Thursday, February 25, 2010

Aggravated Felonies and Due Process

By Kathleen Lord-Black, U.S. Immigration Lawyer

“Due process” is a phrase found in the Fifth Amendment to the United States Constitution, and applies to actions of the federal government, including the treatment of aliens. In United States law, “due process” was adopted from the English Law concept of due process (also known as “due process of law”). It is the principle that requires a government to respect all of a person's legal rights when the government deprives the person of life, liberty, or property. Due process has also been frequently interpreted as a guarantee of fundamental fairness, justice, and liberty.

In the context of American immigration, immigration matters frequently involve issues of life and liberty. However, our immigration system lacks some of the most basic due process protections. Due process means that individuals are presumed innocent until proven guilty; that there is a right to a hearing before a judge; that there is right to counsel and to examine adverse evidence; that there is a right to appeal; and that there is right to seek release on bond. It means judges should be allowed to use discretion in considering cases on a case-by-case basis, and not be bound to mandatory results in every case.

Many of the basic elements of due process and fundamental fairness were abridged by our immigration laws in 1996. Laws ostensibly intended to preserve our way of life have resulted in the mandatory detention of many long-term permanent residents. Under these new laws, lawful permanent residents are being deported for offenses that were not deportable when committed. When Congress created an expanded definition of "aggravated felony," this made felons out of immigrants who had committed relatively minor nonviolent offenses, such as writing bad checks or shoplifting.

The history of the term “aggravated felony” as used in U.S. immigration law is a study of the decline of due process in our immigration laws.

The ADDA. The term "aggravated felony" first appeared in immigration law in 1988 under the piece of legislation known as the Anti-Drug Abuse Act of 1988 (ADAA). At that time, it simply created a separate ground of deportation for serious crimes such as murder, drug trafficking or illegal trafficking of firearms or destructive devices. ADAA did not impose any limitation on relief for aliens convicted of aggravated felonies.

IMMACT 90 . The passage of the Immigration Act of 1990 (IMMACT 90) had a profound effect on aliens convicted of aggravated felonies. IMMACT 90 limited the available discretionary relief from deportation/removal (e.g., the 212(c) waiver, suspension of deportation, voluntary departure, asylum, and withholding of deportation) for aliens convicted of aggravated felonies. Moreover, under IMMACT 90, the number of years of the sentence were factored into the definition of an aggravated felony, thereby lengthening the list of aggravated felonies.

INTCA. Four years later, the definition of “aggravated felony” was again revised with the advent of Immigration and Nationality Technical Correction Act of 1994 (INTCA). INTCA expanded aggravated felonies to include common, less serious crimes such as fraud, burglary, theft, and other nonviolent crimes.

IIRAIRA and AEDPA. In 1996, dramatic and sweeping changes to immigration law were ushered onto the scene by two acts of legislation known as the Illegal Immigrant Reform and Immigrant Responsibility Act of 1996, "IIRAIRA" and the Anti-Terrorism and Effective Death Penalty Act of 1996, "AEDPA."

Under these two new laws, people convicted of minor offenses, which are now defined as aggravated felonies under immigration law, face mandatory detention; removal from the U.S. without a hearing before an immigration judge; or the inability to offer any mitigating factors in their defense.

When an alien is deemed an aggravated felon, he/she is barred from the U.S. for twenty years and is ineligible for virtually any form of relief. Therefore, it is very important, when a defense attorney is determining an appropriate criminal plea or defending a criminal alien in removal proceedings, to be on guard for the term “aggravated felony”.

The price of this abridgment to due process is paid for by the lawful permanent residents, their U.S. citizen children, and their spouses and parents whose families are split apart, whose homes are broken, and whose lives are forever altered.

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About the author: Kathleen Lord-Black is a U.S. immigration lawyer.  Her offices are located in Vancouver, British Columbia. She has served as Immigration Consultant for the San Francisco Public Defenders Office, 2005 Chair of the Immigration Section of the Barristers Club of the Bar Association of San Francisco, and former Congressional liaison for U.S. Representative Farr. Ms. Lord-Black is an active member of the American Immigration Lawyers Association and the American Civil Liberties Union. Her articles regularly appear in the Bay Area Arabic-language newspaper, Alra’i Alarabi. Ms. Lord-Black can be reached via email at kathleen@kathleenlord.com; and by telephone at (360) 329-2436 (U.S.) and (604) 352-2006 (Canada). www.immigration-etats-unis.com