Crimes of Moral Turpitude

 

(A)  Mandatory Detention.  The 1996 IIRAIRA greatly expanded the number of inadmissible and deportable noncitizens subject to mandatory immigration detention prior to a final order of removal.  The IIRAIRA provides that the Attorney General shall mandatorily detain, except in very limited circumstances, noncitizens who are charged with being inadmissible or deportable under certain grounds related to crimes.[124]  The Attorney General must “take into custody,” and thereafter not release, a noncitizen inadmissible under grounds relating to moral turpitude, drug conviction, drug trafficking, prostitution, miscellaneous convictions, diplomatic immunity, and terrorist activities.[125]  The Attorney General must also “take into custody,” and thereafter not release, a noncitizen deportable under any of the following grounds:

 

(1)     conviction of one crime of moral turpitude committed within five years of last entry if a sentence to one year or more imprisonment was imposed,

(2)     conviction of two crimes of moral turpitude,

(3)     conviction of an aggravated felony,

(4)     conviction of a drug or firearms offense, or

(5)   conviction of miscellaneous crimes (e.g., sabotage, espionage), drug abuse/addiction, or terrorist activities.[126]

 

A noncitizen need not be charged with the ground of deportation that provides the basis for mandatory detention under INA § 236(c)(1) in order to be considered “deportable” on that ground.[127]

 

            A single CMT conviction or admission does not trigger mandatory detention for deportable or inadmissible noncitizens if it falls within the Petty Offense, Youthful Offender or Political Offense Exceptions to inadmissibility.  Additionally, conviction of a single CMT does not trigger mandatory detention for noncitizens subject to deportation where (a) the crime was not committed within five years of admission, and (b) a sentence of less than one year was imposed.[128]

 

Many criminal convictions do not fall into any of the categories that trigger inadmissibility or deportability.  See N. Tooby & J. Rollin, Safe Havens: How to Identify and Construct Non-Deportable Convictions (2005).  Additionally, post-conviction relief, such as executive pardons and vacating the conviction on a basis of legal validity, will work to avoid mandatory detention for most, if not all, types of criminal misconduct.  See Chapter 10, infra.[129]  Judicial Recommendations Against Deportation, granted by the sentencing judge prior to November 29, 1990, also avoid mandatory detention on the basis of CMT and aggravated felony convictions.  See § 10.13, infra.

 

If mandatory detention applies, the immigration court is not permitted to release the immigrant on bond, unless, as discussed below, a federal court orders a bond hearing.  Moreover, even if the immigration court finds that the noncitizen is not removable, if the DHS appeals that decision, the immigrant is subject to mandatory detention until the Board of Immigration Appeals decides the case, which may be a considerable time later.[130]

 

            If a noncitizen does not concede deportability, and can raise a nonfrivolous argument that his or her criminal disposition does not fall within a mandatory detention category, s/he remains entitled to a bond hearing and to release on reasonable bond[131] unless s/he is shown to be a flight risk or danger to the community.

 

[124] INA § 236(c)(1), 8 U.S.C. § 1226(c)(1).

[125] INA § § 236(c)(1)(A) and (D), 8 U.S.C. § § 1226(c)(1)(A) and (D).

[126] INA § § 236(c)(1)(B) and (C), 8 U.S.C. § § 1226(c)(1)(B) and (C).

[127] Matter of Kotliar, 24 I. & N. Dec. 124 (BIA 2007)

[128] Note that the CMT ground of deportability, INA § 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)(A)(i), only requires that the maximum possible sentence be one year or more.

[129] Including drug and firearms convictions, aggravated felony convictions, and other convictions, such as espionage, sabotage, treason, sedition, threats against the president or successors, selective service violations, trading with the enemy violations, violations of travel restrictions, or importing a noncitizen for immoral purposes.

[130] See N. Tooby & J. Rollin, Criminal Defense of Immigrants § 6.46 (4th Ed. 2007).

[131] Matter of Joseph, 22 I. & N. Dec. 799 (BIA 1999); Hmaidan v. Ashcroft, 258 F.Supp.2d 832 (N.D.Ill. Apr. 28, 2003) (Attorney General authorization to set conditions of release under INA § 241(a)(3), 8 U.S.C. § 1231(a)(3) includes authorization to set bond as a condition of release from immigration custody).