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Phone 312-380-6376 | 847-282-4723. Chicago Immigration lawyer. Confidential consultation.

Criminal Offenses. (A) General crimes:

(i) Crimes of Moral Turpitude. Any alien who - (I) is convicted of a crime involving "moral turpitude" committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under section 1255(j) of this title) after the date of admission, and (II) is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable.

(ii) Multiple Criminal Convictions. Any alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial, is deportable.

(iii) Aggravated Felony. Any alien who is convicted of an aggravated felony (Sec.1101(a)(43) at any time after admission is deportable.

Classes of Deportable Aliens, United States Code, Title 8 - Aliens and Nationality, Chapter 12 - Part IV, Inspection, Apprehension, Examination, Exclusion, and Removal; also, Definitions, the term ''Aggravated Felony'', Sec.1101(a)(43), Immigration and Nationality Act.)

CRIMINAL ALIENS, AGGRAVATED FELONS AND REMOVAL FROM THE U.S.

For many non-citizens, their first meeting with the immigration service is when they are arriving at a port of entry to the United States. This can be an airport, a seaport, or a border crossing point. Whenever an alien attempts to enter the United States, he or she must convince the immigration officer that the purpose of the entry is lawful, complies with the type of visa that they are carrying, and that they are otherwise admissible to the United States. In other words, if they are not admissible, because of one of the grounds of inadmissibility in section 212 of the Immigration Act, they will not be permitted to enter the United States.

The immigration act distinguishes between those aliens who are inadmissible to the United States, and those who are in the United States and subject to deportation. Section 212 of the Immigration & Nationality Act lists ten (10) general classes of aliens who are ineligible to receive visas and are ineligible for admission to the United States.

Excludable Aliens: 8 USCS § 1182 (2002) pdf printable file.
1.93 MB, Estimated download time: < 11 minute(s) based on 28.8 modem connection.

Statutes:

 INA §§ 212 ,  213A
 
8 USCS § 1182 ,  1183a

Regulations: 8 C.F.R. § 212
22 C.F.R. §§ 40.1-40.301
INS Operations Instructions, FAM, etc.
OI § 212,
 9 FAM §§ 40.31-40.35 ; 40.61, 40.62

  • I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal;
  • I-601, Application for Waiver of Ground of Excludability;
  • Waivers.

Section 237 of the Act lists the general classes of aliens who are deportable from the United States. These contain six (6) main classifications, within which are contained numerous sub-classifications.

General classes of deportable aliens 8 USCS § 1227 (2002) 1.0 MB printable PDF file, Estimated download time: < 6 minute(s) based on 28.8 modem connection.

Statutes:

 INA § 237
 8 USCS § 1227

1. Aliens who were inadmissible at the time of entry or adjustment of
status, or who have otherwise violated their status, such as those who
have worked without authorization or have overstayed their time in the
United States. Also included are aliens whose conditional residence
status has been canceled, those who had engaged in alien smuggling, and
aliens who have engaged in marriage fraud.

2. Aliens who have been convicted of a crime involving moral turpitude
committed within five years after the date of admission, where the
maximum sentence, which could be imposed for the crime, is one year or
longer, is deportable. Also, an alien who at any time after admission is
convicted of two or more crimes involving moral turpitude is deportable.
These deportation grounds also include aliens who are convicted of
controlled substance violations (other than a single offense involving
possession for one's own use of 30 grams or less of marijuana), as well
as drug abusers and drug addicts, and those who have been convicted of
any firearms violations. The new act also makes deportable those aliens
who have been convicted of a crime involving domestic violence,
stalking, or child abuse. Also, any alien who is convicted of an
aggravated felony at any time after admission is deportable. An
aggravated felony is described in Section 101 (a) (43) of the
Immigration Act. These are crimes which the Immigration Service
considers particularly serious, and which will prevent nearly all forms
of relief.

3. An alien is deportable for failure to register a change of address
(unless the alien establishes that such failure was reasonably excusable
or was not willful); for any conviction related to the use of false
documents; or for falsely claiming US citizenship.

4. An alien may also be deported for a violation of security and related
grounds such as terrorist activities, engaging in actions which could
have potentially serious adverse foreign policy consequences for the
United States, and if he or she has engaged in Nazi persecution or
genocide.

5. Any alien who becomes a public charge within five (5) years of entry,
from a cause that did not arise after entry, is also deportable.

6. Finally, any alien who has voted in violation of any Federal, State,
or local law is deportable.

MANDATORY DETENTION WITHOUT BOND PRIOR TO HEARING: obtaining a bond to be released from immigration custody. Apprehension and detention of aliens.

Custody & Bond: INA Sec. 236(c)(1), 8 U.S.C.S. Sec. 1226(c)(1)
(c) Detention of criminal aliens.

