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|Things You Should Know About Immigration Bonds|
The Things Everyone Should Know.
By Brian K. Bates
Quan, Burdette & Perez, P.C.
5177 Richmond Avenue Suite 800 Houston, TX 77056 Tel (713) 625-9200
George Carlin once had a great comedy routine about the "Seven words you cannot say on television." Well, I hereby offer my thoughts on the "seven things everyone should know about crimes and immigration." Now that we have established some context for the discussion that follows, here are the Seven Things:
A. Anyone Who is Not Citizen Can Be Deported.
Never assume that a client is a citizen just because the have been here virtually all their life. Many LPR'' s came as children and have never become United States citizens through naturalization. Never assume that a client won''t be deported (the Author prefers the old term, as being less euphemistic and more honest than the newer term "removed") just because he or she has been an LPR for 30 years and the criminal offense charge seems comparatively minor. Unless and until an alien legally obtains United States citizenship, a criminal offense can and frequently does result in deportation. Believe it.
This is especially true of offenses classified as aggravated felonies under INA §101(a)(43). An alien convicted of an "aggravated felony" is deportable and ineligible for most forms of relief, including cancellation of removal, asylum, or voluntary departure. Aggravated felony convictions are therefore most to be avoided, if at all possible. Unfortunately, this is difficult because many of the offenses do not seem "aggravated" and are not "felonies."
For example: Any theft offense with a sentence of at last a year is an "aggravated felony." INA §101(a)(43)(G). Likewise, any "crime of violence" with a sentence of a year is considered an aggravated felony. INA §101(a)(43)(F). Therefore, a misdemeanor conviction for theft or assault, with a sentence of one year, is an aggravated felony.
B. A Deferred Adjudication is a Conviction.
Many immigration and criminal defense attorneys are now aware of this, but it bears repeating: a deferred adjudication is considered a "conviction" for immigration purposes. This was not the case prior to 1996. See, e.g., Matter of Garcia, 16 I&N Dec. 270 (BIA 1985), Martinez-Montoya v.1NS, 904 F.2d 1018 (5th Cir. 1990).
In 1996, however, IIRIRA added to the INA for the first time a statutory definition of "conviction." INA §101(a)(48). That definition has two components. A "formal judgment of guilt" entered by a court will always qualify as a conviction. INAI§101(a)(48)(A). However, a conviction can also exist where "adjudication of guilt has been withheld" so long as there has been a finding of guilt or a plea or guilty or nolo contendere and the court has imposed some restraint upon the alien''s liberty. INA §101(a)(48)(A)(i) and (ii).
Texas deferred adjudications have now been held to qualify as "convictions" under the new definition. Matter of Punu, Interim Decision No.3364 (BIA: 1998); Moosa v. INS, 171 F.3d 994 (5th Cir. 1999). And the new definition applies retroactively, to deferred adjudications that predated the new definition in 1996. Moosa v. INS, supra. : Under certain circumstances, discussed below, a deferred adjudication can still be a sentencing option with significant benefits in immigration proceedings, but it is clear that aliens can no longer avoid proceedings altogether by deferring the adjudication of guilt.
But that''s not all. Once a conviction is deemed to exist, it is becoming nigh impossible to do anything to eliminate it from consideration as an immigration issue. Expungements under state rehabilitative statutes no longer remove the conviction for immigration purposes. Matter of ROLDAN-Santoyo, Int. Dec. No. 3377 (BIA 1999). More recently, the Board of Immigration Appeals has held that even vacating the conviction for rehabilitative reasons or to relieve immigration hardships does not eliminate it for immigration purposes. To be effective immigrant immigration proceedings, the conviction must vacate for "procedural or substantive defect in the underlying criminal proceedings." Matter of Pickering, 23 I&N Dec. 621 (BIA 2QO3)..
C. Probation Means Nothing in Immigration Court
Another critical fact that everyone should know is that, in assessing immigration consequences, it makes not one bit of difference if any or even all of the alien''s sentence of imprisonment is suspended in lieu of probation. A sentence of one year is considered a sentence of one year, even if the alien never actually served a day in jail.
