ( U.S. v. Garcia-Olemdo, 112 F.3d 399, 400-401 (9th Cir. 1997).)

Almost any drug conviction is as bad as an aggravated felony conviction. The alien will face deportation for any crime (misdemeanor or felony) relating to possession, manufacture, transportation, or importation of most drugs, including marijuana, regardless of the sentence imposed. (8 U.S.C. § 1227(a)(2)(B)(i).) Even proof of addiction is ground for deportation or exclusion. (8 U.S.C. §§ 1227(a)(2)(B) (ii), 1182(a)(1)(A)(iv).)

What about when a drug offense has been expunged?

Expungement of a first conviction of simple possession has been used to eliminate the ground for deportability and removal. ( Garberding v. INS, 30 F.3d 1137 (9th Cir. 1994); Matter of Manrique, Int. Dec. 3250 (BIA 1995).) This is probably not true today under 8 U.S.C. § 1101(a)(48) and Matter of Roldan, Int. Dec. 3377 (BIA 1999).

Does a conviction of accessory after the fact or misprision of a drug felony count as a drug offense under immigration law?

No. Conviction of accessory after the fact or misprision of felony is not a drug offense even if the principal offense involved drugs. ( Matter of Battista-Hernandez, Int. Dec. 3321 (BIA 1997).) However, the BIA has held that accessory after the fact constitutes obstruction of justice, and this is an aggravated felony under 8 U.S.C. § 1101(a)(43) if a one-year sentence is imposed.

What if the conviction does not identify the drug involved?

A conviction that does not identify the drug involved cannot establish a federally listed controlled substance and thus is not a controlled substance drug offense under immigration law. ( Matter of Paulus, 11 I. & N. 274 (BIA 1965).)

Are solicitation, conspiracy, or attempts to commit drug trafficking considered offenses?

Following the wording of 8 U.S.C. § 1101(a)(43), solicitation is not a drug-trafficking offense, but conspiracy and attempts to commit a drug offense are deportable offenses. ( Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir. 1997).)

Are there any exceptions to deportation for a drug conviction?

One. A person who has one conviction for simple possession of 30 grams or less of marijuana may have a claim to relief from deportation. (8 U.S.C. § 1182(h); 8 U.S.C. § 1227(a)(2)(B)(i).)

Moral Turpitude Misdemeanors

Can a defendant be deported on a misdemeanor conviction?

Yes. (8 U.S.C. § 1227(a)(2)(A)(ii).) Deportation for misdemeanor convictions can occur when the alien is (1) "convicted" (2) of two or more "moral turpitude" crimes (3) not from a "single scheme of criminal misconduct." Because nothing is ever simple with immigration law, the terms "conviction," "moral turpitude," and "single scheme of criminal misconduct" have specific legal meanings.

What does it mean to have a "conviction"?

Congress recently changed this aspect of immigration law. Now, an alien is convicted for immigration purposes if (1) he entered a nolo contendere or guilty plea or admitted sufficient facts to warrant a finding of guilt, and (2) the judge ordered some form of punishment, penalty, or restraint on the alien’s liberty. (8 U.S.C. § 1101(a)(48).)

Before 1996, the conviction was not "final" when the case was on direct appeal. Thus, the INS would not begin deportation proceedings. ( In re L.R., 8 I. & N. Dec. 269, 270 (BIA 1959), overruled in part, In re Ozkok, 19 I. & N. Dec. 546 (BIA 1988).) IIRAIRA changed this. ( See 8 U.S.C. § 1101(a)(48).) Now, the conviction is final as soon as a defendant alien is sentenced.

In addition, a conviction is not "a felony" if the felony is not identified. ( Matter of Short, Int. Dec. 3126 (BIA 1989).)

What is a crime of moral turpitude?

Generally, crimes of moral turpitude have an intent element demonstrating moral laxity, bad character, or violence. ( See, e.g., Chuck Roth, Moral Turpitude in the DWI Context, 4:22 Bender’s Immigr. Bull. 1067 (Nov. 15, 1999).) Several good resources exist. ( See Dan Kesselbrenner & Lory D. Rosenberg, Immigration Law and Crime, App. E (1995); Hilary Hochman, Special Considerations in Representing the Noncitizen Defendant in Defending a Federal Criminal Case, 842–43 (1995).)

