In particular, you need a lawyer who has experience with immigration and child abuse matters.
As for immigration, please see below for grounds of deportation. No matter what you do (no lies as well), don't make yourself into one of the categories, in particular D and E. Not falling into these categories means that you won't be deported. I personally don't think you will be deported but be very careful on the implication on your greencard.
Make sure you lawyer understands the relationship between pleading something and the impact on greencard before hiring any lawyer.
Immigration Fundamentals: Guide to L. & Prac. s 7:3.2
Practising Law Institute
Immigration Fundamentals: A Guide to Law and Practice
Austin T. Fragomen Jr. and Steven C. Bell
Copyright (c) 2006 by the Practising Law Institute
Current through Release 18, May 2005
Chapter 7: Removal of Aliens
§ 7:3 Grounds for Deportation
§ 7:3.2 Criminal Offenses
The second category of deportation grounds includes commission of criminal offenses. Many of these grounds parallel closely equivalent exclusion grounds.
[A] General Crimes and Aggravated Felonies: § 237(a)(2)(A)
Section 237(a)(2)(A)(i) covers aliens convicted of a crime involving moral turpitude within five years of the date of their entry for which a sentence of one year or more may be imposed. This deportation ground parallels the exclusion ground in section 212(a)(2)(A)(i)(I). Unlike the exclusion ground, however, a conviction is required and it must occur within a five-year period after admission. The statute refers to any entry, not just the original entry. In addition, the alien must be convicted of a crime for which a sentence of one year or longer may be imposed. Prior to 1996, the law required the actual imposition of a sentence or confinement for one year or longer before the alien was considered deportable under section 237(a)(2)(A)(i). Under a 1996 amendment, the statute requires only a showing that a sentence of one year or longer may be imposed for the crime. This revision will require only an analysis of the maximum term of imprisonment to determine coverage under section 237(a)(2)(A)(i). The deportation ground does not apply in the case of a full and unconditional pardon granted by the president or a governor of a state. A provision giving effect to judicial recommendations against deportation (JRADs) as part of the criminal trial at which the conviction was entered was eliminated by the 1990 Act; JRADs are no longer effective to stop deportation on this ground.
Section 237(a)(2)(A)(ii) covers aliens convicted of two or more crimes involving moral turpitude, as long as the crimes did not arise out of a single scheme; the convictions may occur in a single trial, however. There has been much controversy as to the meaning of "single scheme of criminal misconduct." The Board takes the position that the statutory language was meant to distinguish cases when there are separate and distinct crimes, but they are performed in furtherance of a single criminal episode, such as when one crime constitutes a lesser offense of another or when two crimes flow from and are the natural consequence of a single act of criminal misconduct. [As a result, when an alien has performed an act, which, in and of itself constitutes a complete, individual, and distinct crime, he/she is deportable when he/she again commits such an act, even though one may closely follow the other, be similar in character, and even be part of an overall plan of criminal misconduct. Some courts have applied a more expansive interpretation of the statutory language such as defining the term to include a specific plan or program of future action, which may involve more than one act or episode.
A conviction which has previously been relied upon in a charge of deportability may be used in a second proceeding to establish that the alien has been convicted of two crimes involving moral turpitude, even if the first proceeding was terminated by a grant of relief from removal.
The deportation ground does not apply in the case of a full and unconditional pardon granted by the president or a governor of a state. As with the previous deportation ground, however, JRADs were eliminated for this provision.
Note: Federal district courts may enter judicial orders of deportation at the time of sentencing aliens who are deportable under section 237(a)(2)(A)(i) or (ii) of the INA. In addition, aliens deportable for committing at least two crimes of moral turpitude for which a sentence of at least one year may be imposed are subject to expedited removal under section 238(a) of the INA, and final orders of removal issued against such aliens are not subject to judicial review. Finally, section 236(c) of the INA subjects to mandatory detention aliens who: (1) are deportable for having committed any offense covered by section 237(a)(2)(A)(ii); or (2) are deportable for having committed any offense covered by section 237(a)(2)(A)(i) for which the alien has been sentenced to a term of imprisonment of at least one year.
Section 237(a)(2)(A)(iii) covers aliens who are convicted of an "aggravated felony" at any time after entry. Provisions regarding aggravated felons and other criminal aliens were added to the INA by the Anti-Drug Abuse Act of 1988. As originally enacted, the term "aggravated felony" was defined to include murder, any drug trafficking crime as defined in 18 U.S.C. § 924(c)(2), or any illicit trafficking in any firearms or destructive devices. The terms also covered any attempt or conspiracy to commit any of the specified crimes, but was limited to crimes committed in the United States. Revisions to the definition enacted in 1990, 1994, and 1996 significantly expanded its coverage.
With these amendments, the number of crimes included in the aggravated felony definition are so numerous that almost all convictions considered felonies under federal law now qualify as aggravated felonies. Some of these crimes include:
(1) offenses relating to engaging in monetary transactions in property derived from certain unlawful activity if the amount of the funds involved exceeds $10,000;
(2) offenses relating to explosives and firearms;
(3) theft or burglary offenses for which the term of imprisonment imposed is at least one year;
(4) offenses relating to ransom;
(5) offenses relating to child pornography;
(6) offenses relating to racketeer influenced corrupt organizations (RICO), for which the term of imprisonment that may be imposed is at least one year;
(7) offenses relating to the owning, controlling, managing, or supervising of a prostitution business;
(8) offenses involving fraud or deceit in which the loss to the victim exceeds $10,000;
(9) offenses relating to tax evasion in which the loss to the government exceeds $10,000;
(10) offenses relating to the smuggling of aliens for commercial advantage when the term of imprisonment imposed is at least one year;
(11) offenses relating to document fraud, for which the term of imprisonment imposed is at least one year;
(12) rape or sexual abuse of a minor;
(13) certain gambling offenses for which a sentence of one year imprisonment or more may be imposed;
(14) offenses relating to reentry after deportation committed by aliens who were previously deported on the basis of aggravated felony convictions;
(15) offenses 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; and
(16) offenses 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.
