In order to understand the impact that convictions can have on Immigration and naturalization issues involving our clients, it is first necessary to understand the underlying scheme of punishment and penalties imposed by the immigration code. Immigration law over the last three years has become nothing short of draconian. Crimes that we would scarcely hesitate to plea to are now deportable offenses. In an interesting sidebar, the term “deportation” was replaced by the Illegal Immigration and Immigrant Responsibility Act of 1996 (IIRIRA) with the term “removal” for all post-IIRIRA cases.
Removal is an extremely harsh penalty, with severe repercussions not only for the alien, but also for his or her family. Therefore take care to verify the immigration status of your client and ensure that criminal proceedings and a plea, admission of guilt, or a conviction will not have immigration consequences.
Let’s debunk some common myths about immigration law:
MYTH:You can’t be deported – you have a green card. WRONG.Even long-term Legal Permanent Residents (LPR’s) can – and will – be removed.
MYTH: If you are married to a US citizen, it will cure all immigration problems. Again, WRONG – marriage to a US citizen may not help, especially if the marriage is post-conviction.
MYTH: If you are married to a US Citizen, you automatically become a citizen. WRONG. You do not “automatically” become a citizen. You do not “automatically” get a “Green Card”. What you do get is the right to live and work in the USA provided your application for a green card is pending adjudication at the INS.
MYTH: If your criminal record is expunged, you cannot be deported. WRONG. An expungement does nothing in the immigration setting anymore. Immigration applications routinely require all record of convictions, including those expunged, with differing immigration consequences, including removal.
MYTH: If your client is not convicted, he or she does not face removal. WRONG. Even the mere admission of facts in order to qualify for diversionary programs, or deferrals of judgment pending probation or completion of mandated treatment have the same effect as if the crime did occur and the accused was convicted. The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) changed the definition of “conviction” under immigration law.
MYTH: Immigration law is simply “filling out a form”. WRONG. While forms are a part of any administrative law process, the art of filling out a form and subsequently supporting the application are skills best left to lawyers. Clients who debunk an attorney’s concerns about their immigration status and potential deportation need to be advised of the harsh realities of penalties under the immigration law.
Just what exactly are deportable or removable crimes?
The immigration act has constantly been revised and updated to include more and more offenses as deportable or removable crimes. Existing statutes have been modified to lower the removability threshold, thereby ensnaring more and more aliens.
Two sections of the Immigration and Nationality Act (INA) which together provide most of the basis for removal are INA § 237 (deportable crimes) and § 101(a)(43) (aggravated felonies under the INA).
INA § 237 lists various offenses for which aliens can be deported. The section includes even minor crimes involving “moral turpitude”. Aliens can also be deported for commission of aggravated felonies, listed in INA § 101(a) (43). Controlled substance violations make up another major ground for deportations. Even crimes committed many years ago can become the basis for removal. The section also makes aliens convicted for firearms offenses – whether state or federal – deportable. New law, enacted in the IIRIRA, makes conviction for domestic violence, stalking, violation of protective orders, crimes against children and child abuse removable offenses. In addition, INA § 237 has other provisions including removability for an alien having voted in elections, illegal entry, and national security grounds.
In most instances, immigration issues will surface in a criminal setting involving one of the above offenses. Commonly, aliens are removed for committing aggravated felonies. What is an aggravated felony under immigration law?
Aggravated Felonies under the Immigration Act
INA § 101(a) (43) – the definition section of the Act – sets forth the crimes currently considered “aggravated felonies” under immigration law. Please note that the classification of some of these crimes as aggravated felonies may not be paralleled in State or Federal law. Oftentimes, a Federal statute is cross-referenced solely as a “yardstick” by which to gauge the severity of an offense. Even though the Federal statute may not classify that offense as an aggravated felony, the INA may do so. Therefore it is doubly important to review the INA prior to pleading to an offense whether in state or federal proceedings.
The term “aggravated felony” applies to an offense whether in violation of Federal or State law and applies to such an offense in violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years. The date of conviction – whether before or after the enactment of the specific ground of aggravated felony as a removable offense – is immaterial!
Which brings us to the next issue – what is a conviction for immigration purposes? Again, the INA, at § 101 (a) (48) holds the key.
The Immigration Law’s Definition of “Conviction”
The INA defines “conviction” as a formal judgment of guilt or, if adjudication of guilt has been withheld, where-
| (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and |
| (ii)the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed. |
| Whether a sentence is actually served or is suspended is immaterial. |
“Restraint on liberty” includes incarceration, probation, a fine or restitution, or community-based sanctions such as a rehabilitation program, a work-release or study-release program, revocation or suspension of a driver’s license, deprivation of nonessential activities or privileges, or community service. Matter of Ozkok, 19 I&N Dec. 546 (BIA 1988). I would therefore submit that admission to a rehabilitative program which requires that the alien admit, on the record, “facts sufficient to warrant a finding of guilt” is a restraint on liberty and meets the two prongs of the conviction definition, subjecting the alien to removal.
