Aggravated Felonies
§ 2.11 (A)
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(A) Mandatory Detention. The 1996 IIRAIRA greatly expanded the number of inadmissible and deportable noncitizens subject to mandatory immigration detention prior to a final order of removal. The IIRAIRA provides that the Attorney General shall mandatorily detain, except in very limited circumstances, noncitizens who are charged with being inadmissible or deportable under certain grounds related to crimes.[105] The Attorney General must “take into custody,” and thereafter not release, a noncitizen inadmissible under grounds relating to moral turpitude, drug conviction, drug trafficking, prostitution, miscellaneous convictions, diplomatic immunity, and terrorist activities.[106] The Attorney General must also “take into custody,” and thereafter not release, a noncitizen deportable under any of the following grounds:
(1) conviction of one crime of moral turpitude committed within five years of last entry if a sentence to one year or more imprisonment was imposed,
(2) conviction of two crimes of moral turpitude,
(3) conviction of an aggravated felony,
(4) conviction of a drug or firearms offense, or
(5) conviction of miscellaneous crimes (e.g., sabotage, espionage), drug abuse/addiction, or terrorist activities.[107]
Many criminal convictions do not fall into any of the categories that trigger inadmissibility or deportability. See N. Tooby & J. Rollin, Safe Havens: How to Identify and Construct Non-Deportable Convictions (2005). In addition, a considerable number of dispositions that do fall within one or another category triggering immigration problems still do not trigger mandatory detention:
(1) Domestic Violence convictions or court findings that a protective order has been violated do not trigger mandatory detention (unless they constitute CMTs, in which case they must be analyzed as such).
(2) High Speed Border Chase convictions, under 18 U.S.C. § 758, do not trigger mandatory detention.
(3) A single Crime Involving Moral Turpitude conviction or admission does not trigger mandatory detention for deportable or inadmissible noncitizens if it falls within the Petty Offense, Youthful Offender or Political Offense Exceptions to inadmissibility.
(4) Conviction of a single Crime of Moral Turpitude does not trigger mandatory detention for noncitizens subject to deportation where (a) the crime was not committed within five years of admission, and (b) a sentence of less than one year was imposed.[108]
(5) Controlled Substance convictions or admissions do not trigger mandatory detention if one of the following conditions applies:
(a) The drug is not listed on the federal schedules.[109]
(b) The Record of Conviction does not identify the particular drug.[110]
(c) In the Ninth Circuit, at least, a first-offense conviction of simple possession, possession of paraphernalia, and perhaps other offenses that are (i) more minor than simple possession, and (ii) not forbidden under federal law, such as being under the influence, visiting a place where drugs are used, and driving under the influence, where state or foreign rehabilitative relief has been granted under circumstances in which the defendant would have been eligible for relief under the Federal First Offender Act, 18 U.S.C. § 3607, if the charges had been brought in federal court. See § 6.14, infra.
(6) An Aggravated Felony conviction does not trigger mandatory detention if the conviction is a foreign conviction and the term of imprisonment was not completed within the last 15 years.[111]
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, aggravated felony, or controlled substance offense, there is an argument against mandatory detention since the pertinent grounds of inadmissibility and deportability list substantive offenses, and attempt and conspiracy to commit them, but no other classes of inchoate offenses. See § § 3.48-3.54, infra.[112]
Additionally, post-conviction relief, such as executive pardons, and vacating the conviction on a basis of legal validity, will work to avoid mandatory detention for most, if not all, types of criminal misconduct. See Chapter 6, infra.[113] Judicial Recommendations Against Deportation, granted by the sentencing judge prior to November 29, 1990, also avoid mandatory detention on the basis of CMT and aggravated felony convictions. See § 6.15, infra.
If mandatory detention applies, the immigration court is not permitted to release the immigrant on bond, unless, as discussed below, a federal court orders a bond hearing. Moreover, even if the immigration court finds that the noncitizen is not removable, if the DHS appeals that decision, the immigrant is subject to mandatory detention until the Board of Immigration Appeals decides the case, which may be a considerable time later.[114]
In Demore v. Kim,[115] the Supreme Court found that mandatory detention of a lawful permanent resident did not violate due process where the LPR conceded deportability and did not request a hearing to determine whether he was subject to mandatory detention. The Supreme Court thereby overturned a number of decisions to the contrary.[116]
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) . . . .”[117] 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 permissibility 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.”[118]
If a noncitizen does not concede deportability, and can raise a nonfrivolous argument that his or her criminal disposition does not fall within a mandatory detention category, s/he remains entitled to a bond hearing and to release on reasonable bond[119] unless s/he is shown to be a flight risk or danger to the community.