By far the most common type of offense classified as an aggravated felony is a crime of violence. The IIRAIRA amendment lowering the minimum sentence requirement from five years to one year has greatly expanded the types of criminal conduct that now constitute crimes of violence. In determining whether a crime of violence exists, the Board will analyze first whether the offense is a felony. If the crime is a felony, the second inquiry is whether its commission would ordinarily present a risk that physical force would be used against the person or property of another without regard as to whether the risk develops or harm actually occurs. Using this analysis, the Board and federal courts have held that the following types of convictions constitute crimes of violence:
(1) robbery with a deadly weapon when the alien was sentenced to two and a half years in prison;
(2) driving while under the influence when alien sentenced to two and a half years in prison;
(3) second-degree robbery;
(4) unauthorized use of a motor vehicle;
(5) criminal contempt;
(6) sexual assault of a child;
(7) driving while intoxicated;
(8) first-degree criminal trespass;
(9) sexual battery.
In Matter of Small, the Board set forth its analysis for determining whether misdemeanor sex offenses may constitute aggravated felonies. In so doing, the Board decided to follow federal court precedent holding that a misdemeanor conviction for criminal sexual abuse under state law constitutes sexual abuse of a minor within the scope of the aggravated felony definition. In a decision issued after Small, the Ninth Circuit held that a misdemeanor conviction under a state law prohibiting annoying or molesting a child under the age of 18, did not constitute the aggravated felony of sexual abuse of a minor as defined in INA section (a)(43)(A) because the scope of the conduct required for the offense for which he was convicted was much broader than the sexual abuse conduct proscribed by INA section 101(a)(43)(A). The alien's conviction required an act "objectively and unhesitatingly viewed as irritating or disturbing prompted by an abnormal sexual interest in children," without requiring that the minor have been touched or injured.
The term covers not only the enumerated crimes when committed in the United States, but also when committed in violation of foreign law, provided the term of imprisonment imposed for commission of such violation was completed within the fifteen-year period prior to the removal proceedings. The definition applies to the described offenses whether they are encompassed by federal law or equivalent state law. With regard to the various offenses that are considered aggravated felonies provided the alien is sentenced to a specified term of imprisonment, the IIRAIRA clarifies that an aggravated felony conviction exists if the alien was sentenced to the minimum period of imprisonment specified by the statute without regard to whether part or all of the sentence was suspended or the alien was released early on parole. Interpreting section 101(a)(48)(B), the Board held that an alien who received a suspended sentence for a prison term not to exceed five years, and two years' probation, was sentenced to a five years' imprisonment for immigration purposes. In contrast, the Board ruled that as a result of a criminal court's vacating an alien's one-year prison sentence and revising the sentence to a period of less than a year, his conviction was no longer for an aggravated felony. The Board reasoned that when an alien is resentenced for a crime, the new sentence determines whether the alien received a sentence to confinement for a minimum period that would render the alien deportable as an aggravated felon.
As noted, as revised by the 1990 Act, the aggravated felony term was clarified to include the described federal offenses when they are encompassed by equivalent state law. As a general rule, in deciding whether a prior state court conviction qualifies as an aggravated felony, the Board and the courts employ a categorical approach, under which an offense constitutes an aggravated felony only if the full range of conduct covered by the statute of conviction falls within the "generic definition" of the aggravated felony offense. The court will look only to the statutory definition of the crime and not to the underlying circumstances of the conviction. If there is a conviction under a divisible statute, however, a court may look to the charging paper and judgment of conviction to determine if the actual offense of which the defendant was convicted qualifies as an aggravated felony. Stated differently, if a state statute criminalizes both conduct that does and does not qualify as an aggravated felony, the courts will employ a modified categorical approach under which the courts conduct a limited examination of documents in the record to determine if there is sufficient evidence to conclude that a defendant was convicted of the elements of the generically defined aggravated felony crime. The Second and Ninth Circuits have ruled that an immigration judge cannot use a pre-sentence report (PSR) in determining whether the petitioner was an aggravated felon. The documents that the Board is free to consider in determining whether a conviction under a divisible statute constitutes an aggravated felony include the state charging document, a signed plea agreement, jury instructions, guilty pleas, trans of a plea proceeding, and the judgment. [FN347] The courts have reasoned that a PSR may be unreliable in that it could include allegations that were inadmissible and not proven at trial.
The effective date of the aggravated felony deportation ground is a complex issue. Generally, the Board has applied a two-step approach to determine whether a particular conviction that falls within the definition of section 101(a)(43) may be used to support a deportation charge. The first step is to determine whether a particular conviction is an aggravated felony conviction under section 101(a)(43). Under the first step, the Board held that the term aggravated felony encompassed all convictions described in the statute, whether occurring before, on, or after the date of enactment of the Anti-Drug Abuse Act of 1988, that is, November 18, 1988. The only exceptions to this rule were for offenses that were introduced into the definition by the 1990 Act and the 1994 statute because the latter statutes provide that the added offenses may be considered aggravated felonies only if they were committed on or after the dates of enactment of the respective statutes. If a particular conviction was considered an aggravated felony under section 101(a)(43) under the first part of the Board's test, the second test required an analysis of the immigration consequences of the conviction, for example, whether the conviction could support a deportation charge under 237(a)(2)(A)(iii). Section 7344(b) of the Anti-Drug Abuse Act of 1988 provides that an alien is deportable for an aggravated felony conviction entered after November 18, 1988.
Following the Board's analysis, therefore, it could be argued that an alien is not deportable for an aggravated felony conviction entered before that date. The Board did not directly this latter issue, however. On the other hand, in reaching its conclusion that an alien was ineligible for section 212(c) relief based on the commission of an aggravated felony regardless of the date of conviction, the Board contrasted the lack of any temporal limitations on the restrictions *7-125 on section 212(c) relief with the temporal limitations of section 7344(b).
The IIRAIRA changed the analysis under In re A-A- by adding a sentence to section 101(a)(43) that stated: "Notwithstanding any other provision of law (including any effective date), the [aggravated felony] term applies regardless of whether the conviction was entered before, on, or after the date of enactment of [section 101(a)(43)]." Section 321(b) of the IIRAIRA. The provision implicates the first part of the BIA's test in In re A-A-. As a result, all offenses described in section 101(a)(43) are aggravated felonies regardless of the date of the conviction and the exceptions listed in In re A-A- are no longer valid.