How does immigration law define "a single scheme of criminal misconduct"?

To deport an alien for misdemeanor convictions, the government must prove two separate misdemeanor crimes that did not arise from the same temporally connected event. ( Pacheco v. INS, 546 F.2d 448, 452 (1st Cir. 1976) ("single scheme" is determined by a "temporally integrated episode of continuous activity" without interruption that might allow the alien to consider his conduct), cert. denied, 430 U.S. 985 (1977); Nason v. INS, 394 F.2d 223, 227 (2d Cir.) ("Congress meant to give the alien a second chance, not to spare the recidivist"), cert. denied, 393 U.S. 830 (1968).) All doubts on this issue resolve in favor of the noncitizen. ( Fong Haw Tan v. Phelan, 333 U.S. 6 (1947); Costello v. INS, 376 U.S. 120, 128 (1964).)

Prosecutors and defense attorneys should consider pleas to deferred prosecution, pretrial diversion, or a crime not involving moral turpitude. Often, alien defendants will agree to more jail or prison time for such a plea. If this fails, the parties may try to influence the Board of Immigration Appeals through the writing of the factual basis.

Remember, the alien must have two or more separate misdemeanor convictions to be deportable. One tactic is to suggest that the court find guilt on the "same course of criminal conduct," despite the allegation of two crimes.

Moral Turpitude Felonies

Besides aggravated felonies and drug convictions, what other felonies can get a defendant deported?

An alien is now deportable if (1) convicted (2) of a crime involving moral turpitude (3) committed within five years after "entry," (4) and a sentence of one year or longer may be imposed. (8 U.S.C. § 1227(a)(2)(A)(i)(II).)

What does "entry" mean?

Before the INS can deport an alien for a moral turpitude felony under section 1227(a)(2)(A)(i)(I), it must establish that the alien committed the crime within five years of the alien’s "entry" into the United States. An entry is "any coming of an alien into the U.S. whether voluntary or otherwise." (8 U.S.C. § 1101(a)(13).) If the alien has been living in the United States for longer than five years since his last entry, he cannot be deported for one moral turpitude felony, so long as it is not an aggravated felony under 8 U.S.C. § 1101(a)(43). Except for legal, permanent resident aliens, any alien who crosses a border to leave the United States must begin the five-year period again upon returning to this country. For legal permanent resident aliens, the INS must show that the alien actually intended to interrupt residency by leaving the United States. "Brief, casual and innocent" departures do not count against legal, permanent resident aliens. ( Rosenberg v. Fleuti, 374 U.S. 449, 462 (1963).) Thus, the legal permanent resident who takes brief trips to a country of origin will not restart the "entry" calculation.

What is the definition of "sentenced to confinement or confined"?

For an alien to be deportable before passage of the Anti-Terrorism and Effective Death Penalty Act, a moral turpitude felony had to have included an actual sentence of confinement in a correctional institution for at least one year. Thus, suspending the imposition of a sentence negated this element and prevented deportation. ( Okoroha v. INS, 715 F.2d 380 (8th Cir. 1983); Petsche v. Clingan, 273 F.2d 688 (10th Cir. 1960).) Now, however, the alien is deportable whenever a sentence of "one year or longer may be imposed." (8 U.S.C. § 1227(a)(2)(A)(i)(II).) Neither suspending nor receiving less than a year matters.

Other Deportable Crimes

What about convictions for weapons offenses?

Title 8 U.S.C. § 1227(a)(2)(C) governs deportability for weapons offenses and applies to an alien convicted of felony possession of firearms or ammunition, 18 U.S.C. § 922(g)(1); possession of a firearm or ammunition by an illegal alien, 18 U.S.C. § 922(g)(5); or possession of a stolen firearm or ammunition, 18 U.S.C. § 922(j). Any conviction for trafficking in weapons is an aggravated felony. (8 U.S.C. § 1101(a)(43)(C).)

What about domestic violence offenses?