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.”[120] If he had prevailed at the hearing, the Immigration Judge would then have determined whether the noncitizen “could be considered . . . for release under the general bond provisions.”[121] As the noncitizen in Demore did not seek relief under the procedures required by Matter of Joseph,[122] the Court did not determine the validity of those procedures. Justice Kennedy pointed out that a noncitizen would also have had a right to a bond hearing “if the continued detention became unreasonable or unjustified.”[123] At least one case, following Demore v. Kim, has found that no due process claim exists where the noncitizen contests the finding of removal, but the court finds that the basis for contesting the claim has no merit.[124] Another court has found a period of two years and eight months too long to detain a noncitizen pending expedited removal.[125]
[105] INA § 236(c)(1), 8 U.S.C. § 1226(c)(1).
[106] INA § § 236(c)(1)(A) and (D), 8 U.S.C. § § 1226(c)(1)(A) and (D).
[107] INA § § 236(c)(1)(B) and (C), 8 U.S.C. § § 1226(c)(1)(B) and (C).
[108] Note that the CMT ground of deportability, INA § 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)(A)(i), only requires that the maximum possible sentence be one year or more.
[109] INA § § 212(a)(2)(A)(i)(II), 237(a)(2)(B)(i), 8 U.S.C. § § 1182(a)(2)(A)(i)(II), 1227(a)(2)(B)(i).
[110] Matter of Paulus, 11 I. & N. Dec. 274 (BIA 1965).
[111] INA § 101(a)(43), 8 U.S.C. § 1101(a)(43) (first sentence following subparagraph [U]).
[112] See INA § § 101(a)(43)(U), 212(a)(2)(A)(i), 212(a)(2)(A)(ii), 237(a)(2)(B). See also United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir. 2001); Matter of Batista-Hernandez, 21 I. & N. Dec. 955 (BIA 1997).
[113] Including drug and firearms convictions, aggravated felony convictions, and other convictions, such as espionage, sabotage, treason, sedition, threats against the president or successors, selective service violations, trading with the enemy violations, violations of travel restrictions, or importing a noncitizen for immoral purposes.
[114] See § 2.11(B), infra.
[115] Demore v. Kim, 538 U.S. 510 (2003).
[116] See, e.g., Kim v. Ziglar, 276 F.3d 523 (9th Cir. 2002), cert. granted, 122 S.Ct. 2696 (June 28, 2002), overruled, Demore v. Kim, 538 U.S. 510 (2003); Patel v. Zemski, 275 F.3d 299 (3d Cir. 2001); Hoang v. Comfort, 281 F.3d 693 (10th Cir. Mar. 5, 2002).
[117] Demore v. Kim, supra, 538 U.S. at 526, n.6.
[118] Id. at 532 (Kennedy, J., concurring).
[119] Hmaidan v. Ashcroft, 258 F.Supp.2d 832 (N.D.Ill. Apr. 28, 2003) (Attorney General authorization to set conditions of release under INA § 241(a)(3), 8 U.S.C. § 1231(a)(3) includes authorization to set bond as a condition of release from immigration custody).
[120] Demore v. Kim, supra, 538 U.S. 510, 514 (2003).
[121] Demore v. Kim, supra, 538 U.S. 510, 514, and n.3 (2003).
[122] Matter of Joseph, 22 I. & N. Dec. 799 (BIA 1999).
[123] Demore v. Kim, supra, 538 U.S. 510, 532 (2003) (Kennedy, J., concurring).
[124] Gonzalez v. O’Connell, 355 F.3d 1010 (7th Cir. Jan. 21, 2004) (mandatory detention constitutional when basis for contesting removal was based on claim contrary to binding case precedent).
[125] Tijani v. Willis, 430 F.3d 1241 (9th Cir. Dec. 13, 2005) (two years and four months detention pursuant to INA § 236(c), 8 U.S.C. § 1226(c) pending expedited removal proceedings is not expeditious).