Criminal Penalties

There are numerous unresolved issues currently being studied/litigated/etc. which resulted from enactment of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA).

Suffice it to say, any alien charged with a crime could be facing serious, if not disastrous immigration consequences should he/she be convicted, plead guilty, plead nolo contendre or even if adjudication of guilt, or imposition of sentence is deferred.

NEGOTIATED PLEAS

On September 13, 1996, the Attorney General published in the Federal Register a provision that recognized that the U.S. Immigration and Naturalization Service ("INS") would not be bound by any pleas or agreements negotiated by a U.S. Attorney's Office that affect immigration matters, unless the U.S. Attorney received authorization from the INS Commissioner or the INS Commissioner's delegate and the authorization is in writing and attached to the agreement.

AGGRAVATED FELONIES

IIRAIRA greatly expanded the definition of "aggravated felony". Immigrants convicted of a crime defined by immigration law as an "aggravated felony" are deportable. In addition, immigrants convicted of an aggravated felony are not eligible for relief from deportation [see "212(c) Relief" below]. When the concept of aggravated felony was first introduced in 1988, only the crimes of murder, drug trafficking and firearms trafficking constituted aggravated felonies. Since that time, however, the definition of aggravated felony has been significantly expanded. Under IIRAIRA, crimes as minor as shoplifting now constitute aggravated felonies. Furthermore, the new expanded definition is retroactive. Thus, a legal immigrant today may be put into deportation proceedings for an offense he or she committed 25 years ago, even if the crime was not then defined as an aggravated felony (and therefore was not then a deportable offense), and the immigrant at that time was punished in the criminal law system. Furthermore, immigrants who 25 years ago committed aggravated felonies now have no relief from deportation (see "212(c) Relief" below).

"212(c)" RELIEF

IIRAIRA completely bars anyone who has been convicted of an aggravated felony from applying for a discretionary form of relief from deportation known as the "212(c)" waiver. (This relief was formerly contained in Section 212(c) of the Immigration and Nationality Act (INA). It is now contained in Section 240A(a) of the INA as amended by IIRAIRA.) This section provides for a form of relief from deportation for long term lawful permanent residents who have committed a crime. In order to be eligible to apply for "212(c)" relief, the applicant has to show that he or she has been a lawful permanent resident for at least seven years, has extensive family ties in the U.S., served a sentence of less than five years, has been rehabilitated and has no other criminal record. If the applicant can establish these factors, the immigration judge, in his or her discretion, can decide not to deport the applicant. However, IIRAIRA completely bars anyone who has been convicted of an aggravated felony (as defined under IIRAIRA) from even applying for "212(c)" relief.


CITIZEN GROUP FORMED TO FIGHT AGAINST HARSH AEDPA/IIRAIRA PROVISIONS AFFECTING CRIMINAL ALIENS:

Laurie Kozuba, a U.S. citizen married to a Canadian national LPR, has organized a group called Citizens and Immigrants for Equal Justice (CIEJ). CIEJ is a coalition of citizen and resident alien family members of immigrants adversely affected by AEDPA and IIRAIRA. Mrs. Kozuba's husband was granted relief from deportation under INA ยง 212(c) in 1993 but the INS appealed the grant. Unfortunately, his case was pending at the time AEDPA was enacted and the 212(c) grant was overturned. Laurie Kozuba is collecting stories of others in similar circumstances and is lobbying members of Congress to change the harsher provisions of the new laws affecting long-time permanent residents who are truly rehabilitated. CIEJ can be contacted at the following address and number:


CIEJ
Laurie Kozuba
3701 Hogan Drive
Mesquite, TX 75150
Telephone: 972/279-4168
E-mail: VARIE18187@aol.com






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G. Wellington Smith, P.C.
1600 Nueces St.,
Austin, TX 78701

Phone: (512) 476-7163
Fax: (512) 476-3869