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There is no question, however, that immigration issues will remain in the forefront of our national policy debates.
Deportation Factors and Crimes Involving Moral Turpitude
Research indicates that since the late 1980s, Congress had been tightening the substantive provisions of the immigration laws, to make it far less likely that a convicted criminal alien can find a way to be relieved of expulsion. For many years the basic statutory pattern was that a crime involving moral turpitude rendered a person deportable, if it was committed less than five years after the person's entry and resulted in a sentence of one year or more confinement. A later-committed crime or one that drew a lighter sentence did not result in deportation. If the person committed two such crimes that were not part of a single criminal scheme, they could render the person deportable no matter when they were committed. A drug offense or a firearms possession offense ordinarily made a person deportable whenever it was committed.
The Anti-Drug Abuse Act of 1988 added the concept of an aggravated felony to the immigration laws. A person found guilty of an aggravated felony committed at any time would be deportable. Until 1994, the definition of an aggravated felony included only murder, drug trafficking, and firearms trafficking, plus conspiracy or attempt to commit those offenses. In the years that followed, the definition of an aggravated felony expanded. As a result, its' impact on the immigration laws became more severe since the rule remained that commission of an aggravated felony made the person deportable, no matter how many years of lawful residence the person may have accrued earlier. Congress also began to use this widening list of aggravated felonies as a tool to cut back on discretionary relief from deportation for criminal aliens.
Cancellation of removal was a form of relief that evolved to provide protection primarily to persons convicted of criminal offenses who had been lawful permanent residents for seven years or more. If the person met the basic threshold requirements, then wide discretion was accorded to the immigration judge to decide whether the person deserved to escape removal, despite the crime. This provision provided a necessary safety valve to recognize the stakes that a lawful permanent resident had in the community, and to allow the immigration judge to determine that the criminal sanction was sufficient penalty for the crime, a penalty that should not be compounded by deportation.
Cancellation of removal was very flexible, because any alien, no matter how serious the crime, could be considered for the benefit. The statute provided no clear standards for exercise of this discretion, and as a result, patterns could vary widely among immigration judges, and INS appeals brought only limited uniformity.
In 1990, the aggravated felony concept was amended to read that aggravated felons sentenced to five years or more incarceration were ineligible to receive cancellation-type relief. This change carried a limited impact initially because of the narrow definition of aggravated felony. However, as indicated in the Legislative History above, the impact widened considerably with legislative changes in 1994 and 1996. In 1994, the definition of aggravated felony was expanded to include additional serious offenses, including racketeering, alien smuggling for commercial advantage, child pornography, peonage, fraud offenses involving losses of over $200,000, and crimes of violence or theft offenses drawing a 5-year sentence. As a result, a conviction of one of these offenses would render the person deportable whenever it was committed, and cancellation relief would be barred if the sentence was greater than five years. In 1996 the aggravated felony definition was again greatly expanded, and this time its impact was made even more sweeping. New offenses were added to the list, and minimum thresholds required were substantially reduced.
Drawing the Line in Cases involving Moral Turpitude
As a result of the legislation, crimes involving moral turpitude, which rendered an individual deportable, essentially now included every possible offense. Cancellation relief is now wholly unavailable to anyone with an aggravated felony conviction. Asylum and withholding of removal, since 1990, have been likewise barred to aggravated felons. Withholding is now possible for an aggravated felon if the sentence was for less than five years, although immigration judges retain discretion to find that a lesser offense is nonetheless a particularly serious crime barring the criminal from refugee protections. The broadening of the definition of an aggravated felony has raised many questions as to where the line should be drawn involving crimes of moral turpitude. As a result of the broadening, practically any alien who commits a nontrivial crime, is subject to automatic expulsion. This is especially true if the crime fits one of the 21 paragraphs of the new definition of an aggravated felony. This result ensues even if the alien has been a lawful permanent resident since childhood, the crime and punishment took place decades ago, and he otherwise has a completely clean record.
This broadened definition of aggravated felony in immigration law also places a restriction on judicial review, because no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of virtually any criminal conviction. This sweeping restriction stands in sharp tension with the U.S. constitutional guarantee of habeas corpus to test the legality or constitutionality of a person's detention, because all aliens will have to be deprived of their liberty at some point before involuntary expulsion. Just how wide a range of issues is open to court review when the alien petitions for habeas corpus is now the subject of extensive litigation in federal courts. As a result, the number of deportable criminal aliens in the United States has greatly increased.
Legal critics and researchers have indicated that in the years between 1996 and 2001, the immigration system bought into the severity revolution occurring within the criminal justice system. Some describe it as the criminalization of immigration law, whereas others describe it as a convergence between the criminal justice and deportation systems. Under either characterization, the interaction of the two systems produced outcomes that were unprecedented, and even unintentional at times, in their harshness. Research indicates that criminal sentencing enhancements for past offenses coalesced with immigration law's enhanced aggravated felony definition now mandate the incarceration and removal of noncitizens with mere misdemeanor convictions on their criminal records.
This is problematic because currently, a single misdemeanor conviction of one year or more for a crime as minor as shoplifting subjects a non-U.S. citizen to detention and deportation. This expansion of the types of crimes mandating detention and deportation applies to all categories of noncitizens, including lawful permanent residents.
Furthermore, it is also applied retroactively, so that noncitizens convicted of crimes that would not have rendered them deportable before 1996 suddenly faced deportation after passage of the IIRIRA. After the events of September 11th, 2001, these measures were supplemented through the issuance of presidential directives, regulations, and policy initiatives undertaken to strengthen national security through stricter enforcement of immigration laws and greater coordination of governmental resources. Research indicates that these policies accelerated the criminalization of the immigration system.
In response to the 9/11 attacks, immigration officials and criminal law enforcement authorities took a zero-tolerance approach to non-compliance with immigration laws that disproportionately punished immigrant communities, targeting them for tough law enforcement measures only indirectly related to counterterrorism efforts.
Federal law enforcement officials have begun to work more closely with state and local law enforcement agents to police compliance with federal immigration laws. Asylum seekers are foreign nationals who seek to enter the United States based upon allegations of their persecution at the hands of the government of the country from which they are fleeing. Unlike refugees, they arrive without prior State Department clearance, but are traditionally treated more sympathetically because of their claims of persecution. However, under the new laws, this favorable treatment has ended; their motives for seeking asylum are now suspect.
Legal critics and theorists have indicated that the policies and initiatives discussed above are changes in immigration law and policy that draw upon the objectives, techniques, and discourses of a harshly punitive system of criminal justice to deal with noncitizens and the terrorist threat of 9/11. However, the broad category of what constitutes a crime involving moral turpitude is a continuing a process of convergence that began in the 1980s and 1990s during the crackdown on noncitizens with criminal convictions. Immigration authorities have employed the immigration system to apprehend, arrest, detain, and deport a wide variety of criminal aliens, without the need for constitutional guarantees of due process and free counsel for indigents that inure to aliens apprehended and detained through criminal law enforcement.
These explanations provide practical reasons for the convergence of criminal control and the use of immigration law to achieve it.
In recent years, sweeping changes to the law and unprecedented growth in the size and responsibilities of the INS have overwhelmed the agency, which has been severely criticized by the press, its customers, and Congress for ineffective management…[continue]
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