(1) Custody. The Attorney General shall take into custody any alien who -

(A) is inadmissible by reason of having committed any offense covered in section 1182(a)(2) of this title (INA Sec. 212);

(B) is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii) (two or more crimes involving moral turpitude not arising out of a single scheme of criminal misconduct); 1227(a)(2)(A)(iii) (aggravated felony); (B) controlled substances; (C) certain firearm offenses; (D) miscellaneous crimes of this title;

(C) is deportable under section 1227(a)(2)(A)(i)(convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under section 1255 (j) of this title) after the date of admission, and on the basis of an offense for which the alien has been sentence* to a term of imprisonment of at least 1 year, or

(D) is inadmissible under section 1182(a)(3)(B) of this title or deportable under section 1227(a)(4)(B) of this title, when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.

* Probably should be ''sentenced''

The Immigration and Nationality Act Sec. 236(c)(1), 8 U.S.C.S. Sec. 1226(c)(1), states that the attorney general shall take into custody any alien who is removable as an aggravated felon under 8 U.S.C.S. Sec. 1227(a)(2)(A)(iii) or a number of other sections. A person taken into custody under Sec. 236(c)(1) may be released under Sec. 236(c)(2), but only if the attorney general decides pursuant to 18 U.S.C.S. Sec. 3521 that release of the alien from custody is necessary to provide protection to a witness, a potential witness, a person cooperating with an investigation into major criminal activity, or an immediate family member or close associate of a witness, potential witness, or person cooperating with such an investigation, and the alien satisfies the attorney general 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. Section 3521 is the witness protection program.

Under current regulatory enforcement practice the '96 law allows for the mandatory detention without bail of all aggravated felons released after October 9, 1998 regardless of whether they actually pose a danger to the community or whether they are a flight risk. That the person is a lawful permanent resident with roots in the community does not legally matter. There is no administrative or judicial review of the INS detention. However, any immigrant who completed his or her criminal sentence prior to October 9, 1998 can be considered for release from detention. If the INS does not release the immigrant, he or she can apply for a bond redetermination hearing before an immigration judge, and can appeal any negative determination to the Board of Immigration Appeals (BIA). The provisions of section 236(c) of the Act "shall apply to individuals released after" October 8, 1998, the date on which the Transition Period Custody Rules expired. See, Matter of Adeniji, Interim Decision #3417 (BIA 1999); 8 C.F.R. Sec. 236.1(c)(8)(2000). (.pdf file)

The mandatory detention provisions of section 236(c) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1226(c) do not apply to an alien who was convicted after the expiration of the Transition Period Custody Rules-October 8, 1998, but who was last released from the physical custody of state authorities prior to the expiration of the Transition Rules and who was not physically confined or restrained as a result of that conviction. In re Neville George WEST, Interim Decision #3438, October 26, 2000. (.pdf file)

A criminal alien who is released from criminal custody after the expiration of the Transition Period Custody Rules is subject to mandatory detention pursuant to section 236(c) of the Immigration and Nationality Act, 8 U.S.C. § 1226(c) (Supp. V 1999), even if the alien is not immediately taken into custody by the Immigration and Naturalization Service when released from incarceration. Matter of Rojas, 23 I&N Dec. 117 (BIA 2001) ID #3451. (.pdf file)

Post order Custody Review:

Indefinite Detention of Deportable Aliens Unconstitutional: After a final removal order is entered, an alien ordered removed is held in custody during a 90-day removal period. If the alien is not removed in those 90 days, the post-removal-period detention statute authorizes further detention or supervised release, subject to administrative review. Zadvydas v. Davis et al. Together with No. 00—38, Ashcroft, Attorney General, et al. v. Kim Ho Ma, on certiorari to the United States Court of Appeals for the Ninth Circuit. (06/28/01)

BIA: Procedural Reform to Improve case management.; Final Rule (8-26-02)

The new regulations go into effect on September 25, 2002.
These regulations reduce the size of the Board to 11 members, mandating
review by single Board members instead of panels of three; impose very
tight briefing schedules (detained persons must submit their appeal
briefs within 21 days, simultaneously with the government’s brief and
without the chance to see the government’s arguments), and severely
circumscribe the discretion of BIA Members to review the facts of the
case before them. (Printable pdf version)

FALLS CHURCH, Va, August 13, 2002

Proposed Rule Published to Implement Supreme Court's St. Cyr Decision.
St. Cyr Rule Rule Implements Procedures for Certain Criminal Aliens
Seeking Section 212(c) Relief from Deportation or Removal.

