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Criminal Law, Eternal Banishment, And Mandatory Detention

by Brian Conry, Esq.

Dear Immigrant-Defendant:
Careful! A criminal conviction for even a misdemeanor crime (the courts have held that some misdemeanors can be considered an "aggravated felony") could result in permanent deportation from the United States. Before pleading guilty or no contest; make sure you completely know the immigration consequences of the conviction. Don't accept any plea negotiation without fully understanding the immigration consequences of the conviction.

The United States Supreme Court on April 29, 2003, in Denmore v. Kim, approved of the mandatory detention of all 'aggravated felons.' In other words, the legal permanent resident doesn't get out of custody until he/she is deported by the INS. There is no quick remedy for this if the immigration judge finds that the conviction is for an 'aggravated felony' and/or, i.e., the only remedy is setting aside the conviction (post-conviction relief) but the immigrant will have to stay in custody during the time that that litigation to set aside the conviction takes place. If the immigrant wins his post-conviction relief case then the immigrant defendant must face the criminal charges anew and be acquitted at trial and/or have a non-deportable result at trial or by plea in order to avoid any future immigration proceedings.

The conviction against the defendant (at least in most of the U.S.)- if he litigates the case- is not 'final' if the case is taken up on appeal, unless there is an adverse decision at the appellate court level. In other words, the immigrant defendant can remain in the United States during the period that the criminal case, if it results in a conviction, is appealed from. If the conviction is reversed, there would be no immigration consequence for that conviction.

All too many times, immigrants have been deported forever because they have pled guilty to a criminal charge without understanding the tragic, eternal banishment that may result from that conviction. Then, when returning to the USA to be with their families, they are placed into federal prison as "aggravated felons."

This is a problem of national significance. Figures on the Immigration and Customs Enforcement's website state that the government deported 148,619 immigrants for criminal and non-criminal reasons in fiscal year 2002. The share of criminal removals has risen substantially from the year before. Of those deported in fiscal year 2002, nearly 48 percent (71,337) were deported for criminal reasons. These numbers will likely increase as the INS/ICE funding increases and immigrants continue to be convicted for "aggravated felonies" that require the banishment of long-term permanent residents for minor criminal conduct.

If you have pled guilty to a crime which requires or permits your deportation, it's possible that the conviction can be vacated, but you should act quickly. In Oregon, if you wait too long, it is very likely that the conviction can never be vacated even if it was based upon a plea agreement without the immigrant-defendant understanding the immigration consequences of the criminal conviction. In other states, the advice is to always move as quickly as possible to eliminate aggravated felony convictions, although other states may be more forgiving than Oregon when handling a request to set aside a conviction that is not filed until some years after the conviction is suffered.

You need to call an immigration attorney for a consultation if you have past criminal convictions or pending criminal charges and/or any business to conduct with the INS [1]; also, if you have had any type of contact with the law, and/or intend to leave the United States (i.e. to see if you will be allowed to enter the United States by the INS.)

Remarkably, "aggravated felony" convictions[2] automatically, by operation of law alone, require the deportation and eternal banishment of the "alien." Legally, a human being who has been a legal permanent resident for 25 years or longer is still an "alien" under the immigration laws. "Aggravated felony" is a term of art defined under the INA (Immigration Nationality Act).
The immigration court's "mandatory minimum" sentence/punishment of deportation from which immigration judges cannot deviate is prescribed in INA (Immigration and Nationality Act) 101(a) 43 et. seq.

These "aggravated felony crimes" include, but are not limited to:

