Avoid Banishment: What Every Immigration Criminal Defense Counsel Should Know
[Note: The scope of this article addresses the effect of criminal convictions suffered by the immigrant defendant after April 1, 1997. Due to space limitations, this article does not address inadmissibility into the United States, criminal convictions and immigration consequences for the short-term permanent resident, or for the enter-without-inspection (e.w.i.) non-permanent resident. Immigrants with "aggravated felony" convictions prior to April 1, 1997 may be, and likely are, 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).]
Please assume that your client is a Mexican national who is also a long-term permanent resident of the United States, as are many of the immigrants in Oregon. Please also assume that this immigrant would not have a claim based on persecution, asylum, withholding of removal, or Convention Against Torture under which to seek relief from removal if he or she was deported to Mexico. This is certainly the case with almost all Mexican nationals. These potential additional avenues to avoid deportation are not within the scope of this article.
The scope of this article addresses the banishment "plea factor"  facing this immigrant defendant in a criminal prosecution, and discusses the general immigration law basics that criminal defense counsel is required to know in order to protect this client from surprise, eternal banishment. To tell this immigrant that he "may" be deported, when reciting the plea petition with this defendant, when he "must" be deported as a required matter of immigration law, is ineffective assistance of counsel. Vega-Gonzalez v. State of Oregon, 191 Or.App. 587 (2004) , Long v. State, 130 Or.App. 198 (1994), (Once criminal defense attorney begins to advise on "collateral" consequences of a conviction, he must do so fully and accurately.)
In negotiations on any criminal case, criminal defense counsel must attempt to obtain a non-deportable result, or at the very least, obtain a result where a waiver proceeding would be available under INA § 240A(a). INA §240A(a) provides for cancellation of removal for the alien when three eligibility requirements are met: 1. he or she has been lawfully admitted to the U.S. for permanent residence for not less than 5 years, 2. he or she has resided in the U.S. continuously for 7 years after having been admitted in any status, and 3. he or she has not been convicted of any aggravated felony.
INA § 240A(a), plus INA § 101(a)(43) discussed infra at page 5, is the "1+1" of eternal banishment. It's simple: Aggravated felonies listed in INA § 101(a)(43) require eternal banishment. All that criminal defense counsel needs to know to understand that, and alert the client to this very important "plea factor," is INA § 240A(a) and INA § 101(a)(43). The time has passed when criminal defense counsel could advise the immigrant to go see an immigration lawyer instead of taking on the responsibility of knowing these two simple statutes. Criminal defense counsel must enlist the support of immigration counsel, or do further research in immigration law, in order to fulfill his ethical duty to properly and fully advise the immigrant-defendant client of the immigration consequences of the conviction. See INS v. St. Cyr, 533 U.S. 289 (2001), Magano-Pizano v. INS, 200 F.3d 603 (9th Cir. 1999), Lyons v. Pearce, 298 Or 554 (1985).
It would be wise to consult with immigration counsel as to the likelihood of prevailing on any waiver proceeding for any deportable, but non-aggravated felony conviction, i.e. what needs to occur now in order to advance the potential of winning a waiver/cancellation of removal case. Immigration counsel should be available through indigent funding when it is unclear whether or not the client is facing banishment if he enters a particular plea bargain or suffers a particular sentence. If, after obtaining additional information regarding immigration consequences the immigrant may be able to reach a non-deportable result through either plea bargaining, at jury trial, or even during sentencing litigation, then the criminal defense attorney has to know this, and expert assistance is required under the Constitution. Wiggins v. Smith, 123 S.Ct. 2527 (2003). (The requirement of effective assistance of counsel applies to the sentencing stage of litigation.) Cf. Ake v. Oklahoma, 470 U.S. 68 (1985). (The Constitution requires that an indigent defendant have access to the psychiatric examination and assistance necessary to prepare an effective defense based on a defendant's mental condition where he presents information that defendant's mental state is reasonably at issue in resolving criminal charges).
