Criminal Defense of Immigrants

(D)  Inapplicability of Ex Post Facto Doctrine in Immigration Cases.  Unfortunately, immigration laws are considered civil in character, rather than criminal, and the federal Ex Post Facto Clauses therefore do not apply.[247]  An aggravated felony can be used to trigger deportation, even though the conviction occurred prior to the creation of the deportation ground.[248]  Congress is free to make new immigration penalties apply to previous convictions so long as it clearly expresses its desire to do so.  This possibility of grave unfairness means criminal defense lawyers must do their best to protect the client against future adverse changes in the law, since there is no constitutional protection against retroactively penalizing defendants for prior convictions by imposing new immigration penalties that were not in existence on the date the prior conviction was committed.  One district court may disagree.[249]

[247] Guaylupo-Moya v. Gonzalez, 423 F.3d 121 (2d Cir. Sept. 12, 2005) (aggravated felony definition retroactive; ex post facto clause does not apply to civil deportation proceedings); Alvarez-Barajas v. Gonzales, 418 F.3d 1050 (9th Cir. Aug. 11, 2005) (retroactive application of aggravated felony definition proper); Cordes v. Gonzales, 421 F.3d 889 (9th Cir. Aug. 24, 2005) (retroactive application of aggravated felony definition is supported by a rational basis and does not violate the Due Process Clause of the Constitution).  One federal district court in New York has questioned whether principles of international law require that the date of the offense, rather than the date of plea, is controlling for non-retroactivity purposes.  The same court also suggested that circuit court decisions allowing § 212(c) relief only where the conviction pre-dated the 1996 Act were wrongly decided under principles of ex post facto analysis, stating that “it defies common experience to characterize deportation of an alien such as petitioner as anything other than punishment for his crimes.” Beharry v. Reno, 183 F.Supp.2d 584 (E.D.N.Y. 2002), reversed, 329 F.3d 51 (2d Cir. May 1, 2003).

[248] Gelman v. Ashcroft, 372 F.3d 495 (2d Cir. June 17, 2004) (aggravated felony conviction occurring prior to effective date of statute creating ground of deportation could be used to deport).

[249] Beharry v. Reno, 183 F.Supp.2d 584 (E.D.N.Y. 2002), reversed, 329 F.3d 51 (2d Cir. May 1, 2003).