Criminal Defense of Immigrants



 
 

§ 7.25 (C)

 
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(C)  Some Immigration Consequences Do Not List Foreign Convictions as a Trigger.  Some immigration consequences do not list foreign convictions among the jurisdictions whose convictions will trigger them. [106]  Congress certainly knew how to provide for the effects of foreign convictions if it wished to do so, and it did not do so for certain grounds of deportation.[107]

 

                The United States Supreme Court held that 18 U.S.C. § 922(g)(1), which prohibits a person who has been “convicted in any court” from possessing a firearm, encompasses only domestic, not foreign, convictions.[108]  This suggests an argument that Congress excluded foreign convictions from those convictions which trigger deportation, except where it expressly provided otherwise.  Foreign convictions falling within the aggravated felony definition, for example, were expressly listed by Congress as constituting aggravated felonies, but only if the term of imprisonment was completed within the previous 15 years.[109]  Foreign convictions not meeting this test do not fall within the definition.

 

Moreover, the U.S. Sentencing Guidelines define “felony” to include “any federal, state or local offense punishable by imprisonment for a term exceeding one year.”[110]  As the Supreme Court pointed out, this does not include foreign convictions.  There is an argument that no foreign conviction can trigger deportability unless Congress specifically said so. Congress certainly knew how to provide for the effects of foreign convictions if it wished to do so. [111]  For example, immigration law expressly provides that a noncitizen convicted of or who admits committing a violation of state law, federal law, or any law or regulation of “a foreign country relating to a controlled substance . . . is inadmissible.”[112] 

On the other hand, the Controlled Substances Act defines a “felony drug offense” as “an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country.”[113]  The domestic violence conviction ground of deportation covers a victim who “is protected from that individual’s acts under the domestic or family violence laws of the United States or any State, Indian tribal government, or unit of local government.”[114]  A conviction under foreign law is not listed here, and is therefore not included as a ground of deportation.  The unlawful voting deportation ground lists only voting in violation of federal, state, or local law, so Congress in effect excluded voting in violation of foreign law from this ground of deportation.[115]  Noncitizens are deportable who have, outside the United States, committed, ordered, incited, assisted, or otherwise participated in the commission of, under color of law of any foreign nation, any extrajudicial killing.[116] 

 

In addition, a conviction must generally have occurred “after the date of admission” in order to trigger deportation. The statute defining grounds of deportation,[117] provides that noncitizens “admitted to the United States” shall be deportable if they fall within one or more specified classes of deportable noncitizens.[118]  Many specific statutory grounds of deportation also expressly require a conviction after admission to the United States.[119]  Because a deportable conviction must occur after admission to the United States, there is every reason to believe that Congress was considering convictions suffered within the United States when it defined the conviction-based grounds of deportation. Because of the serious consequences of deportation, this ambiguous legislation must be construed in favor of the noncitizen.[120]  This argument would not apply with respect to grounds of inadmissibility.


[106] See Small v. United States, 544 U.S. 385 (Apr. 26, 2005) (18 U.S.C. § 922(g)(1), which prohibits a person who has been “convicted in any court” from possessing a firearm, encompasses only domestic, not foreign, convictions), abrogating United States v. Atkins, 872 F.2d 94, 96 (4th Cir. 1989), and United States v. Winson, 793 F.2d 754, 757-759 (6th Cir. 1986).

[107] For example, Congress recently provided, with respect to a specific new statute, that “The term `criminal offense’ means a State, local, tribal, foreign, or military offense (to the extent specified by the Secretary of Defense under section 115(a)(8)(C)(i) of Public Law 105-119 (10 U.S.C. 951 note)) or other criminal offense.” The Adam Walsh Child Protection and Safety Act of 2006, H.R. 4472, Pub. L. 109-248, § 111(6) (July 27, 2006).  See N. Tooby & J. Rollin, Safe Havens: How To Identify And Construct Non-Deportable Convictions § 4.35(B) (2005).

[108] Small v. United States, 544 U.S. 385 (April 26, 2005).

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

[110] USSG § 2L1.2, Application Note 1.