An immigrant's conviction for even a misdemeanor crime often results in permanent deportation from the United States, because the courts across the United States have held that some misdemeanors can be considered an "aggravated felony" ("Aggravated felony" is a term of art defined under the Immigration Nationality Act, INA). Aggravated felony convictions automatically require, as a matter of immigration law, the deportation and eternal banishment of the "alien".  Legally, an immigrant who has been a legal permanent resident for 25 years or longer is still an "alien" under the immigration laws.
Before your client pleads guilty or no contest, make sure you know, and communicate to the client, the immigration consequences of the conviction. Don't recommend any plea negotiation without fully understanding the consequences of the conviction and learning how important it is to the immigrant/defendant to fight against eternal banishment. The "alien" client is likely to prefer fighting a difficult criminal case rather than stipulating to eternal banishment.
A conviction against the defendant is not "final" if the criminal case is taken up on appeal. In other words, the immigrant defendant can remain in the United States during the period in which the criminal case is appealed. The defendant may choose to litigate a motion to suppress in order to at least try to preserve his permanent residency within the United States. Raising a motion to suppress zealously may result in the prosecution offering a non-deportable result.
All too many times, immigrants have been permanently deported because they pled guilty to an aggravated felony criminal charge without understanding the tragic eternal banishment that results from an aggravated felony conviction. These immigrants are literally signing off on their eternal banishment when they enter into what amounts to an unknowing and involuntary plea. Then, when returning to the USA to be with their families, they are placed into federal prison as "aggravated felons." In the author's opinion, our current plea petition is obsolete, and facilitates affirmative mis-advice of immigration consequences by criminal defense counsel. In U.S. v. Cuoto, the Second Circuit recognized in dicta that "because deportation is now virtually certain for aliens convicted of aggravated felonies, the court was required under Fed.R.Crim.P. § 11(c)(1) to inform the defendant of those deportation consequences before accepting" a plea. 311 F.3d 179,181 (2nd Cir. 2002).
The United States Supreme Court approved mandatory detention of all "aggravated felons" in Denmore v. Kim, 123 S.Ct. 1708 (2003). The legal permanent resident doesn't get out of immigration custody until he is deported by the INS.
Imagine an accepted plea deal that provided for a no-jail criminal sentence, followed by mandatory detention for several months while a PCR case is litigated. This is what occurs to immigrants who receive ineffective assistance from criminal defense counsel, and who wish to then fight the aggravated felony conviction. Of course, the immigrant may also decide to take the deportation and then return to the U.S. as an "aggravated felon" and then face illegal re-entry prosecution.
Figures on the Bureau of Customs and Immigration Services website state that the government deported 148,619 immigrants for criminal and non-criminal reasons in fiscal year 2002. Of those deported in FY 2002, nearly 48 percent (71,337) were deported for criminal reasons, a substantial increase over the prior year. The approximately 70,000 criminal alien deports has remained steady from 1999 through 2002. In 2003, this number had increased to 80,355, and the figures to date show that 40,926 criminal aliens have already been deported in 2004.  These numbers will likely continue to increase as the INS/BICE 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 a client has pled guilty to a crime which requires or permits deportation, it is possible that the conviction can be vacated but counsel should act quickly. In Oregon, it appeared likely that a conviction outside of the two year statute of limitations period for post-conviction relief could never be vacated, even if the plea agreement occurred without the defendant understanding the immigration consequences of the conviction. However, the statute of limitations may now arguably be extended based on the Vega-Gonzales case. In Huynh v. State of Oregon
, Multnomah County Circuit Judge Linda Bergman denied a motion to dismiss for filing a PCR petition 20 months after the statute of limitations had expired. In her opinion, she stated, "Clearly, the immigration consequences of guilty pleas is largely an unknown to most lawyers and judges in state courts." The exception under ORS 138.510(2) for the statute of limitations in this case was allowed because the petitioner could not have raised a timely petition.
