July 17, 2007

III. Deportation Law Based on Criminal Convictions Before 1996

Early History of the Deportation Power

In 1996, Congress adopted the most sweeping immigration law changes in the history of the United States, focusing in particular on deporting non-citizens with criminal convictions. In the 50 years leading up to these historic amendments, Congress had already made incremental changes to US immigration law. This chapter traces the most significant of these earlier changes, setting the stage for Congress's broad overhaul in 1996.

All governments enact immigration laws to control the flow of people across their borders. The United States is no exception, and has a long history of regulating which non-citizens can enter and live in the country, for how long, and for what reasons. Early laws mostly controlled entry to the country, and were less concerned with deportation.[7] For example, a general immigration law passed in 1875 excluded prostitutes and alien convicts from entering the United States, and the 1882 Immigration Act denied entry to "convicts (except those convicted of political offences), lunatics, idiots, and persons likely to become public charges."[8] An 1891 law refused entry to prospective immigrants who had a "dangerous contagious disease" or were polygamists, and a 1917 law established a literacy requirement for admission to the country.

However, deportation also has a long history in the United States. As early as 1798, the newly established US Congress passed the Alien Enemies Act and the Alien Friends Act, which empowered the president to expel any non-citizen he deemed dangerous.[9] Other changes passed in 1882 made it illegal for Chinese laborers to enter or to remain in the United States.[10] In 1952 the McCarran-Walter Act established the basic structure of US immigration law today, setting up deportation procedures, creating an admissions system with quotas based on nationality, as well as detailed exclusions based on political grounds. Other major changes to US immigration laws have occurred in 1965, 1980, 1986, 1988, 1990, and 1996.

Throughout the history of the United States, many different kinds of non-citizens have been made subject to deportation after criminal convictions. People with lawful permanent resident status (or green card holders), including those who have lived lawfully in the US for decades, are subject to deportation. So are other legal immigrants-refugees, students, businesspeople, and those who have permission to remain because their country of nationality is in the midst of war or a humanitarian disaster. Of course, undocumented non-citizens are also subject to deportation regardless of whether they have committed a crime.

A primary principle of US immigration law is that US citizens can never be denied entry into the US; neither can they ever be forcibly deported from the US. By contrast, non-citizens, even those who have lived in the country legally for decades, are always vulnerable to deportation, especially if they have been convicted of a crime. 

Crimes of Moral Turpitude and Aggravated Felonies

Created as a category in 1891, "crimes of moral turpitude" have long been a type of criminal conviction that could render non-citizens subject to deportation. The term "moral turpitude" is undefined in immigration law, and this lack of clarity has left courts to draw their own conclusions as to what crimes fit the definition over time. Courts have generally found that a "moral turpitude" offense must involve immoral or fraudulent intent[11] as an element of the offense.[12]  Weapons offenses involve moral turpitude when committed with a malicious intent, but not when committed "passively."[13] Attempts and conspiracies to commit crimes and being an accessory to a crime involve moral turpitude if the primary or substantive offense does.[14]

Broadly speaking, from 1952 until 1996, non-citizens were subject to deportation for crimes of moral turpitude committed within five years after the date of entry and with a sentence of at least one year.[15] Non-citizens were also subject to deportation for violating a controlled substance law[16] or for unlawful possession of an automatic weapon.[17]

With the passage of the Anti-Drug Abuse Act (ADA) in 1988, Congress added to the types of crimes that could render someone deportable and began limiting the procedures available to non-citizens who wished to challenge their deportation. The ADA added a new category of crimes for which non-citizens were subject to deportation, called "aggravated felonies." This category included murder as well as many of the crimes previously categorized as crimes of moral turpitude, including drug and firearms offenses.[18]

Virtually every subsequent change to US immigration law has included an expansion of the aggravated felony definition. The Immigration Act of 1990 expanded the category to include crimes of violence for which the term of imprisonment that the court may impose is at least five years, as well as money laundering and trafficking in any controlled substance.[19]  The Immigration and Technical Corrections Act of 1994 added additional weapons offenses, some theft and burglary offenses, prostitution, tax evasion, and certain categories of fraud as aggravated felonies.[20]

Throughout the history of immigration law in the United States until the present day, deportation ensues only after the non-citizen involved has served his or her criminal sentence. Upon release from criminal incarceration or upon payment of the necessary fines, the non-citizen is put into deportation procedures. Up until 1988, non-citizens could be deported from the United States only after a hearing before an immigration judge in which the non-citizen could raise one of several bases (see discussion below) for canceling[21] their deportation orders. If the immigration judge found that the non-citizen failed to meet any of these bases for cancellation, the order of deportation became final. Thereafter, the non-citizen was deported unless he or she chose to appeal the immigration judge's decision to the Board of Immigration Appeals (BIA), an administrative court. Once the BIA reached its decision, the non-citizen could appeal to an independent federal court within six months.

