Aggravated Felonies

 

(A)  In General.  In 1996, for the first time, Congress enacted a statutory definition of “conviction.”[209]  This statute modified the definition of “conviction” enunciated by the BIA in Matter of Ozkok.[210]  The term “conviction” has the same meaning for purposes of both inadmissibility and deportability.[211] 

 

            The elements of a conviction under the statutory definition are as follows:

 

            (1)       A formal judgment of guilt, i.e., a judgment of conviction and                                    sentence in a criminal case, constitutes a conviction.

 

            (2)       Where formal adjudication of guilt has been withheld, a conviction                          requires:

           

                        (a)  A finding of guilt, which can be based upon:

                                    (i)    A guilty verdict after court trial, or

                                    (ii)   A guilty verdict after jury trial, or

                                    (iii)  Entry of a plea of guilty, or

                                    (iv)  Entry of a plea of nolo contendere, or,

                                    (v)   Admission by the defendant of sufficient facts to warrant                                           a finding of guilt, and

                        (b)  Imposition of sentence, in which the court orders some form of

                                    (i)    Punishment, or

                                    (ii)   Penalty, or

                        (iii)  Restraint on the noncitizen’s liberty to be                                                                       imposed.[212] 

 

        (1)  Effective Date of New Definition.  This definition of conviction applies to “convictions and sentences entered before, on, or after” September 30, 1996, the date the IIRAIRA was enacted.[213]  Some courts have held this definition retroactively applicable to convictions occurring before the passage of the legislation.[214]  See § 3.9, supra.

 

In the context of an illegal re-entry case, the Ninth Circuit laid the foundations for possible challenge to the retroactive application of the aggravated felony definition.[215]  Despite the finding in St. Cyr that “IIR[A]IRA’s amendment of the definition of ‘aggravated felony’. . . clearly states that it applies with respect to ‘convictions entered on, before, or after’ the statute’s enactment date,”[216] the concurring opinion in Ubaldo-Figueroa found there was still a plausible due process argument that the expressly imposed retroactivity of the aggravated felony definition is unconstitutional, since “[t]he Due Process clause of the Fifth Amendment forbids Congress from enacting legislation expressly made retroactive when the ‘retroactive application [of the statute] is so harsh and oppressive as to transgress the constitutional limitation.’”[217]  See § 3.9(B), supra.

(2)  Date of Conviction.  The date of conviction of an aggravated felony is considered to be the date on which sentence was imposed.[218]  See also § 3.36, infra.

 

In order to trigger a particular immigration consequence, the conviction must have occurred after the effective date of the statute that attaches the specific consequence to the aggravated felony conviction.  For example, an aggravated felony will constitute a permanent bar to showing Good Moral Character only if the conviction occurred on or after November 29, 1990, the effective date of the Immigration Act of 1990 that attached this consequence to an aggravated felony conviction.[219]

 

An aggravated felony conviction, however, will trigger deportation regardless of the date of the conviction.  See § 3.9, supra.

 

(3)  Federal Law Governs, Not State Definition of Conviction.  The definition of a “conviction” is governed by federal law, irrespective of the label attached to a disposition under state law.[220]  Therefore, where the requirements of the federal statute have been met, the disposition will be considered a “conviction” for immigration purposes, even if it is not considered to be a conviction under the law of the state or jurisdiction in which the disposition occurred. Thus, the District Court for the Northern District of Texas rejected a claim that because Texas law did not consider a “deferred adjudication” to be a conviction, the Full Faith & Credit statute required the federal court to accept this state rule.[221]  See § 6.11, infra.

[209] INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A), as enacted by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) (enacted as Division C of Omnibus Consolidated Appropriations Act, 1997, Pub. L. No. 104-208, § 322(a)(1), 110 Stat. 3009, 3009-628). 

[210] Matter of Ozkok 19 I. & N. Dec. 546 (BIA 1988); see also Matter of Punu, 22 I. & N. Dec. 224 (BIA 1998) (holding that Congress deliberately changed the Ozkok test).

[211] Marino v. INS, 537 F.2d 686 (2d Cir. 1976).

[212] INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A), as enacted by IIRAIRA § 322(a)(1).

[213] IIRAIRA § 322(c).

[214] Moosa v. INS, 171 F.3d 994, 1006-1110 (5th Cir. 1999); Madriz-Alvarado v. Ashcroft, 383 F.3d 321 (5th Cir. Aug. 27, 2004) (deferred adjudication for drug possession was a “conviction” for immigration purposes even if entered prior to enactment of new definition of conviction, since IIRAIRA definition of “conviction” is retroactive).

[215] United States v. Ubaldo-Figueroa, 364 F.3d 1042 (9th Cir. Apr. 7, 2004) (concurring opinion) (The concurring opinion was originally part of the majority decision, United States v. Ubaldo-Figueroa, 347 F.3d 718 (9th Cir. 2003); however, this argument was relegated to a concurring opinion upon denial of a request for rehearing en banc).

[216] INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. at 2289 (2001).

[217] Ubaldo-Figueroa, 364 F.3d at 1051 (quoting United States v. Carlton, 512 U.S. 26, 30 (1994)).

[218] Donaldson v. United States, 2005 WL 1248879 (S.D. Tex. Apr. 26, 2005) (unpublished) (noncitizen found guilty by jury of an aggravated felony offense [simple possession] on November 13, 1989, but sentenced [to deferred adjudication] on January 19, 1990, was found to have been “convicted” on January 19, 1990, and was therefore permanently barred from naturalization for inability to show Good Moral Character).

[219] Immigration Act of 1990, § 509(a); INS, Office of the General Counsel, Genco Opinion No. 96-16, 74 Interpreter Releases 1515, 1530 (Oct. 6, 1997).

[220] INA § 101(a)(48)(B), 8 U.S.C. § 1101(a)(48)(B), as enacted by IIRAIRA § 322(a)(1).  See also United States v. Ayala-Gomez, 255 F.3d 1314 (11th Cir. 2001).

[221] Bui v. Ashcroft, 2003 WL 251929 at p. *3 (N.D. Tex. 2003) (unpublished).