The immigration court's "mandatory minimum" sentence-punishment of deportation from which immigration judges cannot deviate-is prescribed in the INA, 101(a) 43 et. seq. These "aggravated felony crimes" are the subject of voluminous caselaw decisions throughout the Federal Circuits and the U.S. Supreme court. The aggravated felony categories per statute include, but are not limited to:
3. A "crime of violence" (which is a term defined at 18 USC 16(a) and cross-referenced in the INA under Section 101(a)(43)(F)), for which a sentence of at least one year is imposed. For example, a one-year suspended or executed sentence which is imposed for a misdemeanor Assault IV charge is an aggravated felony under this definition; see Matter of Martin Interim Decision #3481 (BIA 2002), holding that misdemeanor third-degree assault is an "aggravated felony." The U.S. Supreme Court will hear Josue Leocal v. John Ashcroft, No. 03-583, (unscheduled). The issue before the court in this case will be: Is a DUII conviction with serious bodily injury is a "crime of violence," and therefore an "aggravated felony?" The Ninth Circuit has held that this is not a "crime of violence" or an "aggravated felony," and the Eleventh Circuit has held that it is. Cert was granted 2/23/2004 on this issue.
4. Sexual abuse of a minor (sexual contact is not required with the minor to be an aggravated felony; Matter of Rodriguez-Rodriguez, (BIA 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. Operation Predator "targets" anyone ever convicted of any form of sex crime, even convictions from many years ago. Immigrant-defendants are being arrested and put into deportation proceedings and deported based on these old convictions. Customs and Border Patrol has a list of all people labeled as sex offenders. These deportations are subject to challenge under Ubaldo-Figueroa v. INS, 347 F.3d 718 (9th Cir. 2003). (Judge Pergerson's concurring opinion lays out the Due Process/retroactivity argument to be raised as defense to even being able to charge these old 'Operation Predator' cases.)
5. Drug trafficking: This may include mere possession of a controlled substance if the client is not the beneficiary of immediate Federal First Offender Act treatment and/or its equivalent in state court. (Cf. Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), states that possession of a controlled substance conviction which is expunged prior to deportation proceedings being commenced, and/or immediate conditional discharge, is not a conviction for immigration purposes. On the other hand, if the immigrant has not completed a deferred conditional discharge and has not had the initial possession of a controlled substance conviction expunged prior to deportation proceedings, they will be subject to deportation, potentially as an "aggravated felon.)
On April 26, 2004, the Ninth Circuit withdrew its Cazarez-Gutierrez opinion, holding that possession of a controlled substance is not an aggravated felony. 356 F.3d 1015 (9th cir. 2004). At this point, the Ninth Circuit may or may not decide that possession of a controlled substance is an aggravated felony. The BIA (Board of Immigration Appeals) has already decided that a state felony conviction for simple possession of a controlled substance is an aggravated felony, but even multiple state misdemeanor convictions are not. See Matter of Yanez-Garcia, 23 I&N 390 (BIA 2002), and Matter of Santos-Lopez, 23 I&N 419 (BIA 2002).
If removal is based on marijuana possession, the government has the burden of establishing that the offense is not a single offense of simple possession for personal use of 30 grams or less of marijuana. Absent such proof, an alien should not be deportable under this ground.
6. Trafficking in weapons or destructive devices.
7. Money laundering in an amount over $10,000.
8. Theft (including receipt of stolen property) or burglary, for 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. 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.
10. Alien smuggling (with exceptions).
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. False making or altering a passport (with exceptions).
14. 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.
15. Failure to appear convictions on a felony charge, for which a sentence of two or more years imprisonment may be imposed.
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. Prior deportation for an aggravated felony.
18. An offense relating to commercial bribery, counterfeiting, forgery, or trafficking in vehicles with altered identification numbers, for which the term of imprisonment is at least one year.
TRAVEL WARNING and INADMISSIBILITY GROUNDS.
