On April 29, 2003, the United States Supreme Court narrowly reinstated the constitutionality of INA § 236(c), 8 U.S.C. § 1226(c), the immigration statute that requires the government to hold noncitizens without bond during deportation or exclusion proceedings, where they conceded they had been convicted of criminal offenses that rendered them subject to the mandatory detention statute and had not requested a hearing at which to argue they were not. Demore v. Kim, 538 U.S. 510, 123 S.Ct. 1708 (2003) (5 to 4 decision). To read the full text of this opinion, go to:
http://laws.lp.findlaw.com/us/000/01-1491.html
http://www.supremecourtus.gov/opinions/02pdf/01-1491.pdf Criminal lawyers should attempt in criminal court to obtain criminal dispositions that do not trigger mandatory detention (listed in Part I of this article), while immigration counsel can argue in immigration court that a given disposition does not do so. (Part II.) (A) CRIMINAL DISPOSITIONS THAT DO NOT TRIGGER MANDATORY DETENTION Contrary to the assumption that most criminal convictions trigger mandatory detention during removal proceedings, many dispositions do NOT do so. Many criminal convictions do not fall into any of the categories that trigger inadmissibility or deportability at all. In addition, a considerable number of dispositions that DO fall within one or another category triggering immigration problems still DO NOT trigger mandatory detention, and are listed here. A single CRIME OF MORAL TURPITUDE conviction or admission does not trigger mandatory detention if any of the following circumstances exists: (1) One conviction of a crime of moral turpitude does not trigger mandatory detention if: (a) It falls within the Petty Offense Exception to inadmissibility, (i) the maximum possible sentence is one year or less in custody, and (ii) the actual sentence imposed, even if execution is suspended, is six months in custody or less, and (iii) the noncitizen never committed a second CMT. (b) It falls within the Youthful Offender Exception to inadmissibility, INA § 212(a)(2)(A)(ii)(I), 8 U.S.C. § 1182(a)(2)(A)(ii)(I), where (i) the offense was committed under age 18, and (ii) the offender was released from custody over five years ago, (iii) the noncitizen never committed a second CMT, INA § 212(a)(2)(A)(ii)(I), 8 U.S.C. § 1182(a)(2)(A)(ii)(I), AND (iv) the sentence imposed (even if execution was suspended) was less than one year in custody. INA § 236(c)(1)(A), (C), 8 U.S.C. § 1226(c)(1)(A), (C). (c) It is subject to one or more of the excusing conditions listed in paragraph (4), below. (2) One or more CMT convictions or admissions do not trigger mandatory detention if each of them is nullified by one of the following principles: (a) The offense is a purely Political Offense. INA §§ 212(a)(2)(A)(i)(I), 237(a)(2)(A)(i)(I), 8 U.S.C. §§ 1182(a)(2)(A)(i)(I), 1227(a)(2)(A)(i)(I). (b) A full and unconditional pardon has been granted by the federal or state executive of the jurisdiction of conviction. INA § 237(a)(2)(A)(v), 8 U.S.C. § 1227(a)(2)(A)(v); Rasmussen v. Robinson, 163 F.2d 732 (3d Cir. 1947); Matter of H, 6 I. & N. Dec. 90 (BIA 1954)(pardon eliminates CMT ground of inadmissibility). (c) A valid judicial recommendation against deportation was granted by the sentencing judge prior to November 29, 1990, when the authority to do so was repealed, since the government is still honoring JRADs issued at that time. See N. Tooby & J. Foster, CRIMES OF MORAL TURPITUDE [19] (2002). (d) The conviction has been vacated on a ground of legal invalidity and replaced by a conviction that does not trigger mandatory detention. (e) Arguably if the conviction is for the offenses of accessory after the fact, solicitation, misprision of a felony, and possibly facilitation or aiding and abetting the commission of a CMT, since the pertinent grounds of inadmissibility and deportability list substantive CMT offenses, and attempt and conspiracy to commit them, but no other classes of inchoate offenses. See Matter of Batista-Hernandez, Int. Dec. 3321 (BIA 1997). (B) PROCEDURES FOR AVOIDING MANDATORY DETENTION IN IMMIGRATION COURT AFTER DEMORE V. KIM Under Demore v. Kim, the Court held that if a noncitizen does not concede deportability, and can raise a nonfrivolous argument that his criminal disposition does not fall within a mandatory detention category, he or she remains entitled to a bond hearing and to release on reasonable bond unless he or she is shown to be a flight risk or danger to the community. The Demore decision was based on the fact, conceded by the noncitizen, that his convictions were valid and that he was "therefore subject to mandatory detention under § 1226(c) . . . ." Ibid. at 1717, n.6. Since the plurality of four justices was insufficient to hold the mandatory detention statute constitutional, Justice Kennedy's fifth vote and concurring opinion defines the narrow holding of the case. He held that "due process requires individualized procedures to ensure there is at least some merit to the Immigration and Naturalization Service's (INS)) charge [of removability] and, therefore, sufficient justification to detain a lawful permanent resident pending a more formal hearing. [Citation omitted.] If the Government cannot sustain this minimal, threshold burden, then the permissibilit of continued detention pending deportation proceedings turns solely upon the alien's ability to satisfy the normal bond procedures - namely, whether if released the alien would pose a risk of flight or a danger to the community." Ibid. at 1722 (Kennedy, J., concurring). As both the plurality and concurring opinions note, the noncitizen was entitled to a hearing in which he could have "raised[d] any nonfrivolous argument available to demonstrate that he was not properly included in a mandatory detention category." If he had prevailed at the hearing, the Immigration Judge would then have determined if the noncitizen a"could be considered . . . for release under the general bond provisions." Ibid. at 1713, and n.3 (plurality opinion). In Demore v. Kim, however, the noncitizen did not seek relief under the procedures required by Matter of Joseph, 22 I. & N. Dec. 799, 199 WL 339053 (BIA 1999), and the Court therefore did not determine their validity. Justice Kennedy also pointed out that a noncitizen would also have had a right to a bond hearing "if the continued detention became unreasonable or unjustified." Ibid. at 1722 (Kennedy, J., concurring). For more information on mandatory detention, see Katherine A. Brady, California Criminal Law and Immigration § 11.21 (2002); C. Gordon, S. Mailman & S. Yale-Loehr, Immigration Law and Procedure, Chapter 108 (Detention of Noncitizens) (2002); Ira Kurzban, Kurzban's Immigration Law Sourcebook 98-102, 218-227 (8th ed. 2002); Dan Kesselbrenner & Lory Rosenberg, Immigration Law and Crimes § 8.9 (2003); Norton Tooby, Aggravated Felonies § 2.11 (2003); Norton Tooby, Criminal Defense of Immigrants § 1.8 (2003). The last two books may be ordered online at CriminalAndImmigrationLaw.com.