Seventh Circuit Criminal Handbook ß  341

ß  341 Deportation.

In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), an Act that broadened dramatically the number of immigrants whose criminal convictions now subject them to deportation. Moreover, the Act pinched judicial review of deportation for certain offenses virtually out of existence.

Specifically, 8 U.S.C. ß  1227(a)(2) provides a list of offenses for which an alien, if convicted, is deportable. These include crimes of moral turpitude committed within five or ten years of admission (depending on the resident status), where a sentence of one year or longer may be imposed, 8 U.S.C. ß  1227(a)(2)(A)(i)(I), (II), aggravated felonies, 8 U.S.C. ß  1227(a)(2)(A)(iii), and controlled substances offenses ''other than a single offense involving possession for one's own use of thirty grams or less of marijuana ... .'' 8 U.S.C. ß  1227(a)(2)(B)(i). It includes certain firearms offenses, 8 U.S.C. ß  1227 (a)(2)(C), crimes of domestic violence, stalking, child abuse, and violation of protective orders, 8 U.S.C. ß  1227(a)(2)(E)(i), (ii). In Flores-Leon v. United States, 272 F.3d 433, 439 (7th Cir. 2001) , the court held that amended definitions of deportable felonies do not violate the Ex Post Facto Clause, in part because deportation exacts a civil, rather than criminal penalty. See alsoGomez-Diaz v. Ashcroft, 324 F.3d 913, 916 (7th Cir. 2003) .

Other sections of the IIRIRA expand on these provisions. ''Aggravated felonies'' are defined in 8 U.S.C. ß  1101(a)(43) to include not only some obvious offenses (e.g., murder, rape, sexual abuse of a minor), but less obvious offenses, such as an offense that involves ''fraud or deceit in which the loss to the victim or victims exceeds $ 10,000.'' 8 U.S.C. ß  1101(a)(43)(M). They include crimes of violence and theft or burglary offenses where the term of imprisonment is at least a year, 8 U.S.C. ß  1101(a)(43)(F), (G), drug trafficking offenses, 8 U.S.C. ß  1101(a)(43)(B), and certain firearms offenses. 8 U.S.C. ß  1101(a)(43)(C). The prohibitions cover attempts and conspiracies to commit the underlying offenses. 8 U.S.C. ß  1101(a)(43)(U). The Act states elsewhere that periods of incarceration include the period of incarceration or confinement ordered by the court, regardless of any sentence suspension in whole or in part. 8 U.S.C. ß  1101(a)(48)(B).

Another section of the Act, at 8 U.S.C. ß  1252(a)(2)(C), provides that ''no court shall have jurisdiction to review any final order of removal against an alien who is removable'' based on his commission of a certain criminal offenses, including the aforementioned aggravated felonies, controlled substances offenses, and firearms offenses. This section is particularly significant because the IIRIRA repealed former ß  212(c) of the Immigration and Nationality Act, which had been interpreted to give the Attorney General discretion to waive deportation for a broad set of criminal offenses, many of which would have fallen, for instance, into the ''aggravated felony'' category. See generallyINS v. St. Cyr, 533 U.S 289 (2001) (but holding that repeal of ß  212(c) did not apply retroactively). That means that aliens who are subject to deportation will receive scant attention by either the Executive or the Judicial Branch, unless the alien raises a question of pure law. St. Cyr, 121 S. Ct. at 2284. The Seventh Circuit has also held that ß  1252(a)(2)(C) does not defeat the court's jurisdiction to at least determine whether jurisdiction exists, or to answer a challenge to deportability on constitutional grounds. See, e.g.,Bosede v. Ashcroft, 309 F.3d 441, 445 (7th Cir. 2002) . See alsoGomez-Diaz v. Ashcroft, 324 F.3d 913, 916 (7th Cir. 2003) (court has power to determine whether alien was convicted of an offense that justifies deportation).

