The Difference a Day Makes: How Courts Circumvent Federal Immigration Law at Sentencing

• Publication year: 2007

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 31, No. 1FALL 2007

The Difference a Day Makes: How Courts Circumvent Federal Immigration Law at Sentencing

David S. Keenan(fn*)

I. Introduction

Judges in criminal proceedings impose sentences every day, mindful of the often-lasting effects their actions will have on the parties before them and on law and public policy beyond the courtroom. In particular, criminal sentences have a tendency to wreak havoc in the lives of defendants and their families long after time is served in jail.(fn1) Perhaps nowhere are the issues surrounding the consequences of a criminal conviction more severe and controversial than in the complex intersection of state sentencing actions and federal deportation law, where the former can either trigger or, as this Comment discusses, stifle operation of the latter. As the following story illustrates, the possibility that a criminal conviction may result in the harsh consequence of deportation can factor heavily in a judge's exercise of discretion at sentencing. But where such sentences run afoul of federal immigration law under the Constitution,(fn2) neither precedent nor policy will sustain them.

On June 27, 2004, three men assaulted and stabbed twenty-three-year-old Micah Painter with a broken bottle after he left a tavern in Seattle's Capitol Hill neighborhood.(fn3) While there were varying accounts of the exact words used by Painter's assailants, all accounts agreed that the men aimed their rage at his sexual orientation. One account alleged that an attacker yelled, "You're going to die, faggot!"(fn4) Such a brutal attack, in the heart of Seattle's most prominent gay and lesbian neighborhood during Gay Pride weekend, sparked considerable media attention(fn5) as police searched for the suspects.

It was not until nearly three weeks later that police arrested three suspects: David Kravchenko, Yevgeniy Savchak, and Vadim Samusenko.(fn6) Kravchenko and Savchak were eventually convicted of Assault in the Fourth Degree(fn7) and Malicious Harassment,(fn8) while Samusenko was convicted of Assault in the Second Degree.(fn9) Thus, this is not a tale of injustice in the traditional sense. The men who savagely attacked Micah Painter were ordered jailed for nearly a year, with Savchak and Kravchenko each receiving sentences of 364 days.(fn10)

As Russian nationals,(fn11) however, the consequences for these two men could have been much more severe.(fn12) Under federal immigration law, both men could have been classified as "aggravated felons"(fn13) for immigration purposes, which can result in the initiation of deportation proceedings.(fn14) In the cases of Savchak and Kravchenko, being convicted of a "crime of violence"(fn15) would render them aggravated felons, so long as they were sentenced to at least one year in jail.(fn16) But the defendants did not receive sentences of at least one year; instead, they escaped that last, crucial prong by one day.(fn17) Attorneys for both men were aware of the difference one day could make, and the judge imposed sentence accordingly, expressing his hope that the men could avoid deportation.(fn18)

Efforts in criminal courts to avoid deportation as a result of convictions are prevalent throughout the United States.(fn19) Although defendants in Washington have a statutory right to be advised of the potential immigration consequences of a guilty plea,(fn20) there is no statutory or constitutional requirement that a judge take immigration consequences into consideration in imposing sentence.(fn21) Nonetheless, as was the case in the assault on Micah Painter, judges can and do make what are effectively policy judgments when sentencing defendants, with an eye toward helping them avoid deportation.

Division Three of the Washington Court of Appeals recently considered such a situation in the case of State v. Quintero Morelos, where an alien(fn22) defendant was initially sentenced to 365 days in jail for Assault in the Fourth Degree, Domestic Violence.(fn23) Upon learning that this sentence could make him deportable as an aggravated felon, the defendant moved the court to reduce the sentence by one day.(fn24) At the second sentencing, the judge stated, "[I]f I had known that [one day] would make a difference, I would have imposed 364 days ... ."(fn25) On appeal, the State argued that the trial court's ruling violated the Supremacy Clause of the U.S. Constitution,(fn26) in that it interfered with the operation of federal immigration law.(fn27) In dismissing the State's argument as "without merit,"(fn28) the court reasoned that the Supremacy Clause applied to statutes, not court rulings, and that the trial judge was simply "acknowledging ... [that] federal law has the potential to influence the actual punishment visited upon a criminal defendant...."(fn29)

The trial court's ruling in Quintero Morelos, as affirmed on appeal, violates the Supremacy Clause under multiple tests(fn30) and conflicts with related case law concerning deportation orders at sentencing. First, the court's action amounted to an impermissible regulation of federal deportation matters where Congress has implicitly prohibited state regulation through its occupation of the entire field respecting deportation law. Second, the court's action directly conflicted with federal law, to the extent that it rendered an otherwise deportable defendant non-deportable under a particular statute. Third, because the Quintero Morelos court could not have ordered the defendant's deportation, it was equally without power to effectively prevent his deportation.

Part II of this Comment briefly discusses the history of federal immigration regulation and recent efforts by Congress to ensure that aliens convicted of serious crimes, such as Micah Painter's assailants, are amenable to deportation. Part II also lays out the framework of the immigration legal system, in which noncitizen defendants can avail themselves of due process in a setting intended to properly address the serious questions surrounding potential deportation. Part III discusses Quintero Morelos and the problems with the court's analysis, subsequently arguing that the case's holding not only conflicts with traditional Supremacy Clause principles but also fails to follow related precedent concerning deportation orders by state sentencing judges. Having discussed the legal arguments against Quintero Morelos, Part IV discusses two public policy arguments that militate against both state and federal courts intruding into the complex issues surrounding deportation. Finally, Part V concludes that defendants such as Quintero Morelos and the individuals who brutally beat Micah Painter should be sentenced as any U.S. citizen would, without regard to what immigration consequences might follow.

II. Federal Power Over Immigration and Concern with Criminal Aliens

The development of immigration law through the Constitution and the entire body of subsequent jurisprudence reflects that immigration matters are exclusively under the auspices of the federal government, which has developed a system specifically structured to address the possible deportation of aliens. This Part first outlines the constitutional and judicial underpinnings of federal control over immigration law. The Part continues with a discussion of the public safety concerns that have prompted Congress to focus on deporting criminals. Finally, the Part concludes with an overview of the vast immigration legal system that affords parties due process in a setting specifically designed to handle the complex workings of immigration law.

A. The Federal Government Controls Immigration

That federal law is the supreme law of the land is not only promulgated in the U.S. Constitution(fn31) but also accepted by the nation's highest court(fn32) and enshrined in the Washington State Constitution.(fn33) The Federal Constitution provides that Congress has the power to establish a uniform rule of naturalization(fn34)-that is, who may attain United States citizenship and under what circumstances-a power that has also been recognized by Washington courts.(fn35) The federal government also has broad constitutional powers in determining which aliens shall be admitted to the United States, how long they may remain, and how their conduct may be regulated.(fn36) The states are granted no such powers and therefore cannot alter the conditions Congress imposes upon the admission, residence, and naturalization of aliens.(fn37)

The U.S. Supreme Court has spoken powerfully in several cases to federal control of immigration. The Court has remarked that "over no conceivable subject is the legislative power of Congress more complete" than it is over the admission of aliens.(fn38) In striking down a state alien registration statute in light of pre-existing federal regulation in the same area, the Court explained:That the supremacy of the national power . . . over immigration, naturalization and deportation, is made clear by the Constitution was pointed out by authors of The Federalist in 1787, and has since been given continuous recognition by this Court ... . When the national government by treaty or statute has established rules and regulations touching the rights, privileges, obligations or burdens of aliens as such, the treaty or statute is the supreme law of the land. No state can add to or take from the force and effect of...