The reason for this is that, at the same time the definition of a "conviction" was added to the INA, Congress added something else. The statute also provides that, for purposes of the INA,
Any reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.
INA §101(a)(48)(B), emphasis supplied. Therefore, a sentence, of a year probated is still a sentence of one year.
This is incredibly significant in the immigration context, because the length of the sentence determines in many cases whether an offense is an "aggravated felony." As noted earlier, for example, theft offenses and crimes of violence are aggravated felonies if there is a sentence of at least one year. INA §101(a)(43)(F) and (G). The same is true of certain offenses related to racketeering, gambling, bribery, counterfeiting or forgery, and certain passport offenses. See INA §§lOl(a)(43)(J), (P) and (R).
This creates a situation that is counterintuitive to most defense attorney thinking. A criminal defense attorney representing an alien charged with theft, for example, would probably be happy to negotiate a plea where his client serves no jail time and wouldn''t think twice about accepting a year or more in probation. Yet, in so doing, he would almost certainly doom the alien to deportation and permanent banishment. Any alien charged with such an offense would be better off serving a jail sentence of 364 days than a one year probated sentence. That''s weird, but true.
D. Sometimes the Sentence Matters.
Next on the list of the "deadly seven" is this unavoidably ambiguous word of caution. While probation means nothing in Immigration Court, sometimes the length of a sentence means a great deal.
Asalready discussed, some criminal offenses become aggravated felonies with a sentence of a year or more. Another way the sentence can become significant is in relation to multiple offenses. For example: an alien with two or more DWI is would not be deportable from the United States because DWI is neither a crime involving moral turpitude nor an aggravated felony. Matter of TORRES-Varela, 23 I&N Dec. 78 (BIA 2001); U.S. v. Chapa-Garza, 243 F.3d 921 (5th Cir. 2001), rehearing denied, 262 F.3d 479 (5th Cir. 2001). However, if sentenced to a total of five years, he or she becomes inadmissible and therefore unable to return home after travel outside the U.S. because any two or more crimes with an aggregate sentence of five years makes an alien inadmissible. INA §212(a)(2)(B). Again, a lengthier probated term may be worse in such cases than a shorter sentence actually served in jail.
Incidentally, this is where a deferred adjudication may still be useful, depending on the state sentencing statute. Let''s use the Texas deferred adjudication statute as an example. In cases where the length of the sentence is or may become significant for immigration purposes, a deferred adjudication makes a BIG difference because there is no sentence of imprisonment. While a sentence of imprisonment is considered regardless of whether some or all is suspended in lieu of probation there is no mention of a "term of imprisonment" anywhere in the deferred adjudication statute. Tex. Code Of Crim. P.Art. 42.12, §5(b). The Code provides that the court may defer the adjudication of guilt and place the defendant upon probation for a period of up to two years for any misdemeanor, and up to ten years for any felony. But this is NOT a pronouncement of sentence. The €œpronouncement of sentence" comes, if it ever comes, only AFTER an adjudication of guilt. Id.
While a deferred adjudication is now a conviction for immigration purposes, it cannot be a conviction for an "aggravated felony" in those instances where the aggravated felony definition requires a sentence of imprisonment. Nor can the time spent on deferred probation be considered in the aggregate with other sentences. In such cases, a deferred adjudication may still be a critically important sentencing option for the noncitizen defendant.
E. Sometimes the Sentence Does NOT Matter a Damn Bit.
Certain offenses are what they are for immigration purposes regardless of the length of the criminal sentence, and even regardless of whether there IS a sentence. In such cases, obviously, a deferred adjudication has no benefit over any other type of conviction."
Some examples of offenses where the sentence does not matter include:
Murder, rape or sexual abuse of a minor, all of which are aggravated felonies under INA §lOl(a)(43)(A) regardless of sentence.
Any controlled substance offense will make an alien deportable regardless of sentence.
Any controlled substance offense will also make an alien deportable regardless of sentence, except for a single offense of simple possession for personal use of less than 30 grams of marijuana.
Drug trafficking crimes, which are aggravated felonies regardless of the sentence.