In Demore v. Kim, 538 U.S. 510 (2003) , the Supreme Court upheld the constitutionality of Sec. 1226(c), which mandates detention during removal proceedings for a limited class of deportable aliens, including those convicted of aggravated felonies. But seeGonzalez v. O'Connell, 355 F.3d 1010, 1020 (7th Cir. 2004) (habeas relief may be available to detainee with good faith challenge to deportability).

As noted just above, INS v. St. Cyr held that the repeal of Sec. 212(c) did not apply retroactively. In United States v. Roque-Espinoza, 338 F.3d 724 (7th Cir. 2003) , the court would not allow the defendant to withdraw his guilty plea based on the intervening St. Cyr decision; the defendant argued he would have appealed the Immigration Judge's deportation order but had considered it fruitless at the time. The court ruled that he still should have pursued his administrative remedies, holding out St. Cyr himself as an example, and now he had waived them. But see Montenegro v. Ashcroft, 355 F.3d 1035, 1037 (7th Cir. 2004) (aliens who pled guilty before repeal believing they were eligible may still apply for Sec. 212(c) relief).

Aliens who pleaded guilty to an aggravated felony before the Antiterrorism and Effective Death Penalty Act's enactment may apply for relief under Sec. 212(c) of the Immigration and Nationality Act if they would have been eligible for that relief at the time of their pleas. But this exception does not apply to aliens who chose to go to trial; such aliens did not abandon any rights or admit guilt in reliance on continued eligibility for Sec. 212(c) relief. Montenegro v. Ashcroft, 355 F.3d 1035, 1037 (7th Cir. 2004). See new regulations. The final rule established procedures for lawful permanent residents with certain criminal convictions arising from plea agreements reached prior to a verdict at trial to apply for relief from deportation or removal pursuant to former section 212(c) of the Immigration and Nationality Act. The Executive Office for Immigration Review has decided to retain the distinction between ineligible aliens who were convicted after criminal trials, and those convicted through plea agreements. Section 212(c) Relief for Aliens With Certain Criminal Convictions Before April 1, 1997. This rule is effective starting October 28, 2004.

But in Ponnapula v. Ashcroft, 373 F.3d 480 (3rd Cir. 2004), noncitizens who affirmatively turned down plea agreements had a reliance interest in the potential availability of relief under Sec. 212(c) of the Immigration and Nationality Act, 8 U.S.C.S. ß 1182(c) (repealed 1996), the United States Court of Appeals for the Third Circuit holds that the repeal of Sec. 1182(c) by the Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L. No. 104-208, 110 Stat. 3009-546, is impermissibly retroactive with respect to such aliens. While this statement seems broad, it is faithful to St. Cyr, which painted with broad strokes in holding that relief under 8 U.S.C.S. Sec. 1182(c) remained available for aliens whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for Sec. 1182(c) relief at the time of the plea under the law then in effect.

Montenegro argued that he was denied due process because the Chicago IJ (Vinikoor) ordered him removed on the basis of a conviction that he was still challenging on appeal. At the time the IJ ordered Montenegro removed, he had two petitions still pending--a writ of certiorari in the United States Supreme Court and an appeal from the denial of his post-conviction petition in the Illinois Appellate Court--both of which were later denied.

Before the enactment of IIRIRA, the Supreme Court required that a deportation proceeding be based on a conviction that had sufficient "finality," see Pino v. Landon, 349 U.S. 901, 99 L. Ed. 1239, 75 S. Ct. 576 (1955); Will v. INS, 447 F.2d 529, 531 (7th Cir.1971), which the 7th circuit interpreted to mean that the alien no longer had any direct appeal pending, Mansoori v. INS, 32 F.3d 1020, 1024 (7th Cir. 1994).