The 1996 Immigration Act made convictions for domestic violence, stalking, child abuse, child neglect, or child abandonment deportable offenses. (8 U.S.C. § 1127(a)(2)(E).) Violation of a protective order is also a ground for deportation for convictions since September 30, 1996. The language of this subsection is broad and probably includes almost any type of conviction or violation of a protective order.

What about convictions for smuggling aliens?

A noncitizen who "knowingly" aids, abets, or assists in the smuggling of aliens within five years after entry is subject to exclusion and deportation. (8 U.S.C. §§ 1182(a)(6)(E)(i), 1227(a)(1)(E)(i).) Pleading an alien to misdemeanor aiding and abetting the illegal entry of another under 18 U.S.C. § 2 (1994) and 8 U.S.C. § 1325 (1994), to avoid the felony alien smuggling charge under 8 U.S.C. § 1324 (1994), does not avoid exclusion or deportation.

Counsel’s best option is to look to one of the statutorily enumerated exceptions under 8 U.S.C. §§ 1182(a)(6)(E)(ii) and 1227(a)(1)(E)(ii), relating to helping family members enter illegally, or to plead the client to "accessory after the fact" of the illegal entry of another.

In certain circumstances, alien smuggling is an aggravated felony. ( See 8 U.S.C. §§ 1101(a)(43)(N); Stephen Yale-Loehr, New Developments to Combat Alien Smuggling and Document Fraud, 2:1 Bender’s Immigr. Bull. 3 (Jan. 1, 1997) (details grounds for deportation and relief).)

What about convictions for immigration document fraud?

IIRAIRA provides that an alien is deportable for violating the civil document fraud statute. (8 U.S.C. § 1324(c).) There is, however, a one-time waiver for legal permanent residents who are otherwise admissible as returning residents and who committed the offense solely to help or support the alien’s spouse or child.

Under IIRAIRA, document fraud liability extends to those who engage in document fraud to help others obtain any immigration benefit, even simply helping an alien with false papers. ( See Stephen Yale-Loehr, New Developments to Combat Alien Smuggling and Document Fraud, 2:1 Bender’s Immigr. Bull. 3 (Jan. 1, 1997).)

Prosecutors and defense attorneys can have the defendant plead to possession of false Social Security cards, 18 U.S.C. § 1228(a)(6), instead of false immigration documents, to avoid the basis for deportation. Often, the alien is caught with both types of documents, and the penalty for both is the same under Federal Sentencing Guideline § 2L2.2 or § 2F2.1. In certain circumstances, this crime is an aggravated felony. ( See 8 U.S.C. § 1101(a)(43)(P).)

What about a conviction as an "alien voter"?

Under IIRAIRA, an alien is excludable or deportable for voting in violation of federal, state, or local constitutional provisions, laws, or regulations. (18 U.S.C. § 611.)

Consequences of Return after Deportation

One consequence of a deportation based on a felony or aggravated felony conviction is that the alien cannot legally return to the United States for 15 years (felony) or life (aggravated felony) without securing advance permission from the U.S. attorney general to reapply for admission. Given that many aliens may attempt to return anyway, counsel should seriously consider advising the alien of the penalties for this crime.

What happens to the alien deported for a criminal conviction who does come back to the United States?

Aliens who return illegally after deportation can be charged with the crime of reentry after deportation, in violation of 8 U.S.C. § 1326(b)(1) or (2).

What happens to the aggravated felon who returns to the United States?

Aggravated felons who return are severely punished under 8 U.S.C. § 1326(b)(2). This statute provides for a maximum penalty of 20 years and carries an offense level of 24 under Federal Sentencing Guideline § 2L1.2—roughly equivalent to committing voluntary manslaughter.

What about nonaggravated felons who return illegally?

Nonaggravated felons who reenter face up to 10 years in prison under 8 U.S.C. § 1326(b)(1). This carries a base offense level of 12 under Federal Sentencing Guideline § 2L1.2. Even three misdemeanor convictions for drug crimes or crimes against a person count as a felony under 8 U.S.C. § 1326(b)(1).

Robert James McWhirter is an assistant federal public defender for the District of Arizona with a specialty in criminal immigration law. He also teaches seminars on criminal immigration law and the consequences of criminal convictions for the Criminal Justice Act, sponsored by the Administrative Office of the U.S. Courts.

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