Any criminal offense relating to a firearm will render an alien subject to deportation regardless of sentence or the severity of the offense. INA §237(a)(2)(C).
Illicit trafficking in firearms is an "aggravated felony regardless of sentence. INA §10l(a)(43)(C).
Domestic violence offenses are deportable offenses regardless of sentence. INA §237(a)(2)(E); and
A single crime involving moral turpitude is a deportable offense if a sentence of a year or more may be imposed -- the actual sentence received is immaterial to deportability. INA §237(a)(2)(A)(i).
F. Sometimes an Alien Needs to Stay in Jail.
The sixth nugget of essential wisdom is that sometimes it is advisable for an alien facing immigration court proceedings to stay in jail. This can arise in two ways.
The first has already been referenced. Since probation does not matter in Immigration Court, it is often far, far better for an alien to serve a shorter sentence in jail than a longer term of probation. Any jail term served that is shorter than one year is advisable where a sentence of one year will be significant under the Immigration and Nationality act.
The second instance where jail can be a "good" thing is where detention by the immigration authorities is likely anyway due to the detention policies of the Immigration and Nationality Act. Some elaboration on those policies is required.
1. Traditional Detention Policy.
The immigration enforcement authorities have always had the power to arrest and detain aliens whose presence in the country was thought to be unlawful. Such detention power was, however, not penal in nature; again, Immigration Court proceedings are deemed to be civil in nature no matter how uncivil the results may seem.
In keeping with the civil nature of the proceedings, it was generally held that an alien should not be detained or required to post a bond for his release unless there was reason to believe he or she was a security risk to the community, or likely to abscond. Matter of Shaw, 17 I&N Dec. 171 (BIA 1979). Obviously, in such cases, a criminal history was a relevant determination in considering whether to detain or release on bond, as were any pending criminal charges. Id.
Beginning in 1990, Congress began to shift the presumption against detention. The INA was amended to provide a strong presumption that any alien convicted of an aggravated felony would be detained unless clearly shown not to be a threat or likely to abscond. Matter of De la Cruz, 20 I&N Dec. 346 (BIA 1991). In 1996 (again, in IIRIRA), Congress came full circle.
2. Mandatory Detention.
The Immigration and Nationality Act now provides that, aliens who are deportable or inadmissible for criminal convictions, with few exceptions, are to be taken into custody and may only be released under extremely limited circumstances. INA §236(c). A great deal of litigation has been conducted over the past several years, discussion of which is beyond the scope of this paper. Suffice to say that while there have been some victories in habeas corpus proceedings, most have been in District Courts in other Circuits. It is extremely difficult to secure the release of any alien with a criminal conviction from immigration custody.
As a result of this greatly expanded detention authority in, immigration proceedings, the numbers of aliens detained has skyrocketed. In Texas, the DHS contracts with private detention corporations (like Corrections Corporation of America facilities in: Houston and Laredo), as well as various Texas counties for detention space. The Houston DHS: Office frequently must house detainees in surrounding county jails, and €œsurrounding" can mean two or three counties over!
All too often, an alien charged with a criminal offense appears before a judge or magistrate and a bond is set to insure his appearance for the criminal proceedings. Then, after his family goes to considerable expense to secure the alien''s release, they discover that instead of being released he is simply moved from one jail to another. Sometimes, he even stays in the same jail and the only thing that changes is who pays for his meals.
Obviously, an alien defendant and the attorney representing him in the criminal case would like to know whether the immigration authorities will release him before they go to the good trouble and expense of securing his release on the criminal charges. Just having the client change jails is obviously useless. Even worse, it can actually be quite BAD in many cases. Unlike pre-trial detention, immigration detention is not generally credited towards any eventual sentence on the criminal case.
Unfortunately, the DHS will not even discuss custody issues until the alien is actually in their custody --and that doesn''t happen until he is released by the state and the detainer shifts to I the DHS. An experienced immigration attorney can, however, advise as to whether release on bond is legally possible, and perhaps make an educated guess at whether it is likely. If release by the immigration authorities is impossible or extremely unlikely, it may be best to simply stay in State custody where, at least, the time spent in pre-trial detention may eventually be credited.