On the other hand, section 321(b) does not implicate the second part of the Board's test in In re A-A-, that is, the immigration consequences inquiry. Therefore, whether aggravated felony convictions entered before November 18, 1988 may support a deportation charge remained unclear. Relying on a savings clause contained in the 1990 Act, the Board has concluded that an alien is deportable for conviction of a crime constituting an aggravated felony regardless of whether the conviction was entered before, on, or after November 18, 1988. Section 602(c) of the 1990 Act states in pertinent part, "[e]xcept as otherwise specifically provided in such section and subsection (d), the provisions of such section, as amended by this section, shall apply to all aliens described in subsection (a) thereof notwithstanding that . . . the facts, by reason of which an alien is described in such subsection, occurred before the date of the enactment of this Act." The Board ruled that section 602(c) eliminated the temporal limitation set forth in section 7344(b) of the Anti-Drug Abuse Act of 1988. Specifically, the Board held that the only limitations placed on the deportability of aggravated felons are now included in section 602(c). Interpreting this section, the Board held that the first set of limitations are those specifically included in section 241(a), as revised by the 1990 Act, that is, the crime for which the alien was convicted must constitute an aggravated felony as defined in section 101(a)(43). The second limitation relates to the cross-reference to section 602(d) which provides that in order for the 1990 Act deportation grounds to apply, the order to show cause must commence on or after March 1, 1991.
The Eleventh Circuit has upheld the Board's interpretation of section 602(c), ruling that the Board's construction of the savings clause was reasonable. In reaching its conclusion, the court relied on its prior determination in Lopez-Amaro v. INS. The alien attempted to distinguish his own case by arguing that Congress made substantive changes to the firearm deportation provisions but merely redesignated the aggravated felony ground. The court rejected this argument noting that the statute's legislative history indicates that Congress intended to comprehensively revise all existing grounds for exclusion and deportation. The Second and Fourth Circuits have joined the Eleventh Circuit in ruling that the 1990 Act superseded the ADAA's date restriction.
The Board later clarified its holding in Lettman, ruling that pre-1988 convictions for crimes that did not come within the definition of an aggravated felony until after the ADAA may also render an alien deportable under the aggravated felony ground. Unlike the alien in Lettman who was convicted of third-degree murder, an offense that has been included in the definition of an aggravated felony since the term was first used in the ADAA, the alien in Truong was convicted of a crime added to the definition of an aggravated felony by the 1990 Act (that is, second-degree robbery which was held to be a crime of violence). The Board reasoned that section 321(b) of the 1996 Act sought to do away with the different effective dates and to establish an aggravated felony definition that would be applied to all criminals, regardless of the date of conviction.
Another provision of the IIRAIRA states that the amendments made by section 321 (eliminating the temporal limitations of the aggravated felony definition) apply to "actions taken" on or after the date of the enactment of the statute, that is, September 30, 1996. section 321(c) of the 1996 Act. The Board has held that this provision should not be interpreted to mean that revisions made to the definition of the aggravated felony definition (including the elimination of temporal limitations by section 321(b)) should not apply to cases that were pending on September 30, 1996. In so doing, the Board has held that its consideration of a case after September 30, 1996, constitutes an "action taken" within the meaning of section 321(c). Courts have upheld this interpretation. The practical effect of these holdings is that section 321(c) does not limit the 1996 Act amendments (relating to the aggravated felony definition) to those cases commenced after September 30, 1996. All cases that were pending on appeal on September 30, 1996, are also covered by the new definition.
Section 238(a) of the INA requires the expedited removal of aliens convicted of "aggravated felonies." A conviction for one of these offenses will lead to a conclusive presumption of the alien's deportability. Removal proceedings before an immigration judge initiated under section 240 against an aggravated felon must be conducted on an expedited basis. The DHS must initiate and, to the extent possible, complete special removal proceedings (including administrative appeals) while the aggravated felon is serving the prison term.
Another significant provision bars the release from custody of aliens convicted of aggravated felonies while their deportability is being determined even if they have completed their criminal sentences, or have been released on parole, supervised release, or probation. The provision permits the release of an aggravated felon only if the release of the alien is necessary to provide protection to a witness, a potential witness, a person cooperating with an investigation into major criminal activity, and the alien satisfies the DHS that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding. The severity of the offense committed by the alien must be considered in the release decision. Aggravated felons who do not fall within this exception may not be released under any circumstances.
The Immigration Service authorizes the use of two additional procedural mechanisms to remove aggravated felons apart from expedited proceedings before an immigration judge under section 240 of the INA. First, an aggravated felon who is not a lawful permanent resident or is only a conditional resident under section 216 of the INA may be removed under a streamlined administrative removal process. The provision allows the DHS to bypass the regular immigration judge removal proceedings under section 240. Second, aggravated felons may be removed through a judicial removal process under which a U.S. district court may order removal during sentencing an alien who has been convicted of, or has entered a guilty plea to, a crime which renders the alien removable under section 238(d) of the INA.
The INA also makes aggravated felons ineligible for various forms of relief from removal. Such aliens are ineligible for cancellation of removal under section 240A of the INA or voluntary departure under section 240B of the INA, or asylum under section 208 of the INA. In addition, an aggravated felon who has been sentenced to an aggregate term of imprisonment of at least five years is ineligible for withholding of removal under section 241(b)(3) of the INA.
Appellate rights are also limited for aggravated felons. Section 242(a)(2)(C) of the INA bars judicial review of a final order of removal under section 240 issued against an alien who is deportable for having been convicted of an aggravated felony. The only exceptions to this bar relate to aggravated felons ordered removed under the administrative removal process set forth in sections 238(b) and 238(d) of the INA. In the latter cases, judicial review under section 242(a)(1) of the removal order is permitted.
Finally, the exclusion bar on readmission by persons ordered removed as aggravated felons is permanent. As a result, aggravated felons ordered removed must seek permission from the DHS to be readmitted to the United States.
