Criminal Defense of Immigrants

The Immigration Act of 1990 [108] added a provision to the aggravated felony definition to include foreign convictions “for which the term of imprisonment was completed within the previous 15 years.”[109]  The running of the 15 years does not stop for any reason.[110]  Therefore, this period continues to run, so when the date on which the noncitizen was released from custody on the foreign conviction reaches a point 15 years ago, the conviction instantly ceases to be an aggravated felony. 

                If no custody was imposed as a result of the conviction, the conviction cannot be considered an aggravated felony at all, because there was no “term of imprisonment” imposed, so no term was completed within the previous 15 years.  Decisions construing the concept of “release from custody” for purposes of the mandatory detention provision may be analogous.[111]  This mandatory detention provision applies upon release from physical custody,[112] and may have some bearing on this issue.

There are some limitations upon the recognition of foreign convictions for immigration purposes.  See § 7.25, supra.  There may be arguments that foreign convictions are not included in some other grounds of deportation or inadmissibility,[113] see § 7.25, supra, but they are specifically listed in the aggravated felony definition, and therefore qualifying foreign convictions constitute aggravated felonies.

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

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

[110] 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).

[111] 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 . . . .”).

[112] Matter of West, 22 I. & N. Dec. 1405 (BIA 2000). 

[113] 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).