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When Immigration and Criminal Laws Intersect
by Stanley Mailman and Stephen Yale-Loehr

Two decisions handed down on September 29, 1999 remind us how vulnerable noncitizens are under our immigration laws. Conviction of a relatively minor crime for most of us might result in nothing more than a period of probation. For the noncitizen, it could amount to an "aggravated felony" and mandate removal (deportation) from the United States without judicial review, even for a lawful permanent resident who has lived in the United States for decades and has close U.S. family ties.

One of the two recent cases, Camacho-Marroquin v. Immigration and Naturalization Service, 1999 U.S. App. LEXIS 23744 (5th Cir. Sept. 29, 1999), concerns a Mexican national who entered the United States without inspection in 1984. In 1998, convicted of the Texas felony of driving while intoxicated (DWI) as a third-time offender, Camacho-Marroquin ("Camacho") received a five-year suspended sentence and five years of probation. In a proceeding brought by the Immigration and Naturalization Service (INS), he was ordered removed from the United States for conviction of an "aggravated felony."

On petition for review, the Court of Appeals found that it lacked jurisdiction, as the immigration statute not only requires removal of an alien convicted of an aggravated felony, but bars judicial review. The only serious issue the court saw was whether the DWI offense is an aggravated felony.

The pivotal provision is INA §101(a)(43), 8 U.S.C. §1101(a)(43), which defines "aggravated felony" to include over 50 classes of crimes, "whether in violation of Federal or State law." It even covers crimes under the law of a foreign country if the imprisonment was completed within the prior fifteen years. Although it doesn't specify DWI, INA §101(a)(43)(F) does embrace a "crime of violence." For the meaning of that term, it turns to 18 U.S.C. §16, which has two parts. One is "an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another," like assault. See Gjonaj v. INS, 47 F.3d 824 (6th Cir. 1995) (implicitly accepting assault as an aggravated felony). The second is "any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense."

Texas law defines DWI as "operating" a vehicle in a public place while intoxicated, and makes it a felony on the third conviction. Looking to the generic elements of the crime, the Camacho-Marroquin court easily found that DWI involves a substantial risk of physical force against persons or property. The court noted in a parenthetical that "drunk drivers annually cause over 25,000 deaths, approximately one million personal injuries and more than $5 billion" in property damage. Ergo, Camacho's conviction was for an aggravated felony, his removal was mandated, and the court had no jurisdiction.

On the same day, in Matter of Puente-Salazar, Interim Decision No. 3402 (BIA 1999) (en banc), the Board of Immigration Appeals (BIA), faced with a conviction under the same Texas statute, reached the same result. (Camacho's case had taken a different administrative tack: as Camacho had never been admitted to lawful permanent residence, the INS was able to seek his removal through an expedited proceeding without appeal to the BIA.)

Though a lawful permanent resident since 1979, and entitled to a formal hearing and BIA appeal, Puente found himself governed by the same legal syllogism that compelled Camacho's order of removal. Indeed, last year in Matter of Magallanes, Interim Decision No. 3341(BIA 1998), the Board had already found that an enhanced DWI conviction was an "aggravated felony" under Arizona law. Now (with one member dissenting) it refused to accept the distinction urged by Puente, that the Texas statute was broader than Arizona's: "operating" a motor vehicle includes not only driving, but conduct, like turning on the heater, that doesn't involve physical force, even when done by someone drunk. (The Fifth Circuit rejected the same argument in Camacho-Marroquin.)

Supporters of Camacho-Marroquin have called the decision a "stamp of approval" to an INS initiative called Operation Last Call. See Nathan Koppel, Felony DWI Ruled a Crime of Violence, Texas Lawyer, October 12, 1999. Started in 1998, Last Call aims at immigrants who are DWI repeaters. Immigration lawyers criticize the INS for targeting those who pleaded guilty to DWI violations before 1990, when "aggravated felony" was expanded from violent crimes like murder and rape. Even when that term was broadened to include crimes of violence generally, it never occurred to Texas lawyers before Last Call that INS would seek deportation for DWI crimes as aggravated felonies and succeed. Now, any lawyer representing a noncitizen in a DWI case should be on notice.

Other lesser crimes pose similar challenges to the criminal and immigration bars. For example, in New York, the misdemeanor of petty larceny could be classified as an aggravated felony if there is a prison sentence of one year. See United States v. Graham, 169 F.3d 787 (3d Cir. Mar. 5, 1999) (finding an "aggravated felony" for immigration law purposes even though the conviction was for petty larceny, a Class A misdemeanor in New York, because a one-year term of imprisonment was imposed). This means that a Manhattan shoplifter can be classified as an aggravated felon for immigration purposes. And the New York misdemeanor of possessing marijuana or any controlled substance could be deemed an aggravated felony in the case of someone with a prior drug conviction. See United States v. Garcia-Olmedo, 112 F.3d 399, 400-401 (9th Cir. 1997); United States v. Forbes, 16 F.3d 1294, 1301 (1st Cir. 1994). Given the low threshold and the prospect of permanent banishment without judicial review, criminal lawyers have added reason to become expert in the immigration laws before negotiating a guilty plea for a noncitizen client.

*Stanley Mailman and Stephen Yale-Loehr are co-authors of Immigration Law and Procedure, published by Matthew Bender and Company, Inc. Mr. Mailman is counsel to Satterlee Stephens Burke & Burke in New York City. Mr. Yale-Loehr is of counsel at True, Walsh & Miller in Ithaca, New York, and teaches immigration law at Cornell Law School.

This article originally appeared in the October 25, 1999 issue of the New York Law Journal.