IIRIRA, however, treats an alien as "convicted" once a court enters a formal judgment of guilt. See 8 U.S.C. ß 1101(a)(48)(A); Moosa v. INS, 171 F.3d 994, 1008-09 (5th Cir. 1999). IIRIRA eliminated the finality requirement for a conviction, set forth in Pino, even for aliens who were found guilty before April 1, 1997. See IIRIRA ß 322(c), Pub. L. No. 104-208, 110 Stat. 3009 (1996) ("The amendments made by subsection (a)[including the definition of "conviction"] shall apply to convictions and sentences entered before, on, or after the date of the enactment of this Act."); Moosa, 171 F.3d at 1009 ("There is no indication that the finality requirement imposed by Pino, and this court, prior to 1996, survives the new definition of 'conviction' found in IIRIRA ß 322(a)."); see also Griffiths v. INS, 243 F.3d 45, 50 (1st Cir. 2001). Under IIRIRA, therefore, Montenegro's conviction in April 1996 of an aggravated felony rendered him removable.

The IIRIRA left with the Attorney General some discretion to cancel deportation, but only for a very limited number of cases. Generally, the Attorney General may cancel deportation if the alien is a permanent resident of five years, has lived continuously in the country for seven years, and has not been convicted of an aggravated felony. 8 U.S.C. ß  1229b(a). He or she may cancel deportation of a nonpermanent resident who has been physically present in the United States for ten years, has been of good moral character, and has not been convicted of an aggravated felony, an offense of moral turpitude, or a controlled substance offense other than a single possession of less than thirty grams of marijuana for own use. 8 U.S.C. ß  1229b(b), and ß  1227(a)(2)(B)(i).

One other section of special note: the Act defines ''conviction'' to mean formal adjudications of guilt. However, a ''conviction'' also occurs where adjudication of guilt has been withheld and (1) the judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt; and (2) the judge ordered some form of ''punishment, penalty, or restraint on the alien's liberty ... .'' 8 U.S.C. ß  1101(a)(48)(A). That means deferred dispositions, such as ''410'' probation for first-time Illinois drug offenders, are considered ''convictions'' for purposes of immigration law. Gill v. Ashcroft, 335 F.3d 574 (7th Cir. 2003) .

In Taylor v. United States, 495 U.S. 575 (1990) , the Supreme Court, noting that offenses like ''burglary'' receive varying definitions among the states, created a generic definition of ''burglary offense'' for use under the Sentencing Guidelines. The Seventh Circuit approaches definitions under the IIRIRA the same way: for the sake of uniformity, it does not matter how the state labels the offense, but whether the offense falls under a generic label. The generic label applied to a burglary offense requires entering or remaining in a building or a structure; thus, burglary of a motor vehicle under Illinois law did not necessarily qualify as an aggravated felony. Solorzano-Patlan v. INS, 207 F.3d 869, 875 (7th Cir. 2000) . But seeUnited States v. Alvarez-Martinez, 286 F.3d 470, 475 (7th Cir. 2002) (act of prying open window of locked car constituted use of physical force against property of another and was hence a ''crime of violence'' under 18 U.S.C. ß  16(a)) . Note that ß  16(a) defines crimes of violence to include crimes against ''the person or property of another,'' unlike the Armed Career Criminal Act ( 18 U.S.C. ß  924(e) ) and Sentencing Guideline 4B1.2, which limit the definition to crimes against the person.

On the other hand, in Hernandez-Mancilla v. INS, 246 F.3d 1002 (7th Cir. 2001) , the Seventh Circuit held that defendant's conviction for theft of a motor vehicle constituted a ''theft offense'' under the IIRIRA, by developing a generic theft definition that included the taking control of property of another with the criminal intent to deprive the owner of the rights and benefits of ownership, even if such deprivation is less than permanent. The court also noted that ''since Hernandez-Mancilla was sentenced to six years, his prior conviction for possession of a stolen motor vehicle constitutes an 'aggravated felony.' '' This sentence suggests that the Seventh Circuit may consider the ''at least one year'' requirement to mean the actual sentence imposed, not the sentence available, which has been the position of other courts that specifically addressed the issue. See, e.g., United States v. Guzman-Bera, 216 F.3d 1019, 1020 (11th Cir. 2000) ; Alberto-Gonzalez v. INS, 215 F.3d 906, 908 (9th Cir. 2000) .