Section 237(a)(2)(A)(iv) renders deportable an alien who is convicted of a violation of 18 U.S.C. § 758 relating to high speed flight from an immigration checkpoint. This offense and deportation ground was added by section 108 of the IIRAIRA. "High speed flight" is defined as fleeing or evading an immigration checkpoint in a motor vehicle in excess of the legal speed limit. Persons convicted of such crimes may be fined and imprisoned for up to five years. The deportation ground went into effect on September 30, 1996.
[B] Offenses Relating to Controlled Substances: § 237(a)(2)(B)
The second group of deportation grounds also covers aliens convicted of an offense relating to a controlled substance, as well as drug addicts and abusers. The key difference from the exclusion provisions is that a conviction is required with regard to violation of laws relating to controlled substances.
Under the terms of the deportation ground, an alien is not deportable in the case of conviction of a single instance of possession of thirty grams or less of marijuana for one's own use. This provision is an exemption from the deportation ground and is therefore different from the waiver of the exclusion ground available under the same circumstances.
Note: Legislation enacted in 1996 contains several provisions which affect criminal aliens subject to removal, including aliens deportable for committing an offense covered by section 237(a)(2)(B). Most significantly, the 1996 legislation subjects such aliens to expedited deportation under section 238(a) of the INA, bars such aliens from obtaining judicial review of their final orders of removal, and subjects such aliens to mandatory detention under section 236(c) of the INA.
[C] Firearms Offenses: § 237(a)(2)(C)
Section 237(a)(2)(C) of the INA covers designated firearms offenses and was significantly revised by the 1990 Act to broaden the types of offenses that can lead to deportation.
An alien was deportable under section 241(a)(14) for conviction of possession, or carrying, of an automatic or semiautomatic weapon or sawed-off shotgun. A conviction under state or federal law was prima facie evidence of deportability. The revised deportation ground covers an alien who is convicted of any law regarding purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying in violation of law any weapon, part, or accessory which is a firearm or destructive device, as defined by 18 U.S.C. § 921(a). In addition, an amendment to this deportation ground in 1994 also renders deportable any alien convicted of "attempting or conspiring" to purchase, sell, offer for sale, exchange, use, own, possess, or carry a firearm, as defined in 18 U.S.C. § 921(a).
Prior to 1996, much controversy had arisen with regard to whether aliens found deportable under section 237(a)(2)(C) were eligible for relief under 212(c). The Board had taken the view that section 212(c) relief was unavailable to a resident alien deportable under section 237(a)(2)(C) because this ground for deportation had no comparable ground for exclusion. These holdings created an anomaly under pre-1996 law, since certain aliens convicted of more serious crimes which rendered them deportable under a different ground could apply for relief under prior section 212(c). This anomaly was removed by legislation enacted in 1996 which makes aliens deportable under section 237(a)(2)(C) statutorily eligible for cancellation of removal under section 240A(a) (the current version of section 212(c) relief).
Several Board cases suggest avenues of relief for aliens charged with being deportable under section 237(a)(2)(C). One avenue is to challenge the charge that the alien is deportable under section 237(a)(2)(C) of the INA. Such challenges have been successful with regard to sentence enhancement statutes in which use of a firearm is not an element of the offense but is rather used to impose an additional term of imprisonment. Another avenue for relief is available to adjustment-of-status applicants. The Board held that a weapons conviction does not preclude a finding of admissibility in connection with an application for adjustment of status under section 245(a) of the INA, and it may not serve as a ground of deportability if the alien's status is adjusted to that of a lawful permanent resident.
Note: Legislation enacted in 1996 contains several provisions which affect criminal aliens subject to deportation, including aliens deportable for committing an offense covered by section 237(a)(2)(C). Most significantly, the 1996 legislation subjects such aliens to expedited deportation under section 238(a) of the INA, bars such aliens from obtaining judicial review of their final orders of removal, and subjects such aliens to mandatory detention under section 236(c) of the INA.
[D] Miscellaneous Crimes: § 237(a)(2)(D)
Section 237(a)(2)(D) of the INA, makes deportable aliens convicted of a number of enumerated offenses, all of which had been included in section 241(a)(17) and (18) of the INA prior to the revision of the deportation grounds by the 1990 Act. Those sections contained provisions relating to national security, prohibitions on manufacture of explosives, espionage, violations of the Selective Service Act, trading with the enemy, and interfering with the foreign relations or neutrality of the United States. Not all of the offenses listed in those sections are included in the revised deportation ground; in addition, the offenses listed in section 241(a)(15) and (16) of the INA prior to the 1990 Act amendments have no analogue in the revised deportation grounds.
*7-132 Whether an alien is actually deportable based on a conviction under one of the enumerated statutes depends on a determination by the government that the conviction makes the alien an "undesirable resident" of the United States, and this determination can be based on factors in addition to the actual conviction.
Note: Legislation enacted in 1996 contains several provisions which affect criminal aliens subject to deportation, including aliens deportable for committing an offense covered by section 237(a)(2)(D). Most significantly, the 1996 legislation subjects such aliens to expedited deportation under section 238(a) of the INA, bars such aliens from obtaining judicial review of their final orders of removal, and subjects such aliens to mandatory detention under section 236(c) of the INA.
[E] Domestic Violence: § 237(a)(2)(E)
Section 237(a)(2)(E)(i) renders deportable aliens convicted, at any time after entry, of a crime of domestic violence, stalking, child abuse, child neglect, or child abandonment. This deportation ground was added by section 350 of the IIRAIRA and it is applicable to convictions occurring after September 30, 1996. A "crime of domestic violence" includes any crime of violence (as defined in 18 U.S.C. § 16) against a person committed by a current or former spouse of the person, by an individual with whom the person shares a child in common, by an individual who is cohabiting or has cohabited with the person as a spouse, by an individual similarly situated to a spouse, or by any other individual against a person who is protected from that individual's acts under the domestic or family violence laws of the United States or any state or unit of local government.
Section 237(a)(2)(E)(ii) renders deportable an alien who at any time after entry is enjoined under a protection order issued by a court and whom the court determines has engaged in conduct that violates the portion of the protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued. This deportation ground was also added by section 350 of the IIRAIRA and is applicable to violations of court orders occurring after September 30, 1996. For purposes of removal under this new deportation ground, the term "protective order" means any injunction issued for the purpose of preventing violent or threatening acts of domestic violence, including temporary or final orders issued by civil or criminal courts.