(Printable pdf version)

The Executive Office for Immigration Review published a proposed rule in
the Federal Register establishing procedures for eligible lawful
permanent residents (LPRs) with certain criminal convictions, prior to
April 1, 1997, to apply for relief from deportation or removal under
former section 212(c) of the Immigration and Nationality Act. This
relief is available to eligible individuals who are currently in
immigration proceedings, who may be placed in removal proceedings, or
who have completed immigration proceedings and are under final orders of
deportation or removal. It does not apply to those who have already been
deported from the United States. This proposed rule implements the U.S.
Supreme Court's decision in INS v. St. Cyr, 121 S.Ct. 2271 (2001). It
sets forth procedures for certain lawful permanent residents to apply
for discretionary relief from deportation or removal under former
section 212(c) of the Immigration and Nationality Act (INA)

Until 1996, under section 212(c) certain LPRs, who resided in the United
States for at least seven years and had committed a crime, could seek
relief to avoid deportation on criminal grounds. In considering a grant
of relief under section 212(c), an Immigration Judge would weigh
negative factors, such as the severity of the crime, against positive
factors, such as the individual's rehabilitation and ties to the
community.

Congress sharply curtailed section 212(c) relief through provisions of
the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and
then eliminated this relief in the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (IIRIRA).

On June 25, 2001, the Supreme Court decided in INS v. St. Cyr that LPRs
– whose criminal convictions were obtained through plea agreements prior
to April 1, 1997 – would be eligible for section 212(c) relief if they
would have been eligible for this relief at the time they were convicted
by plea agreement. The decision provides the broadest form of section
212(c) relief to those with criminal convictions prior to April 24, 1996
(the effective date of the AEDPA legislation). More limited section
212(c) relief is available to those with criminal convictions entered
after April 24, 1996, and March 31, 1997 (the period immediately
preceding the effective date of the IIRIRA legislation).

The St. Cyr decision affects thousands of pending cases in federal and
Immigration Courts, as well as a potentially large number of individuals
who have not yet come before an Immigration Court. This proposed rule
establishes a fair and efficient process to restore section 212(c)
relief to those who are eligible. It is important to note that eligible
individuals under final orders of deportation or removal who are still
in the United States must apply for this relief within 180 days after
the publication of the final rule.

The proposed rule is available on the Internet at
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=2002_register&
docid=02-20403-filed.pdf
.

Information Packet About Detention, Deportation, and Defenses Under U.S. Immigration Law (.pdf)

Materiales Informativos Sobre La Detención, Deportación, y Defensas Bajo Las Leyes De Inmigración De Los Estados Unidos (.pdf)

Removal Issues Concerning Criminal Convictions

Judicial Review of Immigration Decisions

Removal Procedures and Defenses

Arrest and Detention

Detention of Aliens Ordered Removed - Final Rule, December 21, 2000 (pdf)

Asylum Procedures - Final Rule, December 6, 2000 (pdf)

Refugee, and Other Protected Statuses

Overview of Relief & Defenses from Deportation/"Removal" (.pdf)

The term "deportation" has a precise meaning under the immigration law. Generally, a person in removal proceedings may be eligible for voluntary departure. A person who voluntarily departs the United States may apply for a visa abroad at any time. However, obtaining a tourist or student visa will be very difficult since an immigration judge has made a finding that you have violated the immigration laws. On the other hand, some persons are not eligible for voluntary departure, possibly because they have been convicted of a serious crime, or cannot demonstrate that they have good moral character. For example, spending an actual 180 days or more in custody will preclude a noncitizen from showing "good moral character," a common requirement for an undocumented immigrant to receive lawful status, or for a lawful resident to become a U.S. citizen through naturalization from the INS. (8 U.S.C. Sec. 1101(f)(7).) If an immigration judge orders you deported or removed from the United States, you cannot return to this country for a minimum of 10 years without special permission from the Attorney General.

Most, but not all, people who are deported for criminal convictions have either committed felonies or "crime involving moral turpitude". Crimes of moral turpitude would include crimes such as murder, manslaughter, rape, and most theft crimes. However, less serious crimes like simple assault and battery or driving under the influence of alcohol are usually not considered crimes of moral turpitude. You cannot be deported for a traffic ticket. Simple DUI is not a "Crime Involving Moral Turpitude". DUI While Prohibited or Restricted From Driving Because of A Prior DUI Conviction is a"Crime Involving Moral Turpitude". An aggravated (felony) DUI can be a "Crime of Violence / Aggravated Felony".

For many years the basic statutory deportation scheme was this: a crime(s) involving moral turpitude rendered a person deportable, if it was committed less than five years after the person's entry and resulted in a sentence of one year or more confinement. A later-committed crime or one that drew a lighter sentence did not result in deportation. These distinctions reflected Congress's judgment that crimes committed more than five years after entry were outweighed by the ties the alien had developed to the United States in the meantime, and so should not result in deportation. If the person committed two such crimes, however, which were not part of a single criminal scheme, they could render the person deportable no matter when they were committed. And a drug offense or a firearms possession offense ordinarily made a person deportable whenever it was committed.

