Unlawful Presence and
Commission of Crimes
By: Samuel N. Omwenga, Esq.
It has been more than three years since the passing and signing into law of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) and no one can plausibly argue that the law has accomplished much of its purported objectives other than its having succeeded in continuing to punish legal “aliens” living in the United States. Although there are efforts under way in the US Congress to pass ameliorative laws to reduce the harshness of IIRIRA—and one hopes they succeed, some of the law’s draconian provisions nonetheless continue to spell doom for most of its victims. Among these include the 3 and 10 year bars of inadmissibility and those setting forth crimes that may subject one to deportation, if convicted of such crimes. This article addresses these two areas of the immigration statute and concludes with a brief observation about other provisions of IIRIRA that the reader may wish to be aware.
1. Unlawful Presence
The 3 and 10 year bars of inadmissibility rank among the worst and harshest provisions found in IRRIRA. Simply put, these provisions mandate that, if you have been “unlawfully present” in the United States, you will never be given a visa while in the US; you must live to get the visa at a consular office outside the US. However, if you leave to get that visa, you do so at your own peril because, if you have been unlawfully present for more than 180 days or more than one year, you must stay away from the US for 3 or 10 years, respectfully, before going to beg for a visa at the consular office. More specifically, the “unlawful presence,” refers to the period when an "alien is present in the U.S. after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled." This provision took effect on April 1, 1997, and the period of unlawful presence began to accrue on that date, without regard to whether the alien was already well into a period of unauthorized stay in the U.S.
It is this “unlawful presence” that triggers the 3 and 10 year bars to admissibility, which is determined as follows: The three-year bar is triggered when an alien who remained unlawfully present in the U.S. for a continuous period of more than 180 days, but less than one year, voluntarily departs the U.S. before the initiation of removal proceedings and then seeks admission to the U.S. within three years of his or her departure date. The ten- year bar to admissibility is triggered when an alien has been unlawfully present for a continuous period of one year, departs and then seeks readmission to the U.S within ten years of her or his departure date.
There are four exceptions to these 3 and 10 year bars but, for obvious reasons, they only cover atypical circumstances: First, the accrual of periods of unlawful presence does not count against aliens under age 18. Second, unless there is a simultaneous period of unauthorized employment, no period of time during which a bona fide application for asylum is pending will count in the calculation of unlawful presence. Third, no time spent in the United States as a beneficiary of family unity protection under the Immigration Act of 1990 will be included when counting periods of unlawful presence. The final exception is for battered women and children, as described by statute, where there is a "substantial connection between the battery or cruelty" and the "violation of the terms of the alien's nonimmigrant visa." There are some technical legal means of preventing the application of these provisions against someone otherwise arguably covered but, as with the exceptions above, only a few individuals may be able to benefit from pursuing such other means.
2. Conviction of Crimes
Ordinarily, and under US laws, if a person is convicted of a crime, he or she is punished by being subjected to some form of punishment ranging from probation to death, depending on the nature and circumstance of the crime and the mood of whoever is rendering the punishment. Once that punishment is passed and served, however, one may not ever again be exposed to additional criminal punishment for the same conduct. This is a constitutional right guaranteed to everyone under the United States Constitution; everyone, that is, except all “aliens” found in the United States. Under US laws, an alien convicted of a crime may not only be punished criminally, he or she could be deported for having committed the crime. This is the classic “double jeopardy” not permissible under the US Constitution but freely ignored when it comes to foreigners convicted of crimes in the United States. The reason given for this different treatment of foreigners is that immigration proceedings are “civil,” not “criminal” therefore the inapplicability of the Constitutional bar of double jeopardy.
Under US immigration laws, a conviction for any of the following offenses may have deportation consequences for an alien: (i) crimes involving moral turpitude; (ii) aggravated felonies; (iii) drug-related offenses; (iv) firearms violations; and (v) violations related to the security of the U.S. There are certain restrictions that may prevent the applicability of each of these categories of offenses in deportation proceedings but their discussion is beyond the scope of this article. Also, for purposes of this article, only the first and second categories of offenses are discussed, beginning with crimes involving moral turpitude.