Legal permanent residents may be inadmissible if they voluntarily leave the United States, although they are not deportable from the United States. Again, conduct or admissions not resulting in conviction that make an immigrant inadmissible are beyond the scope of this article.
The Ninth Circuit has several favorable immigration decisions that do not apply in other parts of the U.S. (i.e. Lujan- Armendariz v. INS, supra p. 6). The travel warning therefore applies to any travel outside the Ninth Circuit, and would stay in place until such time that the immigrant became a U.S. citizen. Instruct your client with prior convictions, or admissions to criminal conduct, to make sure that they can travel outside the U.S., or outside of the 9th Circuit, without jeopardizing their legal permanent status.
If your client has past criminal convictions, pending criminal charges, has had any type of contact with the law or intends to leave the U.S. (find out if the client will be allowed to re-enter by the INS), be sure to get up-to-the-minute information in this area of the law. The law is constantly changing; what is written here may not be the law at the time the defendant must act to preserve legal permanent resident status or become a United States citizen.
ORS 135.425- The responsibilities of defense counsel as defined in (2) of this statute: To aid the defendant in reaching a decision, defense counsel, after appropriate investigation, shall advise the defendant of the alternatives available and of factors considered important by the defense counsel or the defendant in reaching a decision.
In Vega-Gonzalez v. State of Oregon, filed January 28, 191 Or App 587 (2004), the Oregon Court of Appeals held that the "may be deported" advice is ineffective assistance of counsel if given to an immigrant defendant who has been convicted of an aggravated felony. In other words, immigrants who receive such misleading advice at the time of their plea proceedings are entitled to a Post-Conviction Relief vacation of their convictions if they apply for PCR in a timely manner. After winning their PCR case, these immigrant defendants would be sent back to the trial stage of the case and could assert their right to jury trial or attempt to negotiate for a non-deportable offense. The AAG in his petition for review in Vega-Gonzalez opined that this case could require hundreds of felony convictions to be set aside. Let's achieve that! The time for PCR in Oregon is now. Form PCR petitions may be available on my website by the time that this is published in the Oregon Defense Attorney. If not, I am willing to provide the same to anyone upon request. Please send any request to my e-mail at email@example.com.
INA § 240A(a) applies to legal permanent residents. INA § 240A(b) provides the procedure for cancellation of removal for non-permanent residents under very circumscribed conditions, i.e. an e.w.i. who was never able to legitimize status
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.
The INS is now known as the BCIS, Bureau of Citizenship and Immigration Services.
Statistical information provided by the Department of Homeland Security can be found at http://uscis.gov/graphics/shared/aboutus/statistics
Tan Huynh v. State of Oregon, Post Conviction case no.- 0132-13488, Circuit Court of the State of Oregon, Fourth Judicial District.
Websites for update/additional information of Immigration/Criminal Law. Publications including the Immigration and Nationality Act and books specifically geared to the immigration consequences of criminal convictions are available at the website(s) noted below.
American Immigration Lawyers Association
*(AILA offers its 2004 Immigration and Nationality Act Reference book for $82 [$64 for members] at www.ailapubs.org)
Brian Patrick Conry, P.C.
(generic post-conviction pleadings and articles concerning post-conviction relief available, also open letter to Immigrant/Defendant and to Criminal Defense Counsel)(case law, regulations, forms)
Immigration Consequences in New York
Immigration Law Daily
Immigrant Legal Resource Center
USCIS/INS, US Citizenship and Immigration Services
Law Offices of Norton Tooby
National Immigration Project of the National Lawyers Guild ....www.nationalimmigrationproject.org
National Legal Aid & Defender Assn. Defending Immigrants Partnership
About The Author
OCDLA Member Brian Conry, Esq. is a criminal defense/immigration attorney in Portland who focuses on deportation defense, criminal defense, and post-conviction. He maintains a website that focuses on deportation defense and post-conviction law at www.defendlife.net. Mr. Conry is a member of the National Lawyers Guild/National Immigration Project and the American Immigration Lawyers Association.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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