The Anti-Drug Abuse Act of 1988 added a new concept to the immigration laws, the notion of an "aggravated felony." INA Sec.1101(a)(43). A person found guilty of an aggravated felony committed at any time would be deportable. In 1994, an election year, Congress greatly expanded the definition of aggravated felony. In 1996 -- another election year, and one in which immigration enforcement issues figured prominently -- the aggravated felony definition was again greatly expanded, and this time its impact was made even more sweeping.

The most important forms of relief, for those who have been convicted of crimes, are (1) political asylum and a closely related form of nonrefoulement protection called "withholding of removal," and (2) a waiver, previously called "212(c) relief" and now called "cancellation of removal," which was and is available only to persons who had been lawful residents for at least seven years. With regard to the first, U.S. law precludes asylum and withholding in the case of persons guilty of "particularly serious crimes" (which is consistent with the UN Convention relating to the Status of Refugees). Many convicted criminals are able at least to obtain a lengthy hearing regarding the circumstances of the crime and the claimed risk of persecution if deported. "Cancellation" could be provided in the discretion of the immigration judge, based on a consideration of many factors, including the seriousness of the offense, length of residence, the ties of the alien to the community (including resident family members), and evidence of rehabilitation. Even if the individual has a very weak case for relief from deportation, the claim might consume several years of litigation after a hearing before the immigration judge and after administrative and judicial appeals are exhausted.

Suspension of deportation is currently available only to persons (nonpermanent residents, ie. illegals, out of status. The Attorney General may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, a noncitizen who is inadmissible or deportable from the United States) who have been placed in deportation proceedings prior to April 1st, 1997, and to persons who are NACARA eligible. To qualify for suspension of deportation, the nonpermanent resident must demonstrate 1) that s/he has been continuously physically present in the United States for at least 7 years, and 2) s/he is a person of "good moral character", and 3) that removal from the United States would result in "extreme hardship" to the nonpermanent resident applicant and to any parents, spouse or children who are US citizens or lawful permanent residents.

The hardship factors relevant in evaluating whether deportation would result in extreme hardship to an applicant or to his or her qualified relative, are the following: 1) The age of the alien, both at the time of entry to the U.S. and at the time of applying for suspension 2) The age, number, and immigration status of the applicant's children and their ability to speak the native language and adjust to life in another country 3) The health condition of the alien or the alien's child, spouse, or parent, and the availability of any required medical treatment in the country to which the alien would be returned 4) The alien's ability to obtain employment in the country to which the alien would be returned 5) The length of residence in the U.S. 6) The existence of other family members who will be legally residing in the U.S. 7) The financial impact of the alien's departure 8) The impact of a disruption of educational opportunities 9) The psychological impact of the alien's deportation or removal 10) The current political and economic conditions in the country to which the alien would be returned 11) Family and other ties to the country to which the alien would be returned 12) Contributions to and ties to a community in the U.S., including the degree of integration into American society 13) Immigration history, including authorized residence in the U.S. 14) The availability of other means of adjusting to permanent resident status.

NACARA {Nicaraguan Adjustment and Central America Relief Act} Signed into law on November 19, 1997, NACARA provided blanket eligibility for adjustment of status for many Cubans and Nicaraguans, and allows Salvadorans, Guatemalans, and certain East Europeans to apply for suspension of deportation under the more lenient rules that preceded IIRRAIRA. Any Nicaraguan or Cuban national who was in the U.S. as of December 1, 1995 is eligible for adjustment of status provided he or she applies before April 1, 2000 and is otherwise eligible to receive a visa.

Salvadorans and Guatemalans can apply for suspension of deportation under the more lenient rules that existed prior to IIRRAIRA. Salvadorans who entered the U.S. on or before September 19, 1990 and who before October 31, 1991 registered under the ABC settlement or applied for temporary protected status; Guatemalans who entered the U.S on or before October 1, 1990 and registered for benefits under the ABC Settlement; and Salvadorans and Guatemalans not included in the foregoing who applied for asylum on or before April 1, 1990, are eligible for relief under NACARA. If they can show 7 years of physical presence in the U.S., "good moral character" and "extreme hardship" they may be granted Suspension of deportation. The current law uses the much tougher standard of the 10-year physical presence requirement and the much harder to meet "exceptional and extremely unusual hardship" standard.

Extreme Hardship Presumption. The INS decided to give such a presumption only to applicants who are ABC class members. The agency decided that "the ABC class shares certain characteristics that give rise to a strong likelihood that an ABC class member or qualified relative would suffer extreme hardship if the class member were deported."

