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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

New Deportation Ground: Federal Conviction Of Failure To Register As A Sex Offender

by Norton Tooby and Joseph Justin Rollin

Effective July 27, 2006, Congress passed a law which adds a new deportation ground to the INA making deportable '[a]ny alien who is convicted under [18 U.S.C. 2250] . . . .' [1] The law also renumbers former INA 237(a)(2)(A)(v) (pardons) as (vi). This new law also precludes United States citizens or lawful permanent residents who have been convicted of a specific list of offenses committed against minors from petitioning to obtain lawful permanent resident status for their family members.[2] While a federal conviction of violating 18 U.S.C. 2250 triggers deportation and disqualification from eligibility for cancellation of removal for non-lawful permanent residents, it does not appear to trigger any other major adverse immigration consequences:

  1. It is not a ground of inadmissibility, because it is not listed in INA 212(a)(2) and does not constitute a crime involving moral turpitude.
  2. It is not an aggravated felony, since it is not listed as such.[3]
  3. Therefore, this conviction does not disqualify a Lawful Permanent Resident from eligibility for cancellation of removal. Moreover, this conviction does not stop the clock for cancellation of removal. [4]
  4. It does not trigger mandatory detention.[5]
  5. A lawful permanent resident with this conviction is not 'seeking admission' when returning to the United States. [6]
  6. This conviction does not create a bar to showing Good Moral Character. [7]
  7. It has no effect on eligibility for political asylum. [8]
  8. It does not disqualify a person from eligibility for voluntary departure, either prior to the issuance of a removal order, [9] or after issuance of the order. [10]

This conviction therefore does not trigger any of the listed adverse immigration consequences except for deportation and disqualification from eligibility for cancellation of removal for non-lawful permanent residents.

The federal criminal offense conviction of which constitutes this new ground of deportation was recently enacted and codified in 18 U.S.C. 2250. It requires persons who have been convicted in any jurisdiction of any of a large number of specific sex offenses to register in the jurisdictions of their conviction, incarceration, residence, or school within three business days after sentence or prior to release from custody. Any noncitizens who violate this new registration requirement may be convicted in federal court, and, once convicted, are deportable and disqualified from cancellation for non-LPRs. It is therefore very important to educate the immigration and criminal defense bars immediately on this situation, so as to prevent these deportable convictions by ensuring that our clients comply with this new requirement.

A more detailed treatment of this new ground of deportation may be found at www.CriminalAndImmigrationLaw.com. Because a noncitizen must first have been convicted of a listed 'sex offense,' and then have failed to register, and then have been convicted under federal law of failure to register, few noncitizens will be subjected to this ground of deportation. Moreover, they will suffer the immigration consequences of their prior conviction for a 'sex offense,' regardless of this new deportation ground. Finally, this conviction triggers only deportation and disqualification from cancellation of removal for non-LPRs, while leaving open the possibility of all sorts of other forms of relief in immigration court. Once again, this legislation appears to be little more than a public relations stunt, insofar as the great majority of noncitizens is concerned. Nonetheless, it provides three important ways the government can attack noncitizens convicted of sex offenses, and in effect nationalizes the machinery of sex offender registration, and affected clients should be warned of the importance of complying with this new legislation.


Footnotes

1 - INA 237(a)(2)(A)(v), added by Adam Walsh Child Protection and Safety Act of 2006, HR 4472, PL 109-248, 401 (July 27, 2006).

2 - See Adam Walsh Child Protection and Safety Act of 2006, HR 4472, PL 109-248, 402 (July 27, 2006).

3 - INA 101(a)(43).

4 - INA 240A(d)(1)(B)(a noncitizen with a conviction for violating 18 U.S.C. 2250 has not 'committed an offense referred to in section 212(a)(2) . . . .').

5 - INA 236(c)(1).

6 - INA 101(a)(13)(C)(v)(a noncitizen with a conviction of violating 18 U.S.C. 2250 has not 'committed an offense referred to in section 212(a)(2) . . . .').

7 - INA 101(f)(3).

8 - INA 208(b)(2)(B)(i), 8 U.S.C. 1158(b)(2)(B)(i).

9 - INA 240B(a)(1), 8 U.S.C. 1229c(a)(1).

10 - INA 237(a)(4), 8 U.S.C. 1227(a)(4).

Copyright (c) 2006 by Norton Tooby. All rights reserved.


About The Author

Norton Tooby practices in Oakland, California, and received his B.A. from Harvard College in 1967, and his J.D. from Stanford Law School in 1970, where he served as President of the Stanford Law Review during 1969-1970. He specializes in consulting concerning the immigration consequences of criminal cases, and in obtaining post-conviction relief for immigrants, and publishes practice manuals for immigration and criminal lawyers, such as CRIMINAL DEFENSE OF IMMIGRANTS (2003) and POST-CONVICTION RELIEF FOR IMMIGRANTS (2004). This article was first published as a Newsletter on www.CriminalAndImmigrationLaw.com, which is maintained by the Law Offices of Norton Tooby.

Joseph Justin Rollin B.A., University of Washington, 1997, J.D., University of Washington School of Law, 2001, worked for two years as an Attorney Advisor for the Executive Office of Immigration Review before joining the Law Offices of Norton Tooty as an Associate Attorney in 2003. He has since co-authored CRIMES OF MORAL TURPITUDE (2d ed. 2005), AGGRAVATED FELONIES (3d ed. 2006), and SAFE HAVENS: HOW TO IDENTIFY AND CONSTRUCT NON-DEPORTABLE CONVICTIONS (2005) with Mr. Tooby.

For more information about Norton Tooby's Practice Manuals and CD's, see here. For information about upcoming seminars, see here.


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

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