Under HR 4437:
-- Three DUI convictions, including misdemeanors, will constitute an aggravated felony.
-- An undocumented person who is convicted of driving under the influence, or violates state law by failing to take a breathalyzer test, is deportable and subject to mandatory detention. State officers are directed to identify such persons and refer them immediately to immigration authorities.
-- First minor drug convictions that were considered eliminated under Lujan-Armendariz v Ashcroft will no longer be eliminated for immigration purposes.
-- The domestic violence/child abuse deportation ground also will be a basis for inadmissibility, as will an aggravated felony conviction.
-- Solicitation to commit a crime will be considered an aggravated felony. Thus offering to commit a drug trafficking offense will be an aggravated felony, overturning U.S. v Rivera-Sanchez, Leyva-Licea and Coronado-Durazo. Sec. 201(a)(3).
-- Aiding and abetting an aggravated felony will be an aggravated felony. This overturns Corona-Sanchez, Penuliar, Martinez-Perez. Sec. 201(a)(3).
-- A court's reduction of a sentence for immigration purposes will not be counted, overturning the recent Matter of Cota-Vargas and Matter of Song.
-- A recidivist sentence enhancement (i.e., an increased sentence based on having prior convictions) will be counted in the definition of sentence, overturning Corona-Sanchez in the Ninth Circuit. Sec 201(a)(4).
-- In a naturalization application, CIS can find a lack of good moral character based entirely on events that happened outside the period during which good moral character must be proved. Reverses Santamaria-Ames.
-- An aggravated felony is a permanent bar to good moral character regardless of the date of conviction. This eliminates the prior statutory provision that a conviction from before 11/29/90 was not a permanent bar.
-- One of the most damaging provisions, and most violative of basic fairness concerns, is that the burden of proof will be reversed for noncitizens charged with conviction of an aggravated felony. If the government, rightly or wrongly, charges someone with being an aggravated felon, that person (who will be detained) must somehow obtain the court documents and put out the legal arguments to try to prove that she is not. This reverses Supreme Court precedent such as Woodby v INS, and the longstanding statutory rule.
The same provision expands the kinds of documents that can be consulted to prove exactly what offense the person was convicted of, to include police reports and probation reports. This is a fundamental change in the "record of conviction and divisible statute" rules that have existed for decades under the BIA, which now have come to be known as the "categorical analysis" by federal courts. This reverses fundamental Supreme Court precedent, such as Shepard and Taylor, upheld in dozens of federal court cases, for example, Chang, Corona-Sanchez, Rivera-Sanchez, Penuliar in the Ninth Circuit. Sec. 201(a)(4)(iii).
-- There are several new criminal and immigration penalties for conviction for use of false identity documents (apparently such as false drivers licenses) and social security cards.
HR 4437 makes many other extremely significant changes. Please see our preliminary analysis of the broader implications. Among many other things, it imposes new penalties and/or expands the definition of alien smuggling/harboring, use of false documents, and use of false social security cards. Again, the purpose of this brief advisory is to warn represenatives that immigrants with prior convictions or just prior immigration violations should re-evaluate before submitting or pursuing affirmative applications for adjustment, asylum, or naturalization.
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Last Modified: December 12 2006 01:19:04
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