Of Convictions and Removal: the Impact of New Immigration Law on Criminal Aliens
| Publication year | 1997 |
| Pages | 18 |
Hakeem Ishola
[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb.[1]
I. INTRODUCTION
Two laws signed by President Clinton in 1996 have wrought significant changes in immigration law, these being the Anti-Terrorism and Effective Death Penalty Act ("AEDPA")[2] and Illegal Immigration Reform and Immigrant Responsibility Act ("IIRAIRA").[3] Both acts, hereinafter referred to as the new law, acutely give new meaning to "double jeopardy," which in its rawest translation forbids the government from kicking folks while they are down. With few exceptions, the most draconian provisions of the new law took effect April 1, 1997.[4]
The new law makes incremental changes in certain areas of the Immigration and Nationality Act of 1952 ("INA" or "the Act"), but these changes nonetheless posit harsh consequences for aliens, particularly criminal aliens ("CAs"). Elsewhere, the new law redefines previously well-known immigration concepts, creates new immigration-related crimes, and increases the penalty for new and old immigration related crimes.
Consequently, in order to effectively represent CAs, criminal defense and immigration lawyers must sharpen up on the new law by familiarizing themselves with the definitional section of the Act, INA § 101, codified at 8 U.S.C. § 1101, and other sections dealing with CAs.
II. IMMIGRATION CONCEPTS AND NEW DEFINITIONS
A. Who is from Mars?
It is critical that criminal defense lawyers know the immigration status of their clients. A criminal conviction (even an arrest under certain circumstances) bodes dire immigration consequences for an alien criminal defendant, such as deportation[5] or exclusion.[6] See Jordan v. DeGeorge, 341 U.S. 223, 230 (1951) (deportation is a sentence to life in exile ... a penalty). Therefore, a prerequisite for representing CAs in state and federal courts is a defense lawyer's basic understanding of immigration law, as the consequences of a conviction could vary dramatically depending on the alien's immigration status in the United States.[7]
How does a defense lawyer recognize that the lawyer is representing a non-citizen? The way the client looks or speaks is not determinative of the client's citizenship or nationality.[8] Defense lawyers must affirmatively ask their client whether the client is an American citizen or national.[9] If the answer is negative, then the client is most likely an alien in the United States.
B. Separating Space Aliens from those from Mars
United States immigration law defines an alien as an individual who is not a national or citizen of the United States.[10] Prior to the advent of the new law, immigration law formally recognized two classes of aliens: immigrant and non-immigrant aliens. An immigrant is an alien who is in the United States to stay permanently.[11] Generally, a "green card" or Form 1-551 is evidence of lawful permanent residence ("LPR") in the United States.[12] Depending on how permanent residence is obtained, an alien becomes eligible for naturalization or American citizenship three to five years after continuous lawful residence.[13]
A non-immigrant alien, conversely, is in the United States temporarily, such as a tourist or business visitor, diplomat, student, etc.[14]A non-immigrant normally is issued a "visa" in his or her "passport" to indicate lawful temporary presence in the United States.[15]
The new law acknowledges a third (and possibly a fourth) category of aliens that have always been a part of the system, albeit unofficially. These are aliens, primarily non-immigrants, who have exceeded the period authorized by the Service for their stay ("overstays"), and those who entered the United States surreptitiously at the border, without Service inspection ("EWIs").[16]Prior to the new law, overstays and EWIs were eligible for a number of immigration benefits (or "reliefs"), such as voluntary departure,[17] suspension of deportation,[18] adjustment of status,[19] and asylum.[20] The formal recognition of this new category undoubtedly was in response to the argument that lack of sanctions encourages overstays and EWIs to blatantly violate United States immigration laws.[21]
Overstays are now prohibited from becoming an LPR if the overstay was "employed while the alien was an unauthorized alien as defined in section 274A(h)(3), or . . . has otherwise violated the terms of a non-immigrant visa."[22] To shore up sanctions against EWIs, the new law redefined the old concept of "entry."[23] "Entry" meant that an alien who was found in the United States, even if present illegally, was presumed to have legally "entered" the United States. Having so defined "entry," such alien was therefore subject to deportation proceedings[24] and attendant reliefs therefrom,[25] rather than the more circumscribed exclusion proceedings.[26]
