Criminal Defense of Immigrants
§ 2.17 B. Deportation is Often Mandatory
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Unfortunately for many immigrants with criminal histories, deportation is mandatory. It is the nature of the criminal conviction and sentence that dictates mandatory deportation. For example, if the client has been convicted of an offense that is characterized as an “aggravated felony” under immigration law, deportation is mandatory, detention is mandatory, and the client is completely ineligible or unable to obtain discretionary relief from deportation. There is absolutely nothing an immigration lawyer can do to prevent deportation.
Congress has amended the aggravated felony definition several times, adding more and more offenses, beginning with truly aggravated felonies, and moving to mere serious felonies, to ordinary and then minor felonies, and finally to encompass a number of what can only be called “minor misdemeanors.” For example, a Georgia conviction of misdemeanor shoplifting invariably receives a suspended 12-month sentence, qualifying it as an aggravated felony.
At the same time, Congress – trading on the truly reprehensible title of the category – has inflicted worse and worse consequences on those whose convictions fall within the definition of the term. First, an aggravated felony conviction constitutes a ground of deportation. Second, it serves as a trigger for the deprivation of a great number of procedural rights during removal proceedings. Third, an aggravated felony conviction disqualifies noncitizens in immigration court from an increasing number of forms of relief from deportation, as well as putting them at risk of additional adverse immigration consequences. Finally, an aggravated felony conviction multiplies by a factor of 10 the maximum sentence, and doubles or triples the minimum prison term that must be imposed for illegal re-entry.