As for immigration, please see below for grounds of deportation. No matter what you do (no lies as well), don't make yourself into one of the categories, in particular D and E. Not falling into these categories means that you won't be deported. I personally don't think you will be deported but be very careful on the implication on your greencard.
Make sure you lawyer understands the relationship between pleading something and the impact on greencard before hiring any lawyer.
Immigration Fundamentals: Guide to L. & Prac. s 7:3.2
Practising Law Institute
Immigration Fundamentals: A Guide to Law and Practice
Austin T. Fragomen Jr. and Steven C. Bell
Copyright (c) 2006 by the Practising Law Institute
Current through Release 18, May 2005
Chapter 7: Removal of Aliens
§ 7:3 Grounds for Deportation
§ 7:3.2 Criminal Offenses
The second category of deportation grounds includes commission of criminal offenses. Many of these grounds parallel closely equivalent exclusion grounds.
[A] General Crimes and Aggravated Felonies: § 237(a)(2)(A)
Section 237(a)(2)(A)(i) covers aliens convicted of a crime involving moral turpitude within five years of the date of their entry for which a sentence of one year or more may be imposed. This deportation ground parallels the exclusion ground in section 212(a)(2)(A)(i)(I). Unlike the exclusion ground, however, a conviction is required and it must occur within a five-year period after admission. The statute refers to any entry, not just the original entry. In addition, the alien must be convicted of a crime for which a sentence of one year or longer may be imposed. Prior to 1996, the law required the actual imposition of a sentence or confinement for one year or longer before the alien was considered deportable under section 237(a)(2)(A)(i). Under a 1996 amendment, the statute requires only a showing that a sentence of one year or longer may be imposed for the crime. This revision will require only an analysis of the maximum term of imprisonment to determine coverage under section 237(a)(2)(A)(i). The deportation ground does not apply in the case of a full and unconditional pardon granted by the president or a governor of a state. A provision giving effect to judicial recommendations against deportation (JRADs) as part of the criminal trial at which the conviction was entered was eliminated by the 1990 Act; JRADs are no longer effective to stop deportation on this ground.
Section 237(a)(2)(A)(ii) covers aliens convicted of two or more crimes involving moral turpitude, as long as the crimes did not arise out of a single scheme; the convictions may occur in a single trial, however. There has been much controversy as to the meaning of "single scheme of criminal misconduct." The Board takes the position that the statutory language was meant to distinguish cases when there are separate and distinct crimes, but they are performed in furtherance of a single criminal episode, such as when one crime constitutes a lesser offense of another or when two crimes flow from and are the natural consequence of a single act of criminal misconduct. [As a result, when an alien has performed an act, which, in and of itself constitutes a complete, individual, and distinct crime, he/she is deportable when he/she again commits such an act, even though one may closely follow the other, be similar in character, and even be part of an overall plan of criminal misconduct. Some courts have applied a more expansive interpretation of the statutory language such as defining the term to include a specific plan or program of future action, which may involve more than one act or episode.
A conviction which has previously been relied upon in a charge of deportability may be used in a second proceeding to establish that the alien has been convicted of two crimes involving moral turpitude, even if the first proceeding was terminated by a grant of relief from removal.
The deportation ground does not apply in the case of a full and unconditional pardon granted by the president or a governor of a state. As with the previous deportation ground, however, JRADs were eliminated for this provision.
Note: Federal district courts may enter judicial orders of deportation at the time of sentencing aliens who are deportable under section 237(a)(2)(A)(i) or (ii) of the INA. In addition, aliens deportable for committing at least two crimes of moral turpitude for which a sentence of at least one year may be imposed are subject to expedited removal under section 238(a) of the INA, and final orders of removal issued against such aliens are not subject to judicial review. Finally, section 236(c) of the INA subjects to mandatory detention aliens who: (1) are deportable for having committed any offense covered by section 237(a)(2)(A)(ii); or (2) are deportable for having committed any offense covered by section 237(a)(2)(A)(i) for which the alien has been sentenced to a term of imprisonment of at least one year.
Section 237(a)(2)(A)(iii) covers aliens who are convicted of an "aggravated felony" at any time after entry. Provisions regarding aggravated felons and other criminal aliens were added to the INA by the Anti-Drug Abuse Act of 1988. As originally enacted, the term "aggravated felony" was defined to include murder, any drug trafficking crime as defined in 18 U.S.C. § 924(c)(2), or any illicit trafficking in any firearms or destructive devices. The terms also covered any attempt or conspiracy to commit any of the specified crimes, but was limited to crimes committed in the United States. Revisions to the definition enacted in 1990, 1994, and 1996 significantly expanded its coverage.
With these amendments, the number of crimes included in the aggravated felony definition are so numerous that almost all convictions considered felonies under federal law now qualify as aggravated felonies. Some of these crimes include:
(1) offenses relating to engaging in monetary transactions in property derived from certain unlawful activity if the amount of the funds involved exceeds $10,000;
(2) offenses relating to explosives and firearms;
(3) theft or burglary offenses for which the term of imprisonment imposed is at least one year;
(4) offenses relating to ransom;
(5) offenses relating to child pornography;
(6) offenses relating to racketeer influenced corrupt organizations (RICO), for which the term of imprisonment that may be imposed is at least one year;
(7) offenses relating to the owning, controlling, managing, or supervising of a prostitution business;
(8) offenses involving fraud or deceit in which the loss to the victim exceeds $10,000;
(9) offenses relating to tax evasion in which the loss to the government exceeds $10,000;
(10) offenses relating to the smuggling of aliens for commercial advantage when the term of imprisonment imposed is at least one year;
(11) offenses relating to document fraud, for which the term of imprisonment imposed is at least one year;
(12) rape or sexual abuse of a minor;
(13) certain gambling offenses for which a sentence of one year imprisonment or more may be imposed;
(14) offenses relating to reentry after deportation committed by aliens who were previously deported on the basis of aggravated felony convictions;
(15) offenses 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; and
(16) offenses 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.