Faced with this seemingly impenetrable thicket of statutory authority, it is apparent that an alien in the criminal justice system may be removed for all but the most minor offenses. Indeed, since the enactment of the IIRIRA, more aliens have been removed from the USA than ever before. The INS crows about its successes in “cleaning up” our society. Unfortunately, that “clean up” is destroying families and lives built up over many years in the USA. In many instances, the aliens removed have no ties to their country of origin. They have spouses and children in the USA. Their families will be destitute if they were removed. Yet the machinery of removal moves inexorably forward, placing even petty thieves or misunderstood spouses in peril of deportation.
In a related development, the machinery of removal recently received a shot in the arm: the US Department of Justice, which oversees the INS and the Board of Immigration Appeals (which hears appeals taken from removal decisions by Immigration Judges) recently placed into effect a regulation which allows for appeals to the Board to be heard by single judge panels! Certainly, this regulation removes the added protection of review, discussion and differing opinions and thus effectively strikes at the heart of an appellate panel’s collective wisdom.
Some common situations in which immigration issues emerge
1. Domestic violence. The INA makes no bones about deporting aliens who are convicted of crimes of domestic violence, stalking, violation of protective orders, or child endangerment. If your client is accused of these crimes, be advised the immigration consequences of conviction are severe.
2. Drug-related offenses. Drug crimes are probably the leading cause for removals. Keep in mind that even drug offenses committed many years ago can – and do – become ammunition for the INS in its’ zeal to punish criminal aliens and Congress’ “get tough on crime” policy
3. Drunk driving. The BIA recently held that a repeat DUI offender was an aggravated felon and ordered him removed. Matter of Magallanes, Interim Decision 3341 (BIA 1998). (Please see a more detailed examination of the Magallanes decision on this website under the article “Drink, Drive and be Deported”)
4. Naturalization. Naturalization may not be an option. Naturalization requires that several criteria be met. Requirements for naturalization include residence, good moral character, attachment to the principles of the Constitution, and favorable disposition to the United States. In the course of the naturalization process the applicant must disclose all prior offenses, even those expunged. If the INS determines some of those offenses are serious enough to warrant further investigation, the INS will either request the applicant to provide certified copies of court records or obtain the records directly from the court. If the offense rises to the level of a removable offense, the INS will deny the application for Naturalization and place the alien in removal proceedings. This can happen even for crimes committed years ago! The alien must be aware of the dangers of proceeding with a naturalization application if he or she has a record.
In addition, if the alien has several minor – though not deportable – crimes, the alien’s application may be denied on the grounds that he or she does not possess the necessary “good moral character”.
Relief from Removal:
There are several avenues for relief under the Immigration Act. Unfortunately, those avenues are restricted and oftentimes aliens will not qualify under the stringent standards imposed by those requirements. Relief from removal is called “Cancellation of Removal”. Two standards exist for cancellation under INA § 240A.
The more lenient standard applies to LPR’s who have been in the USA for at least 7 years, of which at least the last 5 have been spent as LPR’s. Unfortunately, this relief is not available for aggravated felons.
The more burdensome standard applies to aliens who have stayed in the USA illegally, for 10 years or more. Those aliens must prove, (1) residency , (2) good moral character, (3) no convictions under INA § 212 (a)(2) [not excludable under criminal grounds], 237 (a)(2) or 237 (a)(3), and lastly, (4) that their removal will result in “exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.”
What is “extreme hardship?” The federal courts have held, for example, in Perez v. INS, that “(e)xtreme hardship’ is hardship that is unusual or beyond that which would normally be expected’ upon deportation. The common results of deportation are insufficient to prove extreme hardship.” Perez v. INS, 96 F.3d 390, 392 (9th Cir. 1996) (quoting Hassan v. INS, 927 F.2d 465, 467 (9th Cir. 1991)). “(t)he uprooting of family and separation from friends does not necessarily amount to extreme hardship but rather represents the type of inconvenience and hardship experienced by the families of most aliens being deported”. Shooshtary v. INS, 39 F.3d 1049 (9th Cir. 1994). Silverman v. Rogers, 437 F.2d 102, 107 (1st Cir. 1970) [cert. denied, 402 U.S. 983 (1971)], stated that “(e)ven assuming that the federal government had no right either to prevent a marriage or destroy it, we believe that here it has done nothing more than to say that the residence of one of the marriage partners may not be in the United States”. It is clear from this line of cases that “exceptional and extremely unusual hardship” (a higher standard than mere “extreme hardship”) is not an easy standard to meet.
In summary, the time to vigorously defend a client is at the criminal proceedings, whether state or federal. If the case proceeds to the removal process, the client has extremely limited avenues for relief, and in the case of an aggravated felon, perhaps none!
What should an attorney do when faced with immigration issues?
A. Ask your client: Is he or she a US citizen? If not, a BIG red flag should go up.
B. Be aware of all the facts. What is the client’s immigration status in the USA? Does the client have a “green card”? For how long has the client been an LPR? You should have these facts down before you call an immigration attorney for advice.
C. What are the specifics of the offense? Is it a deportable offense?
D. Does the client have any prior convictions? What are the specifics?
E. Are there any equities in the case? Family? Employment? Ties to the community?
F. Severity of the offense and availability of diversionary programs (without admission of guilt or imposition of a sentence – even if suspended)
G. Get help – do not be afraid to ask, get co-counsel or refer a case to an attorney who has handled similar cases before. No fee is worth the heartache and anguish caused to a client who is removed from his or her family and life in the USA.
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Copyright Farhad Sethna 2000 All Rights Reserved