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Aggravated Felonies: The Failure To Distinguish Minor From Major Criminal Convictions

– Posted in: Immigration Law, Policy & Politics | Deportation And Detention

As a San Diego immigration lawyer, I have seen how criminal convictions can shatter the dreams and hopes of immigrant families.

Many times the criminal offenses were minor, non-violent offenses.

Under immigration law, even such low level wrongdoings can result in deportation, the harshest of immigration punishments.

When criminal offenses are deemed minor under state law, they are classified as misdemeanors. Most immigrant defendants assume such convictions will not bar them from living in the United States.

Their perceptions are not unreasonable.

Yet, under immigration law, many of these convictions are considered immigration felonies.

The term used by immigration courts is aggravated felonies. In short, this terminology lumps together major and minor state convictions into a “one-size fits all” automatic deportation scheme.

In other words, immigration aggravated felonies are absolute.

One strike, you’re out.

Fighting The Immigration Consequences Of Criminal Convictions

There are two large problems with fighting criminal convictions at immigration trials.

One, Congress stripped away a provision allowing lawful permanent residents to show proof of rehabilitation.  This rule was based on a belief that no one is morally perfect.  Second chances were possible. Not any longer.

Two, Congress tightened the noose on particular offenses.  Various crimes, some minor and non-violent, were turned into aggravated felonies.  Aggravated felonies, in essence, is a code word for automatic deportations.

At immigration court hearings, judges cannot weigh whether specific crimes are major or minor.

In such cases, they have no discretion to determine if an immigrant, despite deep family roots, commendable community service, and a state jail term of three days, the wrong action, should be allowed to remain in the U.S.

As a result, deportation defense involving immigrants with criminal records has become more difficult over the past 10 years. Quite often, the only route to a successful fight requires filing multiple immigration appeals.

Distinguishing Criminal Convictions At Immmigration Court

Last week, the highest court in the country, the U.S. Supreme Court, finally took a long look at these issues.

In one case, Padilla v. Kentucky, Justice Stevens noted, “The drastic measure of deportation or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes.”  The Court ruled that given this situation, before immigrants plead guilty, criminal defense attorneys need to inform them about the high risk of deportation.

In the second case, Carachuri-Rosendo v. Holder, the Court did not make a decision.

But Justice Ginsburg called the result, a deportation based on two misdemeanor convictions, absurd. The first conviction was for possession of less than two ounces of marijuana.  The second was a conviction for possession of an anti-anxiety drug, Xanax, less than a year after the first conviction.

Within the next few weeks, the Supreme Court will make a decision in the second case. This decision may also have a major impact on the cases of many, many immigrants.

Writing for the Huffington Post, a former federal judge, H. Lee Sarokin, summarized the Supreme Court’s primary concerns in these cases:

“Many of these persons facing deportation have lived in this country for years, for many — virtually their entire lives.  They have substantial ties to the community.  Deportation for them is often more severe than any prison term.”

A Fairer Solution For Immigrants And Their Families

Having served as an immigration attorney for almost two decades, I have helped many immigrants who cannot understand how a minor offense 40 years ago can be more important than all the good they have done since that mistake.

Once their anger, sadness, and depression subsides, they grasp the lunacy of our immigration defense system.

Judge Sarokin knows the solution:

“We must distinguish between the criminal and the minor offender…”

I agree with Judge Sarokin.

Hopefully, the Supreme Court will begin the process of separating major from minor crimes.  This would allow those who have committed minor offenses a chance to prove at their immigration deportation hearings they deserve to remain here.

An aggravated felony, after all, should be aggravated.

Isn’t this a fairer way to treat immigrants?

By Carlos Batara, Immigration Law, Policy, And Politics