Deportation Factors and Crimes Involving Moral Turpitude
Research indicates that since the late 1980s, Congress had been tightening the substantive provisions of the immigration laws, to make it far less likely that a convicted criminal alien can find a way to be relieved of expulsion. For many years the basic statutory pattern was that a crime involving moral turpitude rendered a person deportable, if it was committed less than five years after the person's entry and resulted in a sentence of one year or more confinement. A later-committed crime or one that drew a lighter sentence did not result in deportation. If the person committed two such crimes that were not part of a single criminal scheme, they could render the person deportable no matter when they were committed. A drug offense or a firearms possession offense ordinarily made a person deportable whenever it was committed.
The Anti-Drug Abuse Act of 1988 added the concept of an aggravated felony to the immigration laws. A person found guilty of an aggravated felony committed at any time would be deportable. Until 1994, the definition of an aggravated felony included only murder, drug trafficking, and firearms trafficking, plus conspiracy or attempt to commit those offenses. In the years that followed, the definition of an aggravated felony expanded. As a result, its' impact on the immigration laws became more severe since the rule remained that commission of an aggravated felony made the person deportable, no matter how many years of lawful residence the person may have accrued earlier. Congress also began to use this widening list of aggravated felonies as a tool to cut back on discretionary relief from deportation for criminal aliens.
Cancellation of removal was a form of relief that evolved to provide protection primarily to persons convicted of criminal offenses who had been lawful permanent residents for seven years or more. If the person met the basic threshold requirements, then wide discretion was accorded to the immigration judge to decide whether the person deserved to escape removal, despite the crime. This provision provided a necessary safety valve to recognize the stakes that a lawful permanent resident had in the community, and to allow the immigration judge to determine that the criminal sanction was sufficient penalty for the crime, a penalty that should not be compounded by deportation.
Cancellation of removal was very flexible, because any alien, no matter how serious the crime, could be considered for the benefit. The statute provided no clear standards for exercise of this discretion, and as a result, patterns could vary widely among immigration judges, and INS appeals brought only limited uniformity.
In 1990, the aggravated felony concept was amended to read that aggravated felons sentenced to five years or more incarceration were ineligible to receive cancellation-type relief. This change carried a limited impact initially because of the narrow definition of aggravated felony. However, as indicated in the Legislative History above, the impact widened considerably with legislative changes in 1994 and 1996. In 1994, the definition of aggravated felony was expanded to include additional serious offenses, including racketeering, alien smuggling for commercial advantage, child pornography, peonage, fraud offenses involving losses of over $200,000, and crimes of violence or theft offenses drawing a 5-year sentence. As a result, a conviction of one of these offenses would render the person deportable whenever it was committed, and cancellation relief would be barred if the sentence was greater than five years. In 1996 the aggravated felony definition was again greatly expanded, and this time its impact was made even more sweeping. New offenses were added to the list, and minimum thresholds required were substantially reduced.
Drawing the Line in Cases involving Moral Turpitude
As a result of the legislation, crimes involving moral turpitude, which rendered an individual deportable, essentially now included every possible offense. Cancellation relief is now wholly unavailable to anyone with an aggravated felony conviction. Asylum and withholding of removal, since 1990, have been likewise barred to aggravated felons. Withholding is now possible for an aggravated felon if the sentence was for less than five years, although immigration judges retain discretion to find that a lesser offense is nonetheless a particularly serious crime barring the criminal from refugee protections. The broadening of the definition of an aggravated felony has raised many questions as to where the line should be drawn involving crimes of moral turpitude. As a result of the broadening, practically any alien who commits a nontrivial crime, is subject to automatic expulsion. This is especially true if the crime fits one of the 21 paragraphs of the new definition of an aggravated felony. This result ensues even if the alien has been a lawful permanent resident since childhood, the crime and punishment took place...
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