From the 1950s until the 1990s, non-citizens could raise one of several possible bases for canceling their deportation from the United States. These were:

  • A Judicial Recommendation against Deportation. US immigration law used to allow non-citizens to ask their criminal court judge to issue a binding recommendation that, despite conviction of a crime of moral turpitude, the conviction must not trigger deportation.[22] This basis for stopping deportation was eliminated by Congress in 1990.
  • Suspension of Deportation. A non-legal permanent resident of good moral character who had lived in the US for a minimum of seven years could ask an immigration judge to suspend his or her deportation after demonstrating that deportation would cause him or her extreme hardship.[23]
  • Waiver of Deportation (212(h)).[24] Non-citizens who were the spouses, parents, or children of a US citizen or legal permanent resident, upon evidencing that they would suffer extreme hardship, could ask the immigration judge to waive deportation based on a crime of moral turpitude or possession of 30 grams or less of marijuana.[25]
  • Waiver of Deportation (212(c)). Non-citizens who were legal permanent residents and had lived in the United States lawfully for at least seven years could ask the immigration judge to waive deportation based on a series of factors such as family ties within the United States, duration of residence in the United States (particularly when residence began at a young age), hardship to family if deportation occurred, service in US armed forces, history of stable employment, and other evidence attesting to the non-citizen's good character. Adverse factors included the seriousness of the crime, and whether the individual had a record of immigration or additional criminal offenses.[26]
  • Withholding. Non-citizens could ask the immigration judge to withhold their deportation if their life or freedom would be threatened in the country of proposed return on the basis of their race, religion, nationality, membership in a particular social group, or political opinion. Non-citizens with a criminal record could not request withholding if they had been convicted of a "particularly serious crime," a term that was interpreted by courts until 1990, at which time Congress decided that aggravated felonies constituted "particularly serious crimes," and therefore prevented non-citizens with aggravated felony convictions from applying for withholding.[27]

With the passage of the Immigration Act of 1990 and the Immigration and Nationality Technical Corrections Act of 1994, immigration law remained in this configuration until the major changes passed by Congress in 1996.

Case Study: Why Not Become a Citizen? [28]

Given the very harsh effects of deportation, it is natural to wonder why immigrants do not become citizens; which is the only surefire way to effectively avoid deportation. Human Rights Watch posed this question to many of the individuals and families we interviewed, and we received many credible answers.

For example, Pierre B., originally from the Philippines, lived in the United States from his early childhood as a lawful permanent resident. He was deported from the United States for a criminal conviction. In a telephone interview with a Human Rights Watch researcher, Pierre B's mother, Beth B., explained that she purposefully kept her son from becoming a US citizen since dual citizenship was not an option at the time, and she did not want him to lose his rights to inherit his father's property in the Philippines.

Other immigrants claimed it was ignorance (including the ignorance inherent in youth) that kept them from taking the necessary legal steps to become citizens. Juan F., originally from Guatemala, came to the United States with his mother when he was four years old. He lived in the United States for 19 years, during which time, he said, "my mistake was to not listen to my mom. She told me, 'go become a citizen. . .' In reality, it's my fault."

Many other immigrants never understood that their status as "lawful permanent residents" was, contrary to the ordinary meaning of the phrase, not permanent (see case study "I am Legally Here," below).

Immigrants also fail to apply for citizenship because there is no point in doing so. Individuals who try to naturalize after a criminal conviction often fail to meet the "good moral character" requirement in naturalization law. For example, Kai Tung Chan, originally from China, entered the United States on December 20, 1975, with a visitor's visa issued by the United States Consulate in Hong Kong. In June 1985 Chan married a United States citizen, and in October of that year Chan was granted lawful permanent resident status.

