Criminal Defense of Immigrants

 

The question of sentence affects deportability in several ways:

 

                (1)  A sentence imposed of a certain length can affect deportability:

 

                (a)  Certain common offenses are aggravated felonies only if a sentence of one year or more is imposed.  See § § 19.10, 10.66, infra.

 

                (b)  For proceedings commenced prior to April 24, 1996, a conviction of a crime of moral turpitude triggers deportation only if a sentence of one year or more was imposed.  See § 20.36, infra.  (For proceedings begun since that time, a possible sentence of one year or more is sufficient to trigger deportation for one CMT conviction.  See § 20.35, infra.)

 

                (c)  A noncitizen can avoid the “inadmissibility at entry” ground of deportation if the Petty Offense Exception (POE) applies to excuse inadmissibility based on conviction or admission of one crime involving moral turpitude.  If the sentence imposed for a CMT conviction is six months or less, and the two other POE requirements are also met, then the conviction qualifies for the POE to inadmissibility for one conviction of a crime involving moral turpitude.  See § 20.29, infra.[51]

 

                (d)  A noncitizen can avoid the “inadmissibility at entry” ground of deportation if the noncitizen can avoid inadmissibility under the multiple convictions ground.  This ground triggers inadmissibility if the noncitizen has been convicted of two or more offenses, other than purely political offenses, for which the “aggregate sentences to confinement were 5 years or more . . . .”[52]  See § 18.18, infra.

 

                (2)  An offense carrying a maximum possible sentence of a certain length can affect deportability:

 

                (a)  A conviction of a crime of moral turpitude is deportable if a sentence of one year or more may be imposed.  See § § 20.34-20.36, infra.

 

                (b)  A conviction of a federal gambling offense, in violation of 18 U.S.C. § 1955, becomes an aggravated felony if a sentence of one year imprisonment or more may be imposed.[53]  While the statutory maximum is five years, it is possible that under recent United States Supreme Court authority, the maximum sentence that may constitutionally be imposed is less than one year.  See § 19.86, infra.

 

                (c)  A conviction of transmission of wagering information by wire, in violation of 18 U.S.C. § 1084, becomes an aggravated felony if a sentence of one year imprisonment or more may be imposed.[54]  While the statutory maximum is two years, it is possible that under recent United States Supreme Court authority, the maximum sentence that may constitutionally be imposed is less than one year.  See § 19.86, infra.

 

                (d)  A conviction of failure to appear by a defendant to serve a sentence for an underlying offense punishable by five years or more is an aggravated felony.[55]  It is possible that under recent United States Supreme Court authority, the maximum sentence that may constitutionally be imposed may be less than one year.  See § 19.67 infra.

 

                The statute includes as an aggravated felony “an offense relating to a failure to appear by a defendant for service of sentence if the underlying offense is punishable by imprisonment for a term of 5 years or more . . . .”[56]  Arguably, if the failure to appear occurred after a plea bargain which limited the sentence to four years 364 days or less, the defendant would not be “punishable by imprisonment for a term of 5 years or more” for the offense, and the failure to appear would not constitute an aggravated felony (assuming the plea bargain was still enforceable after the failure to appear).  Since there is a risk, however, that the immigration or federal courts would construe this five-year provision as referring to the statutory maximum for the offense of which the defendant was convicted, it would be safest to avoid such a conviction.

 

                (e)  A conviction of failure to appear by defendant to answer a charge of a felony for which a sentence of two years’ imprisonment or more may be imposed” is an aggravated felony.[57]  It is possible that under recent United States Supreme Court authority, the maximum sentence that may constitutionally be imposed may be less than one year. See § 19.66, infra.

 

                (f)  A noncitizen can avoid the “inadmissibility at entry” ground of deportation if the Petty Offense Exception applies to excuse inadmissibility based on conviction or admission of one crime involving moral turpitude. [58]  If the maximum possible sentence that could be imposed for a particular CMT conviction is one year or less, and the two other POE requirements are also met, then the conviction qualifies for the Petty Offense Exception to inadmissibility for one conviction of a crime involving moral turpitude.  See § 20.29, infra.

 

                (3)  A conviction of certain offenses can trigger deportation only if it constitutes a felony conviction:

 

                (a)  If a conviction is a misdemeanor, rather than a felony, it cannot qualify under 18 U.S.C. § 16(b) as an aggravated felony crime of violence.  See § 19.42, infra.[59]

 

                (b)  If a state conviction for possession of a controlled substance is a misdemeanor, rather than a felony, it cannot qualify as an aggravated felony under Prong I of INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B) as an illicit trafficking offense.  See § 19.57, infra. [60]

 

                (4)  A conviction of certain minor offenses is not considered to be a conviction for a crime, and thus cannot trigger deportation under any ground of deportation that requires a conviction.  See § § 7.24, 10.93, supra.

 

                (5)  Certain offenses can become aggravated felonies if a loss in excess of $10,000 occurred, which can perhaps be proven by the sentence or judgment imposing an order of restitution.  See § 19.74, infra.

[51] INA § 212(a)(2)(A)(ii)(II), 8 U.S.C. § 1182(a)(2)(A)(ii)(II).

[52] INA § 212(a)(2)(B), 8 U.S.C. § 1182(a)(2)(B).

[53] INA § 101(a)(43)(J), 8 U.S.C. § 1101(a)(43)(J).

[54] Ibid.

[55] INA § 101(a)(43)(Q), 8 U.S.C. § 1101(a)(43)(Q).

[56] Ibid.

[57] INA § 101(a)(43)(T), 8 U.S.C. § 1101(a)(43)(T).

[58] INA § 212(a)(2)(A)(ii)(II), 8 U.S.C. § 1182(a)(2)(A)(ii)(II).

[59] INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F).

[60] INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B).