Creative Solution to Avoiding the Consequences of IIRAIRA
Posted Jan 28, 2000

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) expands the list of crimes that are defined as "aggravated felonies." Many crimes that are considered to be misdemeanors under state law are classified as aggravated felonies under the immigration law. For example, a conviction for theft that carries a sentence of a year or more constitutes an aggravated felony, even if the amount stolen is low enough to make the offense a misdemeanor under state law. A person convicted of an aggravated felony under U.S. immigration law has fewer options for possible relief from deportation than a person whose crime does not fit within that definition. The list of aggravated felonies can be found in section 101(a)(43) of the Immigration and Nationality Act.

Some crimes are considered to be aggravated felonies under the immigration law regardless of the sentence imposed. In contrast, certain other crimes are aggravated felonies only when the sentence exceeds a particular length of time. Depending upon the offense, it is necessary to look to either the sentence actually imposed or the sentence that can be imposed under the relevant criminal law. Where the sentence actually imposed is the determining factor as to how an offense is classified, one helpful strategy can be to petition a criminal court for a reduction in sentence retroactively. The procedure for correcting a judgment is known as a writ of error coram nobis.

In the recent case of U.S. v. Ko, a federal court in New York state granted a writ of error coram nobis to reduce the defendant's sentence from a year and a day, to ten months. Ko is a lawful permanent resident of the U.S. The court reduced the sentence specifically in order to avoid the combined impact of IIRAIRA and AEDPA (the 1996 Anti-Terrorism and Effective Death Penalty Act), which retroactively made the person removable if the sentence imposed was for one year or more. (Though this case was decided in federal court, states may have a similar mechanism for reopening a judgment. Requirements and procedures may vary, so it is necessary to consult a competent criminal attorney in the state where the conviction occurred.)

For a person in removal/deportation proceedings, the next step after the sentence reduction is generally to petition the Immigration Court or the Board of Immigration Appeals (BIA) to re-open the case. In re Corso, decided by the BIA in December of 1999, is a case in point. The federal court had granted a writ of coram nobis to reduce Mr. Corso's sentence to less than one year. Before the BIA, the INS attorney argued that the court did not have the authority to issue the writ for immigration purposes. The BIA did not disagree with this statement; rather it found that the court had apparently not considered the immigration issues but had properly granted the writ on the basis of errors of fact. The BIA reopened the case and dismissed the proceedings.

It therefore appears likely that the BIA would not reopen a case based upon a sentence reduction if the writ of coram nobis was granted exclusively on immigration grounds. Such a policy may cause problems for a person such as Ko, since the court in that case was quite explicit about the immigration issues. It remains to be seen whether Ko's sentence reduction will in fact produce the desired result in the pending immigration case.

As mentioned above and in the June 1999 article of the Law Office of Sheela Murthy, it is important to note that each case and offense is different; even if a crime is not an aggravated felony, it can still be a removable offense. Non-citizens facing criminal prosecution should seek competent immigration counsel to determine whether or not a conviction would carry severe consequences. While, as seen above, it is sometimes possible for a person who has already been convicted to obtain a sentence reduction or other type of post-conviction relief, the best course of action is prevention. A criminal law attorney and an immigration attorney can work together while the case is still in the criminal court, to minimize the chance that the defendant will ultimately be subject to removal proceedings under U.S. immigration law.