In 1993, Chan pled guilty to one count of conspiracy to smuggle aliens, and was sentenced to five years of probation and fined $5,000. Soon thereafter, immigration authorities charged Chan with deportability, but because Chan had accepted responsibility for his offense and because his deportation would cause his family hardship, the immigration judge granted him a waiver of deportation under the previous immigration laws (Section 212(c)). Thereafter, Chan completed his probation and paid the fine without incident.

By 2002, Chan had lived in the US for a decade without committing another offense. On March 20 of that year, he decided to submit an application to become a US citizen through naturalization. On his application, Chan acknowledged his past conviction for conspiracy to smuggle aliens. Chan took and passed the naturalization exam. However, his application for naturalization was denied due to his inability to establish good moral character. The decision to deny his application was affirmed by the court of appeals.

[7]Throughout this report, we use the term "deportation" and "removal" interchangeably to refer to a government's policy to remove a non-citizen from its territory. We note that the terms had different meanings under earlier versions of US immigration law, and that now all such governmental actions are referred to in US law as "removals." Nevertheless, for ease of reading and simplicity we use the more commonly understood term "deportation" wherever possible.

[8]Immigration Act, 1882.

[9]50 U.S.C. Sections 21-23, 1798.

[10]An Act to Execute Certain Treaty Stipulations Relating to Chinese, Section 1 and Section 2, 1882.

[11]Charles Gordon et al., Immigration Law and Procedure (New York: Matthew Bender, revised edition, 1999), Sections 71.05[1][d][i] and 71.05[1][d][iii].

[12]Commentators divide "crimes involving moral turpitude" into four major categories: (1) crimes against the person; (2) crimes against property; (3) sex crimes and crimes involving family relationships; and (4) crimes of fraud against the government or its authority. Brian C. Harms, "Redefining 'Crimes of Moral Turpitude': A Proposal to Congress," Georgetown Immigration Law Journal, vol. 15 (Winter 2001), p. 259.

[13]See, for example, Andreacchi v. Curran, 38 F.2d 498 (S.D.N.Y. 1926); Ex parte Saraceno, 182 F. 955 (S.D.N.Y. 1910); In re S, Immigration & Nationality Laws Administrative Decisions, vol. 8, decision 344 (B.I.A. 1959) (carrying a concealed weapon is a crime of moral turpitude when local statute specifies that carrying a concealed deadly weapon allows presumption that person carrying weapon had intent to use it against another person).

[14]Annotation, "What Constitutes 'Crime Involving Moral Turpitude' Within Meaning of Sections 212(a)(9) and 241(a)(4) of Immigration and Nationality Act (8 USCS Sections 1182(a)(9), 1251(a)(4)), and Similar Predecessor Statutes Providing for Exclusion or Deportation of Aliens Convicted of Such Crime," American Law Reports Federal, vol. 23 (1975), p. 487 (citing Jordan v. DeGeorge, 341 U.S. 223 (1951)).

[15]8 U.S.C. Section 1251(a)(4)(1952).

[16]8 U.S.C. Section 1251(a)(11)(1952).

[17]8 U.S.C. Section 1251(a)(14)(1952).

[18] Anti-Drug Abuse Act, 1988, Section 7344(a).

[19]Public Law No. 101-649, 104 Stat. 4978, 1990.

[20]Public Law No. 103-416, 108 Stat. 4305, 1994.

[21]Although the various defenses to deportation have a variety of technical names in immigration law (cancellation, withholding, waiver, suspension), we use the term "cancellation" simply to mean any decision by an immigration authority or judge to prevent the deportation of a non-citizen from the United States.

[22]8 U.S.C. Section 1251(b), 1986.

[23] 8 U.S.C. Section 1254(a)(1), (2), 1986.

[24]Throughout this report, in the text we use the more commonly understood citations to the Immigration and Nationality Act ("Section 212(h)"), and in the footnotes we cite to the codification of these sections in the United States Code ("8 U.S.C. Section 1182(h)").

[25]8 U.S.C. Section 1182(h), 1990.

[26]8 U.S.C. Section 1182(c), 1990.

[27]8 U.S.C. Section 1253(h), 1990.

[28]This text box is based on a Human Rights Watch telephone interview with Beth B., mother of Pierre B. (both pseudonyms), Scottsdale, Arizona, May 2006; a Human Rights Watch interview with Maria F. and Juan F. (both pseudonyms), Los Angeles, California, April 7, 2006; and Chan v. Gantner, 464 F.3d 289 (2d Cir. 2006).