In 1996, two immigration bills targeting non-citizens (“aliens”) convicted of certain crimes were enacted. These legislative amendments to the Immigration and Nationality Act (“INA”) were the Anti-terrorist and Effective Death Penalty Act of 1996 (“AEDPA”) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRAIRA”).
These two provisions operate to significantly restrict the discretion that immigration judges previously had to provide some form of relief (remedies) from what otherwise is an imminent deportation as a direct consequence from the noncitizen's unlawful presence in the United States. But more specific to this article—both AEDPA and IIRAIRA—significantly curtailed the authority that the federal courts had to review deportation (or removal) orders based on criminal convictions before the enactment of these 1996 legislative amendments.
For example, the 1996 IIRAIRA laws limited the availability of relief for non-citizens that have been convicted of certain specified crimes (both, misdemeanors as well as felonies) from obtaining relief from deportation. Therefore, where a noncitizen in the past had the opportunity available to her to apply to an immigration judge to allow her to remain in the United States despite the stated conviction if she could convince the judge that she deserved a second chance, that authority was substantially eliminated through the amendments in the 1996 legislative enactments.
In addition, the 1996 IIRAIRA laws diminished the availability that noncitizens without any criminal record had enjoyed for decades of obtaining direct immigration benefits such as permanent residence, naturalization, or permission to return to the United States by making the availability of those benefits substantially more difficult to acquire.
Then in 1999, the Board of Immigration Appeals (“BIA”) overruled 50 years of precedents when it held that an expungement of a criminal conviction (a form of clearing one's criminal record upon full compliance with all the conditions imposed by a criminal court system) will no longer eliminate the immigration consequences of its judgment of conviction. Matter of Roldan, Int. Dec. 3377, (BIA 1999).
To give an example for better understanding, a noncitizen who had been convicted in state criminal court for a minor offense related to theft could apply to the same court after completion of the sentence and probation, payment of fines, and no further violations, for an order "expunging" the criminal conviction—setting it aside and vacating the record and the legacy Immigration and Naturalization Service would accept the expunged record as evidence that it could not use to deport that noncitizen as a result of having been convicted of that offense.
Then comes the 1999 decision referenced above from the Board of Immigration Appeals and determined that henceforth those expungements will no longer be effective to preclude the federal government from deporting the noncitizen convicted of the minor theft offense even though the state court later vacated the conviction and entered a dismissal on the noncitizens's record.
But there is more. The 1996 legislation also expanded the statutory definition of “aggravated felonies” from a handful number of offenses to several dozens, making it the more important for attorneys defending non-citizens in state or federal criminal proceedings to become aware of the “fatal” immigration consequences directly resulting from many criminal convictions by plea bargains.
Notwithstanding these serious adverse immigration consequences, convictions of non-citizens throughout the United States continue to occur as a result of "plea bargains" because in part, the criminal defense attorney is not aware that upon completion of a state or federal criminal sentence, the United States Immigration and Customs Enforcement (“ICE”) will be apprehending the defendant to commence their deportation or removal to their native countries.
Every day, thousands of non-citizens charged with criminal offenses throughout the nation, enter into plea bargains because they are assured of a shorter custody sentence, and do so, totally oblivious that upon the completion of the shorter state custody sentence, they will likely be in federal custody for two, three or even more years awaiting a final order on their deportation.
For these reasons, it is extremely important that before a non-citizen enters into a plea bargain on a state or federal criminal charge, he or she consults an immigration specialist to determine the actual immigration consequences directly resulting from such a plea ”bargain”.
Often, this can be achieved by requesting on behalf of the non-citizen defendant, that criminal defense counsel communicate with an immigration attorney who specializes in deportation matters for an opinion on the potential immigration consequences that a particular conviction may have.
Failure to do so, will be severely costly to the alien and his or her family not only in terms of financial costs but in the significant and frequently devastating loss of the privilege to live in the United States.