To be eligible for the hardship presumption, individuals must not have been convicted of an aggravated felony, and they must be included within one of the following categories: 1. Salvadorans who were present in the U.S. as of Sep. 19, 1990, and who applied for temporary protected status (TPS) or registered for benefits under ABC prior to Oct. 31, 1991, and were not "apprehended at the time of entry after Dec. 19, 1990" 2. Guatemalans who were present in the U.S. as of Oct. 1, 1990, and who registered for benefits under ABC prior to Dec. 31, 1991, and were not "apprehended at time of entry after Dec. 19, 1990" 3. Salvadorans or Guatemalans who filed an application for asylum with the INS on or before Apr. 1, 1990, or who filed an asylum application with the immigration court and served a copy on the INS on or before that date. Essentially, all Salvadorans and Guatemalans who are eligible for benefits under the NACARA as principals receive the presumption of hardship, while those who are eligible only as dependents of principals do not.

NACARA also applies to Eastern Europeans. Nationals of former Soviet Bloc countries who are eligible for NACARA relief do not receive the hardship presumption. These include nationals of the Soviet Union (or any of its successor republics), Latvia, Estonia, Lithuania, Poland, Czechoslovakia (or its successor republics), Romania, Hungary, Bulgaria, Albania, east Germany and Yugoslavia (or its successor republics) who entered the United States on or before December 31, 1990 and applied for asylum on or before December 1991. These eligible class members may pursue and be granted suspension of deportation or cancellation of removal {under the more lenient rules that existed prior to IIRAIRA } without having their continuous physical presence in the United States terminated as of the date of service of an order to show cause or notice to appear. These class members are eligible for this treatment even if they were not in proceedings on or before April 1, 1997. Those convicted of an "aggravated felony" are not eligible for this relief.

Also eligible for relief under NACARA are those who, at the time an eligible class member is granted relief from repatriation under NACARA, are either (1) the spouse or child of such person; or (2) the unmarried son or daughter of such person, provided that if the unmarried son or daughter is 21 years of age or older when the person is granted relief under NACARA, the son or daughter must first establish that he or she entered the United States on or before October 1, 1990. IIRAIRA Section 309 (c)(5)(i)(V), as amended Pub. L. No. 105-100, Sec. 203(a)(1), Nov. 19, 1997, 111 Stat. 2160.

Suspension of Deportation has been replaced by "Cancellation of Removal". Cancellation of removal requires that 1) you be continuously physically present in the United States for 10 years before INS initiates removal proceedings, 2) that you are a person of good moral character, and 3) raises the level of hardship which is required, and does not consider hardship to the noncitizen applicant for relief, only to a qualifying relative(s). The nonpermanent resident must show"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".

The Basic Rule: If a noncitizen, who is convicted in state or federal court of one or more common crimes on the "one-year" list, receives a sentence imposed of one year or more (even if execution is suspended), s/he will be considered an aggravated felon by the INS.

The aggravated felony conviction will trigger many adverse immigration consequences. Cancellation of Removal relief is now wholly unavailable to anyone with an aggravated felony conviction. INA sec. 240A(a)(3). And a separate change further narrowed its availability to those permanent resident aliens whose criminal offense still falls below the aggravated felony threshold, because the required seven years' residence must be acquired before commission of the offense. INA sec. 240A(d).

The One-Year List. The following offenses constitute aggravated felonies only if custody of one year or more was ordered by the sentencing court: accessory after the fact, bribery of a witness, burglary, commercial bribery, counterfeiting, crimes of violence, document fraud, forgery, obstruction of justice, perjury, receipt of stolen property, subornation of perjury, theft, trafficking in vehicles with altered identification numbers.

Definition of Sentence. For immigration purposes, a period of confinement ordered by a judge for an offense, "regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part" will be counted as the term of the sentence.

(1) What counts is the formal sentence to custody ordered by the court. If the court orders a sentence of one year in custody be served, but the defendant actually serves only eight months because of good behavior, s/he has received a "sentence imposed" of one year for immigration purposes, and would be deportable as an aggravated felon if the offense is on the list.

(2) The duration of probation does not count as a sentence to confinement for this purpose. Thus, if imposition of sentence is suspended, and the defendant is placed on probation for three years on condition of serving six months in county jail, that is a "sentence imposed" of only six months, not enough to cause a listed offense to be considered an aggravated felony.

(3) If sentence is imposed, and execution of sentence is suspended, the full sentence imposed nonetheless counts as a sentence imposed for immigration purposes. For example, if the defendant is sentenced to three years in state prison, and execution of that sentence is suspended, and the defendant is placed on probation on condition of serving six months in county jail, that counts as a "sentence imposed" of three years.

(4) Obtaining treatment of the conviction as a misdemeanor under state law does not defeat consideration of the conviction as an aggravated felony if the conviction and sentence meet the definition. In other words, conviction of a listed offense as a misdemeanor, with a sentence imposed of one year, constitutes an "aggravated felony" regardless of the fact that the offense is only a misdemeanor under state law.

