Criminal Defense of Immigrants

In order to trigger a particular immigration consequence, such as deportation on account of an aggravated felony conviction, the conviction must have occurred after the effective date of the statute that attaches the specific immigration consequence to the aggravated felony conviction.  In general, after IIRAIRA, a conviction qualifies as an aggravated felony even if it was committed prior to the inclusion within the aggravated felony statute of the aggravated felony category in which it falls.  Counsel can argue that applying the aggravated felony definition statute retroactively to include a conviction occurring prior to its listing in the statute violates Due Process.  If the aggravated felony conviction is an element of a criminal offense, such as illegal re-entry, the Ex Post Facto clauses of the Constitution prohibit retroactive application of the definition to a conviction that was not listed as an aggravated felony on the date the illegal re-entry offense was committed.  Because immigration cases are civil, not criminal, the Ex Post Facto protection does not apply in immigration proceedings. See § 19.21(C), (D), infra.[217]

[217] See, e.g., United States v. Koziel, 954 F.2d 831, 834 (2d Cir. 1992) (ex post facto protections not applicable to deportation).