The statutes do not define what constitutes a "crime involving moral turpitude." However, as they often do in such cases, courts have come up with a working definition that is best captured by a commonly used Board of Immigration Appeals (BIA—the highest court of appeals within the Department of Justice). The BIA defines “crimes involving moral turpitude” to be "conduct that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed [to one another and society in general]." Stated simply, crimes of moral turpitude usually involve a specific criminal intent and/or intrinsically immoral behavior. Some of the crimes that have been found fall within this definition fraud, theft, possession of stolen goods, assault with intent to kill, as well as more heinous crimes such as murder and intentional manslaughter. While it is not possible to list all crimes that do or do not qualify as crimes involving moral turpitude, it should be noted here that, simple assault, certain DUI/DWI and related crimes do not generally qualify as crimes involving moral turpitude. For an assault to be considered a crime involving moral turpitude, for example, the act must be coupled with the intent to commit a crime involving moral turpitude. Put another way, the threshold question in determining if a crime involves moral turpitude is whether there is an act involving willfulness, recklessness, or criminal intent.
Once a crime has been determined to be one involving moral turpitude, an alien convicted of the crime may be deportable under two statutory provisions: A single scheme offender is deportable if he or she is convicted of a crime involving moral turpitude within five years of her or his last “entry” into the U.S. and receives a sentence of at least one year. A multiple scheme offender, that is, a person who has been convicted of more than one crime involving moral turpitude that is not a part of the same plan or scheme, is deportable at any time after entry, without regard to the duration of sentence or length of confinement.
Deportation may also result as a result of being convicted for commission of an “aggravated felony,” a separate and more expansive ground for deportation found in other parts of the immigration law. While most people assume that “felonies” are serious crimes, Congress in 1996 defined many relatively non-serious crimes to be “felonies” for purposes of deportation. Moreover, even though the category of aggravated felonies now includes a large number of criminal acts, commission of crimes that do not meet the definition of aggravated felony may nevertheless lead to deportation because they are "particularly serious,” a phrase defined elsewhere in the statutes to include a range of crimes that were not deportable crimes prior to the passage of IIRIRA and the Anti-Death Penalty statutes in 1996.
As with crimes involving moral turpitude, one must look into court opinions and decisions to determine whether a particular crime is an “aggravated felony.” To guide in this endeavor, federal courts and the BIA have established a number of criteria to be considered in determining whether a crime is particularly serious. These factors include the: (i) nature of the conviction, (ii) circumstances and underlying facts of the conviction, (iii) type of sentence imposed, and (iv) likelihood that the individual will be a danger to the community. Using these criteria, single misdemeanor offenses will generally not qualify as particularly serious crimes, unless they are for drug trafficking or include aggravating circumstances.
With the increased enforcement and deportation provisions of IIRIRA, many resident aliens have reason to be concerned because a criminal conviction for an aggravated felony in their past may now serve as mandatory ground for deportation. If they have not committed such a crime in the past, the other worry is that even the most mundane violation of the law may lead to deportation, if that violation is found to be a crime involving moral turpitude or one falling under some other category of deportable crimes. The only people that should not worry about these provisions are those who are capable of not violating the law in any significant way. However, given the frailties of human nature, it is more likely than not that a number of people in the community will be affected by these laws, if they have not already.
For this reason, it is prudent for anyone who has been charged with a crime to consult an immigration attorney for advice on how to deal with this and related issues. There are a number of options one faced with deportation due to commission of a crime may pursue but, many people unfortunately surface for consultation when it is too late to do much about the problem. But, seeing an attorney for consultation, late as it may, is better than not seeking advice at all. This is because the problem, if it exists at all, does not and will not go away unless addressed one way or the other.