(5) Deferred entry of judgment, and similar programs, are ineffective to prevent consideration of a conviction as an aggravated felony, if one year of custody or more is ordered by a court after a guilty or no contest plea.

(6) Concurrent sentences are evaluated as the length of the longest sentence. Indeterminate sentences are counted as the maximum possible sentences.

Sandoval v. Immigration and Naturalization Service, No. 99-3158 (2/12/01). Pet. for Rev., Order of Bd. of Immigration Appeals. Deportation order remanded for entry of dismissal order. (7th Cir.)

In deportation proceedings, INS did not prove by clear, unequivocal, and convincing evidence that Sandoval was convicted of possession of more than thirty grams of marijuana. so as to establish sufficient grounds for deportation order; while alien had originally been convicted of said offense, alien received modified sentence suggesting that state ct. had vacated conviction and found alien guilty of lesser offense. The INS did not prove that the Illinois state court judge exceeded his legal authority when he modified Sandoval's sentence nor did it prove that the modification was ineffective for immigration purposes The instant case is distinguishable from Roldan- Santoyo because it does not involve a state rehabilitative scheme. Adjudication of guilt was not withheld, nor was an alien's criminal record cleared; rather, Sandoval was convicted of an offense and sentenced, and then received a modified sentence.

BIA Rules on "Good Moral Character". In re: Carmen Rocio Casas-Garcia. A75 094 996-New York City. On September 28, 2000 a panel of the BIA (Grant, Guendelsberger, Thomas; opinion by Guendelsberger) held that falsely signing an I-9 does not bar one from showing good moral character for suspension of deportation and voluntary departure purposes. IJ denial of suspension reversed, granted.

In re Miguel Ignacio RODRIGUEZ-RUIZ, Interim Decision #3436 (Decided as amended September 22, 2000 ). A conviction that has been vacated pursuant to Article 440 of the New York Criminal Procedure Law does not constitute a conviction for immigration purposes within the meaning of section 101(a)(48)(A) of the Immigration and Nationality Act, 8 U.S.C. sec. 1101(a)(48)(A) (Supp. IV 1998). Matter of Roldan Interim Decision 3377 (BIA 1999), distinguished. The issue in this case is whether the respondent's conviction, having been vacated, constitutes a "conviction" as defined in section 101(a)(48)(A) of the Act, 8 U.S.C. sec. 1101(a)(48)(A) (Supp. IV 1998), and in accordance with Matter of Roldan, Interim Decision 3377 (BIA 1999).

BIA Overturns Expungement Precedent Matter of Roldan. Reversing 39 years of consistent administrative interpretation the BIA held on March 3, 1999 that a state court action to "expunge, dismiss, cancel, vacate, discharge or otherwise remove a guilty plea or other record of guilt or conviction by operation of a state rehabilitative statute" has no effect. Relying on the statutory definition of conviction, the BIA also eliminated the rule that federal First Offender dispositions under 18 USC Section 3607 and state counterparts to the First Offender Act were not convictions for immigration purposes. The BIA's decision in Matter of Roldan, Int. Dec. #3377 (BIA 1999) superseded the following precedent decisions: Matter of G, 9 I&N (AG 1961); Matter of Ibarra-Obando, 12 I&N 576 (AG 1966); Matter of Manrique, Int. Dec. 3250 (BIA 1995); and Matter of Luviano, Int. Dec. #3267 (BIA 1996).

The Board's decision in Matter of Roldan does NOT consider any of the following to be convictions for immigration purposes: 1) Federal dispositions under 18 U.S.C. Section 3607 2) State convictions reversed on appeal 3) State convictions reversed for legal or constitutional errors in an individual's case, not as the result of the operation of a state rehabilitative statute.

Ninth Circuit Partially Overrules Holding in Matter of Roldan: August 1, 2000 Expungement and Other Relief for First Offense, Simple Possession of a Controlled Substance. The Ninth Circuit reversed the BIA's published decision in Matter of Roldan and held that an expungement and other "rehabilitative relief" will eliminate a conviction of first offense, simple possession of a controlled substance. Therefore a noncitizen within the Ninth Circuit who gained an expungement, deferred adjudication, diversion, or other type of rehabilitative relief cannot be held deportable or inadmissible for having a drug conviction, as long as the conviction was of a first offense, simple possession. In making this ruling, the Court re-affirmed its decisions in Garberding v. INS , 30 F.3d 1137 (9th Cir. 1994) and Paredes-Urresterazu v. INS, 36 F.3d 801 (9th Cir. 1994). These decisions hold that equal protection requires that laws benefiting immigrants in federal court proceedings should also apply to immigrants who have been through state court proceedings. This principle may have other good applications. The court also cited with approval Board Member Rosenberg's dissent in Matter of Roldan.