By far the most common type of offense classified as an aggravated felony is a crime of violence. The IIRAIRA amendment lowering the minimum sentence requirement from five years to one year has greatly expanded the types of criminal conduct that now constitute crimes of violence. In determining whether a crime of violence exists, the Board will analyze first whether the offense is a felony. If the crime is a felony, the second inquiry is whether its commission would ordinarily present a risk that physical force would be used against the person or property of another without regard as to whether the risk develops or harm actually occurs. Using this analysis, the Board and federal courts have held that the following types of convictions constitute crimes of violence:
(1) robbery with a deadly weapon when the alien was sentenced to two and a half years in prison;
(2) driving while under the influence when alien sentenced to two and a half years in prison;
(3) second-degree robbery;
(4) unauthorized use of a motor vehicle;
(5) criminal contempt;
(6) sexual assault of a child;
(7) driving while intoxicated;
(8) first-degree criminal trespass;
(9) sexual battery.
In Matter of Small, the Board set forth its analysis for determining whether misdemeanor sex offenses may constitute aggravated felonies. In so doing, the Board decided to follow federal court precedent holding that a misdemeanor conviction for criminal sexual abuse under state law constitutes sexual abuse of a minor within the scope of the aggravated felony definition. In a decision issued after Small, the Ninth Circuit held that a misdemeanor conviction under a state law prohibiting annoying or molesting a child under the age of 18, did not constitute the aggravated felony of sexual abuse of a minor as defined in INA section (a)(43)(A) because the scope of the conduct required for the offense for which he was convicted was much broader than the sexual abuse conduct proscribed by INA section 101(a)(43)(A). The alien's conviction required an act "objectively and unhesitatingly viewed as irritating or disturbing prompted by an abnormal sexual interest in children," without requiring that the minor have been touched or injured.
The term covers not only the enumerated crimes when committed in the United States, but also when committed in violation of foreign law, provided the term of imprisonment imposed for commission of such violation was completed within the fifteen-year period prior to the removal proceedings. The definition applies to the described offenses whether they are encompassed by federal law or equivalent state law. With regard to the various offenses that are considered aggravated felonies provided the alien is sentenced to a specified term of imprisonment, the IIRAIRA clarifies that an aggravated felony conviction exists if the alien was sentenced to the minimum period of imprisonment specified by the statute without regard to whether part or all of the sentence was suspended or the alien was released early on parole. Interpreting section 101(a)(48)(B), the Board held that an alien who received a suspended sentence for a prison term not to exceed five years, and two years' probation, was sentenced to a five years' imprisonment for immigration purposes. In contrast, the Board ruled that as a result of a criminal court's vacating an alien's one-year prison sentence and revising the sentence to a period of less than a year, his conviction was no longer for an aggravated felony. The Board reasoned that when an alien is resentenced for a crime, the new sentence determines whether the alien received a sentence to confinement for a minimum period that would render the alien deportable as an aggravated felon.
As noted, as revised by the 1990 Act, the aggravated felony term was clarified to include the described federal offenses when they are encompassed by equivalent state law. As a general rule, in deciding whether a prior state court conviction qualifies as an aggravated felony, the Board and the courts employ a categorical approach, under which an offense constitutes an aggravated felony only if the full range of conduct covered by the statute of conviction falls within the "generic definition" of the aggravated felony offense. The court will look only to the statutory definition of the crime and not to the underlying circumstances of the conviction. If there is a conviction under a divisible statute, however, a court may look to the charging paper and judgment of conviction to determine if the actual offense of which the defendant was convicted qualifies as an aggravated felony. Stated differently, if a state statute criminalizes both conduct that does and does not qualify as an aggravated felony, the courts will employ a modified categorical approach under which the courts conduct a limited examination of documents in the record to determine if there is sufficient evidence to conclude that a defendant was convicted of the elements of the generically defined aggravated felony crime. The Second and Ninth Circuits have ruled that an immigration judge cannot use a pre-sentence report (PSR) in determining whether the petitioner was an aggravated felon. The documents that the Board is free to consider in determining whether a conviction under a divisible statute constitutes an aggravated felony include the state charging document, a signed plea agreement, jury instructions, guilty pleas, trans of a plea proceeding, and the judgment. [FN347] The courts have reasoned that a PSR may be unreliable in that it could include allegations that were inadmissible and not proven at trial.
The effective date of the aggravated felony deportation ground is a complex issue. Generally, the Board has applied a two-step approach to determine whether a particular conviction that falls within the definition of section 101(a)(43) may be used to support a deportation charge. The first step is to determine whether a particular conviction is an aggravated felony conviction under section 101(a)(43). Under the first step, the Board held that the term aggravated felony encompassed all convictions described in the statute, whether occurring before, on, or after the date of enactment of the Anti-Drug Abuse Act of 1988, that is, November 18, 1988. The only exceptions to this rule were for offenses that were introduced into the definition by the 1990 Act and the 1994 statute because the latter statutes provide that the added offenses may be considered aggravated felonies only if they were committed on or after the dates of enactment of the respective statutes. If a particular conviction was considered an aggravated felony under section 101(a)(43) under the first part of the Board's test, the second test required an analysis of the immigration consequences of the conviction, for example, whether the conviction could support a deportation charge under 237(a)(2)(A)(iii). Section 7344(b) of the Anti-Drug Abuse Act of 1988 provides that an alien is deportable for an aggravated felony conviction entered after November 18, 1988.
Following the Board's analysis, therefore, it could be argued that an alien is not deportable for an aggravated felony conviction entered before that date. The Board did not directly this latter issue, however. On the other hand, in reaching its conclusion that an alien was ineligible for section 212(c) relief based on the commission of an aggravated felony regardless of the date of conviction, the Board contrasted the lack of any temporal limitations on the restrictions *7-125 on section 212(c) relief with the temporal limitations of section 7344(b).
The IIRAIRA changed the analysis under In re A-A- by adding a sentence to section 101(a)(43) that stated: "Notwithstanding any other provision of law (including any effective date), the [aggravated felony] term applies regardless of whether the conviction was entered before, on, or after the date of enactment of [section 101(a)(43)]." Section 321(b) of the IIRAIRA. The provision implicates the first part of the BIA's test in In re A-A-. As a result, all offenses described in section 101(a)(43) are aggravated felonies regardless of the date of the conviction and the exceptions listed in In re A-A- are no longer valid.