[111] See N. Tooby & J. Rollin, Safe Havens: How To Identify And Construct Non-Deportable Convictions § 4.35(B) (2005).

[112] INA § 212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II) (“[A]ny alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of -- (II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21), . . . is inadmissible.”).

[113] 21 U.S.C. § 802(44).  See N. Tooby & J. Rollin, Safe Havens: How To Identify And Construct Non-Deportable Convictions § 7.22(E) (2005).

[114] INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i).

[115] See N. Tooby & J. Rollin, Safe Havens: How To Identify And Construct Non-Deportable Convictions  § § 7.16, 7.192 (2005).

[116] Torture Victim Protection Act of 1991, § 3(a), 28 U.S.C. § 1350 note. INA § 237(a)(4)(D), 8 U.S.C. § 1237(a)(4)(D), referring to INA § 212(a)(3)(E)(iii)(II).

[117] INA § 237(a), 8 U.S.C. § 1227(a).

[118] INA § 237(a)(2)(A)(i)(I), 8 U.S.C. § 1227(a)(2)(A)(i)(I) (conviction of crime of moral turpitude); INA § 237(a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(A)(ii) (multiple convictions of crimes of moral turpitude “at any time after admission”); INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii) (aggravated felony “at any time after admission”); INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i) (controlled substances conviction “at any time after admission”); INA § 237(a)(2)(B)(ii), 8 U.S.C. § 1227(a)(2)(B)(ii) (drug abuser or addict who is or “at any time after admission has been” convicted); INA § 237(a)(2)(C), 8 U.S.C. § 1227(a)(2)(C) (firearms conviction).

[119] E.g., INA § 237(a)(2)(A)(i)(I), 8 U.S.C. § 1227(a)(2)(A)(i)(I) (conviction of crime of moral turpitude); INA § 237(a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(A)(ii) (multiple convictions of crimes of moral turpitude “at any time after admission”); INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii) (aggravated felony “at any time after admission”); INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i) (controlled substances conviction “at any time after admission”); INA § 237(a)(2)(B)(ii), 8 U.S.C. § 1227(a)(2)(B)(ii) (drug abuser or addict who is or “at any time after admission has been” convicted); INA § 237(a)(2)(C), 8 U.S.C. § 1227(a)(2)(C)(firearms conviction “at any time after admission”); INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i) (domestic violence conviction “at any time after admission”).

[120] See § 16.38, infra.

Updates

 

FOREIGN CONVICTIONS - SPECIFICALLY LISTED IN FEDERAL LEGISLATION
Burgess v. United States, ___ U.S. ___, ___,(Apr. 16, 2008) ("Notably, [21 U.S.C.] 802(44) includes foreign offenses punishable by more than one year, while 802(13) includes only federal and state offenses. Incorporation of 802(13) into 841(b)(1)(A) would exclude enhancement based on a foreign offense, notwithstanding the express inclusion of foreign offenses in 802(44)'s definition of "felony drug offense." Furthermore, some States and many foreign jurisdictions do not label offenses as felonies or misdemeanors.").
FOREIGN CONVICTIONS - SPECIFICALLY LISTED IN FEDERAL LEGISLATION
Burgess v. United States, ___ U.S. ___, ___,(Apr. 16, 2008) ("Notably, [21 U.S.C.] 802(44) includes foreign offenses punishable by more than one year, while 802(13) includes only federal and state offenses. Incorporation of 802(13) into 841(b)(1)(A) would exclude enhancement based on a foreign offense, notwithstanding the express inclusion of foreign offenses in 802(44)'s definition of "felony drug offense." Furthermore, some States and many foreign jurisdictions do not label offenses as felonies or misdemeanors.").

Other

SAFE HAVEN - STATE REHABILITATIVE RELIEF - PRIOR FOREIGN CONVICTION DOES NOT DISQUALIFY DEFENDANT FROM FFOA TREATMENT
The Federal First Offender Act, 18 U.S.C. 3607(a)(1), does not permit an expungement if the defendant has prior to the commission of the current offense suffered a conviction under "Federal or State" law. This provision does not include foreign convictions as a disqualification for this relief.

 

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