THE PROBLEM OF FOREIGN CONVICTIONS IN U.S. IMMIGRATION LAW.

• Author: Cebula, Geoff

INTRODUCTION

(THE UNCERTAIN IMPLICATIONS OF A BLUSHING KANGAROO)

Foreign convictions can carry serious consequences for noncitizens seeking to enter or remain in the United States. Under various provisions of the Immigration and Nationality Act (INA), (1) certain types of criminal convictions render a noncitizen inadmissible, (2) deportable, (3) or ineligible for asylum. (4) A noncitizen must disclose all prior convictions when seeking to enter the country or adjust immigration status, (5) and under some circumstances a postadmission conviction may suffice to render even a lawful permanent resident removable. (6) Given the severity of these consequences, it matters what qualifies as a conviction under the statute.

On the surface, the answer to this question may appear simple. At a first glance, the definition of "conviction" in the INA would appear to encompass just about any "formal judgment of guilt of the [noncitizen] entered by a court," (7) and immigration courts generally do not look at the judicial process underlying the conviction. (8) Nothing in the INA limits the consequences of a criminal conviction to judgments entered by a domestic court, and it is well established by precedent that a noncitizen may face immigration hurdles for convictions obtained in her country of origin. (9) Yet it would seem perverse for the United States to credit a conviction by a foreign tribunal that fails to provide even minimal safeguards for procedural fairness (e.g., a "show trial" with a predetermined outcome or a conviction in absentia with no meaningful right to a defense). Are U.S. courts and administrative agencies bound to enforce immigration consequences on the basis of a foreign conviction resulting from a process that may amount to, in the words of Judge Posner, "a kangaroo court to make kangaroos blush"? (10)

Those who recoil at this prospect will find some comfort in the scant judicial opinions to pose this question directly. As Judge Posner's marsupial metaphor suggests, the Seventh Circuit has held that U.S. immigration courts cannot base removal solely on a foreign conviction in a proceeding so fundamentally unfair as to constitute "a travesty--a parody--of justice." (11) The Board of Immigration Appeals (BIA) has similarly endorsed the view that foreign convictions "can be discounted" in cases where "the foreign jurisdiction's legal system is shown to be fundamentally inconsistent with an American understanding of fairness." (12) Yet judging by published opinions, it is rare for U.S. authorities to find a foreign proceeding so procedurally defective as to be effectively void. (13) More fundamentally, it is not immediately obvious under what legal authority an immigration court could find most types of procedurally defective foreign convictions invalid for immigration purposes or what criteria ought to be used in making such a determination. (14) Despite the commonsense appeal of such a rule, there is simply no express provision of the INA that requires a foreign conviction to attain a minimum of fairness in order to serve as a predicate for immigration consequences.

This Note attempts to fill this gap by surveying how U.S. courts and the BIA have addressed the fairness of foreign proceedings in related contexts. Part I argues that the definition of "conviction" in the INA implicitly leaves room for courts to inquire into the procedural fairness underlying a foreign conviction. Part II surveys the traditional standards for evaluating the sufficiency of foreign convictions in the contexts of extradition and international comity, two areas where U.S. courts have had to decide when to honor foreign judgments for centuries. These longstanding criteria formed the background against which the INA definition was adopted and may provide guidance on how to apply this definition. Accordingly, Part III derives from this analysis suggestions for how the Department of State might better address these concerns in its visa issuance decisions, as well as for how the immigration courts in the Department of Justice might treat foreign convictions differently. Lastly, Part IV considers the practical questions of implementation raised by these suggestions.

1. Is A FOREIGN CONVICLLION ALWAYS A "CONVICTION"?

   As its language controls admission and removal decisions, the INA is the necessary starting point for understanding how immigration courts and consular posts ought to treat foreign convictions. The currently controlling definition of "conviction" entered the Act in 1996 as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). It reads in full:

   The term "conviction" means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where-- (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed. (15) The Foreign Affairs Manual (FAM), issued by the Department of State, cites the same INA definition for the purposes of judging a noncitizen's admissibility when deciding on a visa petition. (16) Under this definition, the verdict of a foreign "kangaroo court" would ostensibly be binding as long as it rendered its judgment with sufficient formality and ordered some type of punishment, and in most cases neither immigration authorities nor reviewing courts will look beyond the fact of a conviction. (17) Nevertheless, this definition does not speak to the treatment of foreign convictions per se, and there are several reasons for thinking that the judgment of a foreign tribunal might be treated differently from a domestic conviction.

   The first is the legislative history of IIRIRA. Congress expressly introduced a statutory definition of "conviction" in IIRIRA as a response to the definition offered by the BIA in the 1988 decision Ozkok. (18) The IIRIRA definition of "conviction" quoted above adopts the precise language of the Ozkok definition but excises the following key caveat: "[A] judgment or adjudication of guilt may be entered if the person violates the terms of his probation or fails to comply with the requirements of the court's order, without availability of further proceedings regarding the person's guilt or innocence of the original charge." (19) In other words, the Ozkok definition contained an exception for certain types of court orders and probation agreements that deferred any decision on the merits of the case. A final adjudication in this category would only trigger the "conviction" provisions of the INA if the noncitizen also failed to comply with probation or a court order. (20) Congress changed this language in IIRIRA in order to address the resulting problem that certain noncitizens "who have clearly been guilty of criminal behavior and whom Congress intended to be considered 'convicted' have escaped the immigration consequences normally attendant upon a conviction." (21) In so doing, Congress was responding to the practice of certain states, where "adjudication may be 'deferred' upon a finding or confession of guilt, and a final judgment of guilt may not be imposed if the alien violates probation until there is an additional proceeding regarding the alien's guilt or innocence." (22) In other words, Congress intended to broaden the scope of "conviction" to include noncitizens who have clearly been guilty of criminal behavior but might evade deportation due to domestic procedures that deferred final adjudication. There is no indication in the legislative history that Congress meant to tie courts' or officials' hands in interrogating foreign convictions--especially in the case of proceedings so fundamentally unfair that the fact of conviction cannot reliably establish guilt of criminal behavior.

   Second, there is precedent for treating foreign convictions differently from U.S. domestic convictions for the purposes of statutory interpretation. In Small v. United States, the Supreme Court considered whether foreign convictions could trigger 18 U.S.C. [section] 922(g) (1), which makes it "unlawful for any person... who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year... to... possess... any firearm." (23) The Court considered "whether the statutory reference 'convicted in any court' includes a conviction entered in a foreign court," (24) and held "that the phrase 'convicted in any court' refers only to domestic courts, not to foreign courts." (25) In reaching this conclusion, it relied, in part, on "the legal presumption that Congress ordinarily intends its statutes to have domestic, not extraterritorial, application." (26) Moreover, the Court observed that "foreign convictions differ from domestic convictions in important ways." (27) Most relevantly, the Court reasoned that the class of all foreign convictions "would include a conviction from a legal system that is inconsistent with an American understanding of fairness." (28) This consideration bolstered the Court's "ordinary assumption about the reach of domestically oriented statutes" in cases "where Congress likely did not consider the matter and where other indicia of intent are in approximate balance." (29) Of course, there is no similar basis for arguing that Congress did not intend to include foreign convictions within the scope of the INA--after all, the admissibility restrictions are intended to apply to all noncitizens, including those who have never set foot in the United States. (30) Nevertheless, the reasoning of Small supports the conclusion that Congress wrote the conviction requirements of 8 U.S.C. [section] 1101 (a) (48) (A) with domestic concerns in mind, without considering the specific problems that may arise from a foreign conviction (including...