REMOVAL OF PERMANENT RESIDENTS FOR DEPORTABLE OFFENSE
Since 09/11, the most significant upheaval of the U.S. government since the 1940’s occurred when President Bush signed into law, legislation that created the Department of Homeland Security.
The Immigration and Naturalization service became defunct, and was replaced with the Bureau of Immigration and Citizenship Enforcement. As a result of this change, immigration enforcement has become much stricter.
It is important to note, that this strict immigration enforcement, is due to 2 very important federal statutes signed into law by President Clinton: The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRA), and the Immigration Act of 1990.
The IIRA made conviction of an aggravated felony a deportable offense for permanent residents. An aggravated felony is defined as a crime, whether felony or misdemeanor, for which the sentence is for imprisonment of one year or more. The list of aggravated felonies are defined in the Immigration and Nationality Act (INA) Section 101(43), 8 U.S.C.S Sec 1101(a)(43): murder, rape or sexual abuse of a minor, drug trafficking, including possession with intent to deliver and conspiracy, money laudering, crimes of violence where a prison sentence of one year or more is imposed, theft offenses where a prison sentence of one year or more is imposed, fraud involving losses of $10,000 or more. It is important to note that someone who may be convicted of an aggravated felony under state law, may not be an aggravated deportable felony within the definition of Section 101(43).
Most first time offenders can be offered deferred adjudication in lieu of jail time or probation. Deferred adjudication is a plea bargain where the defendant agrees to pay court fines, costs, and or agree to attend educational programs set up by the county in exchange for jail time.
At the end of the period for deferred adjudication, the judge reviews the file to determine whether all the conditions of the program are satisfied. Once satisfied, the judge will release the defendant from the jurisdiction of the court and a conviction will not appear on the person’s record. Even though there is no conviction, the defendant is still subject to deportation because deferred adjudication is a “conviction” under 8 U.S.C.S Sec(A)(48)(A).
It is of extreme importance to retain an immigration attorney who knows the consequences of a criminal conviction when faced with a criminal charge. In my next article, I will discuss the case of INS vs. St. Cyr, and the impact it has had on immigration law.
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].