In last month’s article, I discussed how the immigration authorities define an aggravated felony and the disastrous impact such a conviction can have on permanent resident aliens. In this month’s article, we will look at the impact of INS. vs. St. Cyr.

To briefly state the facts of this case: St. Cyr was a Haitian immigrant, who was admitted to the U.S. in 1986. In March of 1996, he plead guilty to selling a controlled substance in violation of Connecticut law. The enactment of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in 1996, and made effective April 24, 1996, made aliens deportable for an expanded list of aggravated felony convictions. The Act went further by denying resident aliens any opportunity for habeas corpus federal court review and by way of the Anti-Terrorism and Death Penalty Act (AEDPA) section 440 (d), eliminated section 212 (c) waiver of inadmissibility relief for pleas and guilty verdicts entered into prior to and after the effective date of the IIRIRA. This meant that the government could detain a resident alien for conviction of an aggravated felony and that alien could not never go to federal court on a writ of habeas corpus to seek relief.

The U.S. Supreme Court, ruled that resident aliens were entitled to habeas corpus relief in federal court, after all other judicial relief had been exhausted. This was a profound victory for immigrants’ rights activists, for it ensured that aliens were protected under the constitution and protected their right to seek redress in federal court for any unlawful detainment. The Court further ruled that Congress’ Act of stripping 212 (c) relief from aggravated felony defendants, was not retroactive. This meant that individuals who entered into guilty pleas or plea bargain agreements prior to April 24, 1996, were entitled to file for a 212 (c) waiver of inadmissibility. In order to qualify for such a waiver, an alien with an aggravated felony conviction, had to show seven years continuous presence in the United States, and also show that there would be extreme hardship to his family if he was removed from the country.

As I stated in last month’s article, a state court deferred adjudication, is a conviction for immigration purposes. Please note that as long as the sentence on the deferred adjudication is less then 12 months, this is not an aggravated felony. This is of course assuming that the crime is not murder, rape or sexual abuse of a minor, drug trafficking, or money laudering. These crimes are per se aggravated felonies, regardless of any deferred adjudication or probation for less than 12 months.

Crimes of violence where a sentence of one year or more is imposed is an aggravated felony. What constitutes a crime of violence varies from state to state. As recent as 2 years ago, the Board of Immigration Appeals, ruled that a perjury conviction, was an aggravated felony.

Individuals convicted of aggravated felonies after November 29, 1990 are ineligible for (1) Voluntary departure (2) Establishment of good moral character (3) Establishment of eligibility for naturalization (4) suspension of deportation or registry (5) Asylum (6) Withholding of removal under INA section 241 (b)(3). It then becomes vitally important that a defendant facing removal proceedings for an aggravated felony, must first challenge the government’s position that the underlying crime is an aggravated felony. To do this would require the retaining of competent counsel expert in criminal immigration proceedings.

It is advisable that resident permanent aliens, who have met the 5 year physical presence requirement in the U.S. should go ahead and file their application for naturalization to become a U.S. citizen to avoid any of the immigration consequences associated with aggravated felonies discussed in this article.

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Sean Keane-Dawes, is a licensed to practice law in Massachusetts, New Jersey and Texas. His principal office is in Texas at 222 Pat Booker Rd, Suite 136, Universal City, TX 78148. For more information on immigration topics, please visit his website at www.skdlaw.com or e-mail at [email protected].