A firearms offense & application for cancellation of removal. In re Ignacio CAMPOS-TORRES, Interim Decision #3428 - Chicago. Decided March 21, 2000 ( Board of Immigration Appeals)

(1) Pursuant to section 240A(d)(1) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1229b(d)(1) (Supp. II 1996), an offense must be one "referred to in section 212(a)(2)" of the Act, 8 U.S.C. section 1182(a)(2) (1994 & Supp. II 1996), to terminate the period of continuous residence or continuous physical presence required for cancellation of removal.

(2) A firearms offense that renders an alien removable under section 237(a)(2)(C) of the Act, 8 U.S.C. Sec. 1227(a)(2)(C) (Supp. II 1996), is not one "referred to in section 212(a)(2)" and thus does not stop the further accrual of continuous residence or continuous physical presence for purposes of establishing eligibility for cancellation of removal.

The BIA held that because the respondent's application for cancellation of removal., which rendered him deportable under section 237(a)(2)(C) of the Act, is not referred to in section 212(a)(2) of the Act, it did not "stop time" under section 240A(d)(1). The respondent's period of continuous residence began when he was admitted as a temporary resident on May 4, 1988. See, Matter of Cristobal PEREZ, Interim Decision #3389, Decided May 12, 1999. The Notice to Appear was not served until more than 7 years later. See section 240A(d)(1) of the Act. Therefore, the respondent has satisfied the continuous residence requirement of section 240A(a)(2). The respondent's appeal was sustained and remanded to the Immigration Judge for a hearing on the merits of the respondent's application for cancellation of removal.

Burglary to Auto is not "Aggravated Felony": Solorzano-Patlan v. Immigration and Naturalization Service, No. 99-3310 (3/10/00). Pet. for Review, Order of Bd. of Immigration Appeals. Vac'd and rem'd. UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT. (click on highlighted text for full text of case)

The INA defines "aggravated felony" as including a "burglary offense for which the term of imprisonment [is] at least one year." 8 U.S.C. sec. 1101(a)(43)(G) (Definitions, the term''Aggravated Felony'', Sec.1101(a)(43). It is important to note that Congress did not define the term "burglary offense" in the INA and that individual states use different and various definitions to describe what conduct does and does not constitute the crime of burglary in their respective jurisdictions.

The Board Of Immigration Appeals erred in finding that alien's Illinois conviction for burglary of automobile constituted "burglary offense"and "crime of violence" for purposes of alien's removal as "aggravated felon"under 8 USC 1101(a)(43)(F) & (G); "burglary offense" has generic meaning that requires proof of alien's unlawful entry into building or structure, and while instant burglary could have qualified as "crime of violence", instant Immigration Judge failed to examine alien's charging papers to determine whether alien's conviction involved substantial risk of use of physical force.

The United States Court of Appeals for the Seventh Circuit concluded that "burglary offense" in 8 U.S.C. sec. 1101(a)(43)(G) means "burglary" in its "generic sense" and, therefore, according to Taylor (Taylor v. United States, 495 U.S. 575 (1990) ) , must have the basic elements of unlawful entry into, or remaining in, a building or structure, with intent to commit a crime. United States v. Guerrero-Cruz, No. 98-50685, 1999 WL 1128658 (9th Cir. Dec. 7, 1999) (finding the California statutory definition of "burglary" too broad and employing the Taylor definition in interpreting 8 U.S.C. sec. 1101(a)(43)(G)). Therefore, the INS interpreted burglary in too broad a manner and, in the future, [would] be well advised to look at the charging papers in order to ensure that these basic elements are satisfied before it initiates the serious ramifications of removal proceedings based on an alleged "burglary offense."

Because Solorzano-Patlan burglarized a motor vehicle and not a "building or structure," the Court held that his 1995 Lake County, Illinois, conviction under 720 Ill. Comp. Stats. 5/19-1(a), is not a "burglary offense" within the meaning of 8 U.S.C. sec. 1101(a)(43)(G). Accordingly, the BIA erred in using section 1101(a)(43)(G) as a basis for Solorzano-Patlan's removal.