On the other hand, section 321(b) does not implicate the second part of the Board's test in In re A-A-, that is, the immigration consequences inquiry. Therefore, whether aggravated felony convictions entered before November 18, 1988 may support a deportation charge remained unclear. Relying on a savings clause contained in the 1990 Act, the Board has concluded that an alien is deportable for conviction of a crime constituting an aggravated felony regardless of whether the conviction was entered before, on, or after November 18, 1988. Section 602(c) of the 1990 Act states in pertinent part, "[e]xcept as otherwise specifically provided in such section and subsection (d), the provisions of such section, as amended by this section, shall apply to all aliens described in subsection (a) thereof notwithstanding that . . . the facts, by reason of which an alien is described in such subsection, occurred before the date of the enactment of this Act." The Board ruled that section 602(c) eliminated the temporal limitation set forth in section 7344(b) of the Anti-Drug Abuse Act of 1988. Specifically, the Board held that the only limitations placed on the deportability of aggravated felons are now included in section 602(c). Interpreting this section, the Board held that the first set of limitations are those specifically included in section 241(a), as revised by the 1990 Act, that is, the crime for which the alien was convicted must constitute an aggravated felony as defined in section 101(a)(43). The second limitation relates to the cross-reference to section 602(d) which provides that in order for the 1990 Act deportation grounds to apply, the order to show cause must commence on or after March 1, 1991.
The Eleventh Circuit has upheld the Board's interpretation of section 602(c), ruling that the Board's construction of the savings clause was reasonable. In reaching its conclusion, the court relied on its prior determination in Lopez-Amaro v. INS. The alien attempted to distinguish his own case by arguing that Congress made substantive changes to the firearm deportation provisions but merely redesignated the aggravated felony ground. The court rejected this argument noting that the statute's legislative history indicates that Congress intended to comprehensively revise all existing grounds for exclusion and deportation. The Second and Fourth Circuits have joined the Eleventh Circuit in ruling that the 1990 Act superseded the ADAA's date restriction.
The Board later clarified its holding in Lettman, ruling that pre-1988 convictions for crimes that did not come within the definition of an aggravated felony until after the ADAA may also render an alien deportable under the aggravated felony ground. Unlike the alien in Lettman who was convicted of third-degree murder, an offense that has been included in the definition of an aggravated felony since the term was first used in the ADAA, the alien in Truong was convicted of a crime added to the definition of an aggravated felony by the 1990 Act (that is, second-degree robbery which was held to be a crime of violence). The Board reasoned that section 321(b) of the 1996 Act sought to do away with the different effective dates and to establish an aggravated felony definition that would be applied to all criminals, regardless of the date of conviction.
Another provision of the IIRAIRA states that the amendments made by section 321 (eliminating the temporal limitations of the aggravated felony definition) apply to "actions taken" on or after the date of the enactment of the statute, that is, September 30, 1996. section 321(c) of the 1996 Act. The Board has held that this provision should not be interpreted to mean that revisions made to the definition of the aggravated felony definition (including the elimination of temporal limitations by section 321(b)) should not apply to cases that were pending on September 30, 1996. In so doing, the Board has held that its consideration of a case after September 30, 1996, constitutes an "action taken" within the meaning of section 321(c). Courts have upheld this interpretation. The practical effect of these holdings is that section 321(c) does not limit the 1996 Act amendments (relating to the aggravated felony definition) to those cases commenced after September 30, 1996. All cases that were pending on appeal on September 30, 1996, are also covered by the new definition.
Section 238(a) of the INA requires the expedited removal of aliens convicted of "aggravated felonies." A conviction for one of these offenses will lead to a conclusive presumption of the alien's deportability. Removal proceedings before an immigration judge initiated under section 240 against an aggravated felon must be conducted on an expedited basis. The DHS must initiate and, to the extent possible, complete special removal proceedings (including administrative appeals) while the aggravated felon is serving the prison term.
Another significant provision bars the release from custody of aliens convicted of aggravated felonies while their deportability is being determined even if they have completed their criminal sentences, or have been released on parole, supervised release, or probation. The provision permits the release of an aggravated felon only if the release of the alien is necessary to provide protection to a witness, a potential witness, a person cooperating with an investigation into major criminal activity, and the alien satisfies the DHS that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding. The severity of the offense committed by the alien must be considered in the release decision. Aggravated felons who do not fall within this exception may not be released under any circumstances.
The Immigration Service authorizes the use of two additional procedural mechanisms to remove aggravated felons apart from expedited proceedings before an immigration judge under section 240 of the INA. First, an aggravated felon who is not a lawful permanent resident or is only a conditional resident under section 216 of the INA may be removed under a streamlined administrative removal process. The provision allows the DHS to bypass the regular immigration judge removal proceedings under section 240. Second, aggravated felons may be removed through a judicial removal process under which a U.S. district court may order removal during sentencing an alien who has been convicted of, or has entered a guilty plea to, a crime which renders the alien removable under section 238(d) of the INA.
The INA also makes aggravated felons ineligible for various forms of relief from removal. Such aliens are ineligible for cancellation of removal under section 240A of the INA or voluntary departure under section 240B of the INA, or asylum under section 208 of the INA. In addition, an aggravated felon who has been sentenced to an aggregate term of imprisonment of at least five years is ineligible for withholding of removal under section 241(b)(3) of the INA.
Appellate rights are also limited for aggravated felons. Section 242(a)(2)(C) of the INA bars judicial review of a final order of removal under section 240 issued against an alien who is deportable for having been convicted of an aggravated felony. The only exceptions to this bar relate to aggravated felons ordered removed under the administrative removal process set forth in sections 238(b) and 238(d) of the INA. In the latter cases, judicial review under section 242(a)(1) of the removal order is permitted.
Finally, the exclusion bar on readmission by persons ordered removed as aggravated felons is permanent. As a result, aggravated felons ordered removed must seek permission from the DHS to be readmitted to the United States.
Section 237(a)(2)(A)(iv) renders deportable an alien who is convicted of a violation of 18 U.S.C. § 758 relating to high speed flight from an immigration checkpoint. This offense and deportation ground was added by section 108 of the IIRAIRA. "High speed flight" is defined as fleeing or evading an immigration checkpoint in a motor vehicle in excess of the legal speed limit. Persons convicted of such crimes may be fined and imprisoned for up to five years. The deportation ground went into effect on September 30, 1996.
