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§ 7.15 6. Foreign Conviction Date Requirement

 
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In 1990, the Immigration Act of 1990, effective November 29, 1990,[123] added a provision to the aggravated felony definition, including within it foreign convictions of listed offenses for which the term of imprisonment was completed within the past 15 years.  The aggravated felony definition applies to all offenses defined in the statute “in violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years.”[124]  There is no provision stopping the clock on this provision.[125]  Therefore, this period continues to run, and at the point the date on which the noncitizen was released from custody on the foreign conviction passes the 15-year mark, the conviction instantly ceases to be an aggravated felony. 

            If no custody was imposed as a result of the conviction, logic dictates that the date of imposition of sentence would be considered the release date for this purpose.  Decisions construing the concept of “release from custody” for purposes of the mandatory detention provision may be analogous.[126]  This mandatory detention provision applies upon release from physical custody,[127] and so would seem to be the same definition as release from “imprisonment” in the aggravated felony foreign conviction definition.


[123] Immigration Act of 1990, Pub. L. 101-649, 104 Stat. 4978  (November 29, 1990).

[124] INA § 101(a)(43), 8 U.S.C. § 1101(a)(43) (second to last sentence).

[125] Compare INA § 240A(d)(1), 8 U.S.C. § 1229b(d)(1) (stopping the clock on seven-year presence requirement for cancellation for LPRs upon service of a notice to appear or commission of a listed criminal offense).

[126] INA § 236(c)(1), 8 U.S.C. 1226(c)(1) (“The Attorney General shall take into custody any [specified] alien . . . when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation . . . .”).

[127] Matter of West, 22 I. & N. Dec. 1405 (BIA 2000).  See generally I. Kurzban, Kurzban’s Immigration Law Sourcebook 110 (9th ed. 2004).

 

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