In re Jaime Cesar PEREZ, Interim Decision #3432, Decided June 6, 2000 (BIA): The offense of burglary of a vehicle in violation of section 30.04(a) of the Texas Penal Code Annotated is not a "burglary offense"within the definition of an aggravated felony in section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(43)(G) (Supp. IV 1998)

Jose Francisco Pena-Rosario v. INS, Retroactivity, 212(c), and Jurisdiction. On February 8, 2000, U.S. District Judge John Gleeson of the Eastern District of New York issued a 36-page published decision ruling in favor of five aliens on retroactivity, 212(c), and jurisdiction issues. Here, the federal district court case judge found impermissible "retroactive effect" for criminal conduct occurring before enactment-- regardless of whether or not the alien was in proceedings at the time of the enactment and effective date. (For text of "Cancellation of Removal", click here)

In Jose Francisco Pena-Rosario v. INS, (United States District Court for the Eastern District of New York, 2000 U.S. Dist. LEXIS 1366, February 8, 2000, decided) five habeas corpus petitions were brought by aliens challenging final orders of removal. They each contended that statutory changes from 1996 rendering certain convicted felons ineligible for discretionary waivers of deportation did not apply to them since their criminal conduct took place before enactment of those statutes. The government challenged the court's subject matter jurisdiction over these cases.

After finding subject matter jurisdiction pursuant to the habeas statute, 28 U.S.C. @ 2241, the District Court concluded that the statutory changes did not apply to these petitioners, regardless of whether they were in proceedings before enactment of those statutes, and therefore granted each of them writs of habeas corpus and ordered that their removal orders be vacated so that they could apply for discretionary waivers.

212(c) VICTORY IN CONNECTICUT: On October 28, 1999, Senior District Court Judge Peter Dorsey granted a habeas petition in the case of Rogowski v. Reno, in which he held that 212(c) relief is available where proceedings commenced after AEDPA but the underlying convictions pre-dated AEDPA, and that INA Sec. 236(c) is unconstitutional as applied.

Partial 212(c) VICTORY in Seventh Circuit, Chicago. Jideonwo v. Immigration and Naturalization Service, No. 99-3243 (8/23/00). Pet. for Rev.,Order of Bd. of Immigration Appeals. Rev'd and rem'd. Where, as here, specific facts demonstrated that alien pleaded guilty to aggravated felony before enactment of AEDPA and relied at least in part on availability of deportation waiver under sec. 212(c) of INA, 8 USC Sec. 1182(c) when making plea, AEDPA's sec. 440(d), which made aliens who committed aggravated felonies ineligible for a discretionary waiver.

Sixth Circuit Speaks on Habeas Jurisdiction, Retroactivity: On October 6, 1999, a panel of the Sixth Circuit Court of Appeals affirmed the lower court's ruling in Pak v. Reno holding that habeas jurisdiction under 28 U.S.C. Sec. 2241 survives after IIRAIRA, and that AEDPA Sec. 440(d) (eliminating 212(c) waivers) does not apply retroactively to cases pending on the date the AEDPA was enacted. LEXIS subscribers may find the case at: 1999 U.S. App. LEXIS 24810.

BIA RE-AFFIRMS SORIANO: On October 20, 1999 the BIA re-affirmed its committment to Matter of Soriano, 21 I & N Dec. 516 (BIA 1996; A.G. 1997), despite the fact that several federal circuit courts have struck it down. In that decision, the Attorney General held that section 440(d) of the AEDPA, 110 Stat. at 1277, must be applied to section 212(c) cases that were pending on the date of enactment of that law. The new decision is Matter of Truong, Interim Decision No. 3416.

THE EVOLVING DEFINITION OF "AGGRAVATED FELONY" IN IMMIGRATION LAW- by Socheat Chea

TEXAS DWI = "Crime of Violence / Aggravated Felony: On September 29, 1999, in unrelated cases, the BIA and a panel of the Fifth Circuit Court of Appeals both held that a felony DWI conviction under Texas Penal Code Ann. 49.04 (Supp. 1999) is a "crime of violence'' and therefore an "aggravated felony'' for immigration law purposes.

The BIA case is Matter of Puente-Salazar, Interim Decision No. 3412 (BIA 1999).

The Fifth Circuit case is Camacho-Marroquin v. INS, 1999 U.S. App. LEXIS 23744 (5th Cir. 1999).

In re Miguel Ignacio RODRIGUEZ-RUIZ, Interim Decision #3436 (Decided as amended September 22, 2000 ). A conviction that has been vacated pursuant to Article 440 of the New York Criminal Procedure Law does not constitute a conviction for immigration purposes within the meaning of section 101(a)(48)(A) of the Immigration and Nationality Act, 8 U.S.C. sec. 1101(a)(48)(A) (Supp. IV 1998). Matter of Roldan, Interim Decision 3377 (BIA 1999), distinguished. The issue in this case is whether the respondent's conviction, having been vacated, constitutes a "conviction" as defined in section 101(a)(48)(A) of the Act, 8 U.S.C. sec. 1101(a)(48)(A) (Supp. IV 1998), and in accordance with Matter of Roldan, Interim Decision 3377 (BIA 1999).

PRE-1988 AGGRAVATED FELONY CONVICTIONS POST-LETTMAN- by Ron Wada

 

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