[B] Offenses Relating to Controlled Substances: § 237(a)(2)(B)
The second group of deportation grounds also covers aliens convicted of an offense relating to a controlled substance, as well as drug addicts and abusers. The key difference from the exclusion provisions is that a conviction is required with regard to violation of laws relating to controlled substances.
Under the terms of the deportation ground, an alien is not deportable in the case of conviction of a single instance of possession of thirty grams or less of marijuana for one's own use. This provision is an exemption from the deportation ground and is therefore different from the waiver of the exclusion ground available under the same circumstances.
Note: Legislation enacted in 1996 contains several provisions which affect criminal aliens subject to removal, including aliens deportable for committing an offense covered by section 237(a)(2)(B). Most significantly, the 1996 legislation subjects such aliens to expedited deportation under section 238(a) of the INA, bars such aliens from obtaining judicial review of their final orders of removal, and subjects such aliens to mandatory detention under section 236(c) of the INA.
[C] Firearms Offenses: § 237(a)(2)(C)
Section 237(a)(2)(C) of the INA covers designated firearms offenses and was significantly revised by the 1990 Act to broaden the types of offenses that can lead to deportation.
An alien was deportable under section 241(a)(14) for conviction of possession, or carrying, of an automatic or semiautomatic weapon or sawed-off shotgun. A conviction under state or federal law was prima facie evidence of deportability. The revised deportation ground covers an alien who is convicted of any law regarding purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying in violation of law any weapon, part, or accessory which is a firearm or destructive device, as defined by 18 U.S.C. § 921(a). In addition, an amendment to this deportation ground in 1994 also renders deportable any alien convicted of "attempting or conspiring" to purchase, sell, offer for sale, exchange, use, own, possess, or carry a firearm, as defined in 18 U.S.C. § 921(a).
Prior to 1996, much controversy had arisen with regard to whether aliens found deportable under section 237(a)(2)(C) were eligible for relief under 212(c). The Board had taken the view that section 212(c) relief was unavailable to a resident alien deportable under section 237(a)(2)(C) because this ground for deportation had no comparable ground for exclusion. These holdings created an anomaly under pre-1996 law, since certain aliens convicted of more serious crimes which rendered them deportable under a different ground could apply for relief under prior section 212(c). This anomaly was removed by legislation enacted in 1996 which makes aliens deportable under section 237(a)(2)(C) statutorily eligible for cancellation of removal under section 240A(a) (the current version of section 212(c) relief).
Several Board cases suggest avenues of relief for aliens charged with being deportable under section 237(a)(2)(C). One avenue is to challenge the charge that the alien is deportable under section 237(a)(2)(C) of the INA. Such challenges have been successful with regard to sentence enhancement statutes in which use of a firearm is not an element of the offense but is rather used to impose an additional term of imprisonment. Another avenue for relief is available to adjustment-of-status applicants. The Board held that a weapons conviction does not preclude a finding of admissibility in connection with an application for adjustment of status under section 245(a) of the INA, and it may not serve as a ground of deportability if the alien's status is adjusted to that of a lawful permanent resident.
Note: Legislation enacted in 1996 contains several provisions which affect criminal aliens subject to deportation, including aliens deportable for committing an offense covered by section 237(a)(2)(C). Most significantly, the 1996 legislation subjects such aliens to expedited deportation under section 238(a) of the INA, bars such aliens from obtaining judicial review of their final orders of removal, and subjects such aliens to mandatory detention under section 236(c) of the INA.
[D] Miscellaneous Crimes: § 237(a)(2)(D)
Section 237(a)(2)(D) of the INA, makes deportable aliens convicted of a number of enumerated offenses, all of which had been included in section 241(a)(17) and (18) of the INA prior to the revision of the deportation grounds by the 1990 Act. Those sections contained provisions relating to national security, prohibitions on manufacture of explosives, espionage, violations of the Selective Service Act, trading with the enemy, and interfering with the foreign relations or neutrality of the United States. Not all of the offenses listed in those sections are included in the revised deportation ground; in addition, the offenses listed in section 241(a)(15) and (16) of the INA prior to the 1990 Act amendments have no analogue in the revised deportation grounds.
*7-132 Whether an alien is actually deportable based on a conviction under one of the enumerated statutes depends on a determination by the government that the conviction makes the alien an "undesirable resident" of the United States, and this determination can be based on factors in addition to the actual conviction.
Note: Legislation enacted in 1996 contains several provisions which affect criminal aliens subject to deportation, including aliens deportable for committing an offense covered by section 237(a)(2)(D). Most significantly, the 1996 legislation subjects such aliens to expedited deportation under section 238(a) of the INA, bars such aliens from obtaining judicial review of their final orders of removal, and subjects such aliens to mandatory detention under section 236(c) of the INA.
[E] Domestic Violence: § 237(a)(2)(E)
Section 237(a)(2)(E)(i) renders deportable aliens convicted, at any time after entry, of a crime of domestic violence, stalking, child abuse, child neglect, or child abandonment. This deportation ground was added by section 350 of the IIRAIRA and it is applicable to convictions occurring after September 30, 1996. A "crime of domestic violence" includes any crime of violence (as defined in 18 U.S.C. § 16) against a person committed by a current or former spouse of the person, by an individual with whom the person shares a child in common, by an individual who is cohabiting or has cohabited with the person as a spouse, by an individual similarly situated to a spouse, or by any other individual against a person who is protected from that individual's acts under the domestic or family violence laws of the United States or any state or unit of local government.
Section 237(a)(2)(E)(ii) renders deportable an alien who at any time after entry is enjoined under a protection order issued by a court and whom the court determines has engaged in conduct that violates the portion of the protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued. This deportation ground was also added by section 350 of the IIRAIRA and is applicable to violations of court orders occurring after September 30, 1996. For purposes of removal under this new deportation ground, the term "protective order" means any injunction issued for the purpose of preventing violent or threatening acts of domestic violence, including temporary or final orders issued by civil or criminal courts.
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