  1. Murder;
  2. Drug trafficking (i.e. a State of Oregon level four or level six DCS (Delivery of a Controlled Substance)); Further, the Board of Immigration Appeals has now decided that a Felony PCS (Felony Possession of a Controlled Substance) is a drug-trafficking crime requiring deportation. Matter Yanez, 23 I&N 390 (BIA 2002).
  3. A "crime of violence" (which is a term of art defined at 18 USC 16(a) and cross-referenced in the INA under Section 101(a)(43)(F)) in which a sentence of at least one year is imposed; Misdemeanor assault four in which a one-year suspended or executed sentence is imposed is an aggravated felony under this definition; see Matter of Martin Interim Decision #3481 (BIA 2002), decided, September 26, 2002, holding that Misdemeanor Third Degree Assault is an "aggravated felony." This was a Domestic Violence Criminal Charge and conviction.
  4. Trafficking in weapons or destructive devices;
  5. Money laundering in an amount over $10,000; (ten thousand dollars)
  6. Rape;
  7. Sexual abuse of a minor; (sexual contact is not required with the minor to be an aggravated felony Matter of Rodriguez-Rodriguez, Int. Dec. 3411, decided by the Board of Immigration Appeals on September 16, 1999, held conviction for indecency with a minor is an "aggravated felony."); Also see Matter of Small Interim Decision #3476, (2002) holding that misdemeanor sexual abuse of a minor is as an "aggravated felony" requiring the deportation of the immigrant-defendant.
  8. Theft (including receipt of stolen property) or burglary in which the term of imprisonment is at least one year. But a "Car Burglary," as defined by California law, is not considered a burglary under this statute. And sentencing enhancements, requiring a sentence above one year on a repeat property offender in Oregon is probably not an "aggravated felony" under Ninth Circuit precedent.
  9. Racketeering;
  10. Failure to appear convictions on a felony charge for which a sentence of two or more years imprisonment may be imposed;
  11. Promoting, compelling prostitution;
  12. Fraud and deceit crimes, including tax evasion in which the loss to the victim or IRS exceeds $10,000;
  13. Alien smuggling (with exceptions);
  14. Prior deportation for an aggravated felony;
  15. False making or altering a passport (with exceptions);
  16. Failure to appear for service of a criminal sentence if the underlying offense is punishable by a term of two years or more;
  17. 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;
  18. An offense relating to commercial bribery, counterfeiting, forgery, or trafficking in vehicles the identification numbers or which have been altered for which the term of imprisonment is at least one year.

    Possession of a weapon following a domestic violence conviction is a federal crime. Sometimes people vote, not knowing that they are in violation of immigration laws by so doing but that is no defense. Please vote only after you become a US citizen. Green card holders who vote are deportable.

    Caveat: Transmission of this information is not intended to create any attorney-client relationship. It is general information only, and one's specific circumstance's as an immigrant defendant require direct consultation with an immigration attorney to ascertain their legal status.

    The scope of this article addresses the effect of criminal convictions suffered by the immigrant-defendant after April 1, 1997. Prior to April 1, 1997, different laws applied. Therefore, immigrants with "aggravated felony" convictions as that term is defined by the April 1, 1997 law, except for those convictions prior to April 1, 1997, are probably eligible for a waiver hearing on their deportation case if they pled guilty. See INS v. St. Cyr, 533 US 289, 121 S. Ct. 2271 (2001), INA 212(c)

    Also, if you have a fear of being persecuted in your home country, asylum, withholding of removal, and Convention Against Torture laws apply to your circumstance. These potential avenues to avoid deportation are not within the scope of this article. Persecution occurs when there has been a failure of state protection of fundamental human rights and interests.

    Other convictions can also result in deportation proceedings for which no waiver is available. You should consult with an immigration attorney if you have been involved with the criminal courts now or in the past to learn if you are eligible for a waiver of deportation and/or your likelihood of being granted such a waiver by the immigration court. See an immigration attorney if you have any of the above mentioned problems or potential problems. The law constantly changes. This article is intended as a brief overview of current law and would need further refinement even at this time depending upon the particular circumstances of each individual.

    Finally, please always bear in mind, citizens have more rights, i.e. citizens are not deportable. If you want to file for citizenship, see an immigration attorney to be sure that the processing of this application does not cause you to be placed into deportation proceedings. For instance, some arrests for drug cases even without a conviction may result in deportation proceedings. The broader recommendation is to always see an immigration attorney when you have any business with the immigration court or immigration service because the law is complex and the pitfalls of a poorly thought out immigration application for any benefit can be severe.

    [1] The INS is now known as the USCIS or United States Citizenship and Immigration Services.

    [2] Convictions for aggravated felonies prior to 4-24-96 and some of these convictions prior to 4-1-97 do not prohibit an immigrant defendant from applying for a waiver of deportation. The "aggravated felony" laws got much worse after the 1996 and 1997 laws were enacted. If your conviction was at that time, you certainly should see an immigration attorney to review the consequences of that conviction.

    About The Author

    Brian Conry, Esq. is a criminal defense/immigration attorney. His address is 534 SW Third Ave., Suite 711, in Portland, OR. He can be reached by phone at (503) 274-4430. Mr. Conry concentrates his practice of law to some extent in the area of the immigration consequences of criminal convictions. See Mr. Conry's website at for more information.

    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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