In United States v. Martinez-Garcia, 268 F.3d 460, 465-66 (7th Cir. 2001) , the court expanded on these principles once again. Here, the defendant pled guilty to unlawfully entering a motor vehicle with the intent to commit a theft offense. As there was no indication he completed the offense, the court was compelled to fashion a generic ''attempt'' definition, derived from the Model Penal Code: (1) intent to commit a crime; and (2) a substantial step towards completion. Martinez-Garcia, 268 F.3d at 465. In pleading guilty to entering a vehicle with intent to commit a theft offense, the defendant in Martinez-Garcia had admitted a deportable offense.

Aggravated felonies include crimes of violence. Whether an offense qualifies as a ''crime of violence'' requires resort to 18 U.S.C. ß  16. Included are: (1) offenses that have an element of use, attempted use, or threatened use of physical force against a person or property; and (2) offenses that are felonies and that by their nature involve a substantial risk that physical force may be used in the commission of the offense. Under this definition, the offenses of drunk driving and homicide by intoxicated use of a motor vehicle did not qualify as aggravated felonies--the court construed 18 U.S.C. ß  16 to require ''volitional conduct.'' Bazan-Reyes v. INS, 256 F.3d 600, 609 (7th Cir. 2001) . Note, however, that the definition of ''crime of violence'' under 18 U.S.C. ß  16 differs from the definition of crime of violence under the Sentencing Guidelines. Guideline ß  4B1.2(a)(2) defines a crime of violence to include conduct that presents ''a serious potential risk'' of physical injury. Hence, drunk driving can be a crime of violence under the Guidelines. Bazan-Reyes, 256 F.3d at 607,citingUnited States v. Rutherford, 54 F.3d 370, 373-76 (7th Cir. 1995) .

Under ß  1227(a)(2)(E), a defendant must be deported if he commits a crime of domestic violence, which means any crime of violence under 18 U.S.C. ß  16 and has a spouse or other domestic partner as a victim. In Flores v. Ashcroft, 350 F.3d 666 (7th Cir. 2003) , defendant had committed misdemeanor battery in Indiana, where the victim was his wife. Section 16(a) defines crimes of violence as offenses ''that have as an element'' the use, attempted use, or threatened use of physical force; ß  16(b) includes felonies that involve a substantial risk of force. Because this was a misdemeanor, the offense fell under ß  16(a), and the question was whether Flores' battery on his wife fit the definition of domestic violence for immigration purposes. The court noted that all batteries have some force, but it did not follow automatically that every use of force was an act of violence. In Flores' case, the court knew that the offensive touching was more ''physical force against'' as opposed to ''physical contact with,'' but since the ''elements'' of Indiana battery did not require physical force it did not qualify as a crime of violence. Flores, 350 F.3d at 672.

In Lemus-Rodriguez v. Ashcroft, 350 F.3d 652 (7th Cir. 2003) , the defendant had been convicted in Illinois of attempted discharge of a firearm; his offense: he fired his rifle into the air on New Year's Eve. Under ß  1227(a)(2)(C), that appeared to make him automatically deportable for having been convicted of a crime using a firearm or destructive device as defined in 18 U.S.C. ß  921(a) . Defendant tried to drop himself into an exception under ß  921(a) that excludes, from the definition of destructive device, ''a rifle which the owner intends to use solely for sporting, recreational or cultural purposes.'' Id., ß  921(a)(4). The court rejected his argument that shooting a rifle to celebrate New Year's Eve has a cultural purpose, as opposed to being a dangerous, irresponsible and criminal act. Lemus-Rodriguez, 350 F.3d at 655-56.