Now, rather than "entry," "admissibility," defined as "lawful entry of [an] alien into the United States after inspection and authorization by an immigration officer,"[27] determines the conduit by which the Service effectuates the removal of an alien from the United States.[28] Because most EWIs were not inspected or authorized, there is no question that the Service will subject EWIs to "exclusion" proceedings rather than "deportation."[29]
More significantly, the new law has merged the old separate deportation and exclusion proceedings into one streamlined "removal proceeding," defining "removable" as deportable or inadmissible.[30] Thus, an alien applying at the border for admission into the United States will be inspected, and if found inadmissible under INA § 212, will be placed in a § 240 proceeding where the alien must show beyond a doubt that s/he is admissible (i.e., not excludable).[31]An alien found in the United States will similarly be placed in a § 240 removal proceeding where the alien must show by clear and convincing evidence that s/he was "admitted." Upon showing this, the burden shifts to the Service to demonstrate by clear and convincing evidence that the alien is removable (deportable).[32]
III. DETENTION AND RELEASE OF CRIMINAL ALIENS
A. Capturing the Alien
The new law authorizes the Attorney General to arrest and detain any alien until a decision is made on whether the alien is to be removed from the United States.[33] As to CAs, detention is mandatory[34] for those who are:
1. inadmissible on criminal grounds;[35]
2. removable for having committed two crimes of moral turpitude,[36] aggravated felony,[37] controlled substance violation, firearms offenses, etc;[38]
3. removable for conviction of a single crime of moral turpitude for which the alien was sentenced to at least one year of imprisonment;[39] and
4. removable for having been convicted of terrorist activity.[40]
B. No Room in the Spacecraft
Criminal aliens in this category may be released by the Attorney General only if the alien or a close family member is co-operating with a major criminal investigation and the alien will not pose a risk to the safety of other persons and property.[41]It remains to be seen whether Congress could constitutionally bar long-term permanent resident CAs from being released on bail pending removal.[42]
Given the large numbers of aliens subject to mandatory detention under the new law, Congress provides Transition Rules Regarding Custody ("TRRC"), authorizing the Attorney General to release some aliens subject to mandatory detention if detention space is unavailable.[43] On October 9, 1996, Service Commissioner Doris Meissner certified to Congress that there was insufficient detention space and thus invoked the TRRC until October 10, 1997.[44]
Under the TRRC, the Service is releasing LPRs convicted of turpitudinous crimes within five years of entry, so long as the alien can demonstrate s/he is not a threat to the community. The Service is also releasing LPR aggravated felons who demonstrate they are not a flight or security risk.[45] Even if not lawfully admitted for residence in the United States, aliens whose countries of origin will not accept them if removed are being released by the Service.[46]
C. Releasing Aliens from Mars
Oftentimes, the Service files a "detainer" with a criminal justice agency, either state or federal prison or jail. The detainer notifies the agency that the Service has an interest in a particular criminal alien amenable to exclusion or deportation.[47] Accordingly, upon release of the alien from the underlying criminal charge, the criminal justice agency can hold the alien for forty-eight hours to allow the Service to obtain custody. See 8 C.F.R. § 242.2(a)(4).[48]
Further, pursuant to the Bail Reform Act,[49] a federal Magistrate Judge can detain for up to ten days any alien who is not an LPR and is being criminally charged.[50] Once in Service custody, the alien is entitled to a bond and thereafter to a bond review hearing before an IJ.[51]
IV. RELIEVING THE BURDEN OF CRIMINAL CONVICTION ON ALIENS
A. Does "Conviction" mean "Conviction"?
Criminal conviction, among other things, generally triggers Service initiation of immigration proceedings against CAs.[52] Section 322 of IIRAIRA adds a new paragraph (48) to the Act's definitional section. INA § 101(a)(48) now defines "conviction" as, 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 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.[53]
Section 101(a)(48) clearly modifies (and "overrules") the definition of " conviction"...
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