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Immigration and Naturalization Service Institutional Removal Program

Report No. 02-41
September 2002
Office of the Inspector General


APPENDIX III

ANALYSIS OF PRE AND POST IMMIGRATION LAWS

Expansion of the terms of Deportable Offense

Pre 1996
(8 & 1251 pg 163)
  Post 1996
(A) General crimes
  1. Crimes of moral turpitude
    Any alien who-
    1. is convicted of a crime involving moral turpitude committed within five years after the date of entry, and


    2. either is sentenced to confinement or is confined therefore in a prison or correctional institution for one year or longer, is deportable.
  (B) General crimes
  1. Crimes of moral turpitude
    Any alien who-
    1. is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under section 1255 (j) of this title) after the date of admission,


    2. is convicted of a crime for which sentence of one year or longer may be imposed is deportable.
  1. Multiple crime convictions

    Any alien who at any time after entry convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefore and regardless of whether the convictions were in a single trial, is deportable.
  (Same as the pre-1996 wording except in the first sentence the word admission is substituted for entry.)
  1. Aggravated felony

    Any alien who at any time after entry convicted of an aggravated Felony at any time after entry is deportable.
  No change
  1. Waiver authorized

    Clauses (I), (ii), and (iii) shall not apply in the case of an alien with respect to a criminal conviction if the alien subsequent to the criminal conviction has been granted a full and conditional pardon by the President of the United States or by the Governor of any of the several States.
  (Waiver authorized is re-designated as (iv). The new (iv) is designated high-speed flight: Any alien who is convicted of a violation of section 758 Title 18 (relating to high-speed flight from an immigration checkpoint) is deportable (the wording for Waiver authorized is unchanged except for Inclusion of iv).
(B) Controlled substances
  1. Conviction

    Any alien who at any time after entry has been convicted of a violation of (or a conspiracy) or attempt to violate any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21 other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable).
  Only change is the substitution of the word "entry" in place of "admission" in the first sentence.
  1. Drug abusers and addicts

    Any aliens who is, or at any time after entrance has been, a drug abuser or an addict is deportable.
  No change.
(C) Certain firearms offenses

Any alien who at any time after entry is convicted under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying in violation of any law, any weapon, part or accessory which is a firearm or destructive devise (as defined in section 921(a) of Title 18) is deportable.
  Any alien who at anytime after admission is convicted under any law of purchasing, selling offering for sale exchanging, using owning, possessing or carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange use, own, posses, or carry, any weapon, part or accessory which is a firearm or destructive device (as defined in section 921 (a) of Title 18) in violation of any law is deportable.
(D) Miscellaneous crimes

    Any alien who at any time has been convicted (the judgment on such conviction becoming final) of, or has been so convicted of a conspiracy to violate-

  1. any offense under chapter 37 (relating to espionage), chapter 105 (relating to sabotage), or chapter 115 (relating to treason and sedition) of Title 18, for which a term of imprisonment of five or more years may be imposed;
  2. any offense under section 871 or 960 of Title 18
  3. a violation of any provision of the Military selective INS Act (50 U.S.C App. 451 et seq.) or the Trading With the Enemy Act (50 U.S.C. App 1 et seq.); or
  4. a violation of section 1185 or 1328 of this title is deportable.
  No change
(E) Crimes of domestic, violence, stalking or violation of protection order, crimes against children, and    
Not in pre-1996 law  
  1. Domestic violence, stalking, and child abuse

    Any alien who at any time after admission is convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment is deportable. For purposes of this clause, the term "crimes of domestic violence" means any crime of violence (as defined in section 16 of title 18) against a person committed by a current or former spouse of the person, by an individual with whom the person shares a child in common, by an individual who is cohabiting with or has cohabited with the person as a spouse, by an individual similarly situated to a spouse of the person under the domestic or family violence laws of the jurisdiction where the offense occurs, or by any other individual against a person who is protected from that individual's acts under the domestic or family violence laws of the United States or any State, Indian tribal Government, or unit of local government.
   
  1. Violators of protection orders

    Any alien who at any time after admission is enjoined under a protection order issued by a court and whom the court determines has engaged in conduct that violates the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or the persons for whom the protection order was issued is deportable. For purposes of this clause, the term "protection order" means any injunction issued for the purpose of preventing violent or threatening acts of domestic violence, including temporary or final order issued by civil or criminal courts (other than support or child custody orders or provisions) whether obtained by filing an independent action or as a pendente lite order in another proceeding.
Additional crimes designated as aggravated felony:
Prior to 1996 the number of crimes to be determined as aggravated felony (8 &1101 (43)) was limited. The term "aggravated felony" refers to crimes of murder, any illicit trafficking in any controlled substance…including any drug trafficking crime, or any illicit trafficking in any firearms or destructive devices…relating to laundering of monetary instruments…or any crime of violence…for which the term of imprisonment imposed…is at least 5 years, or any conspiracy to commit any such act."
After 1996 the term aggravated felony embraced the following (concepts are paraphrased for clarity.) Those with an * contain an element of those crimes considered aggravated prior to 1996. None of the pre-1996 aggravated felonies ceased to be aggravated after 1996.
*(A)   Murder, rape, or sexual abuse of a minor
*(B)   Illicit trafficking of controlled substance
*(C)   Illicit trafficking in firearms or destructive devices
*(D)   Laundering of monetary instruments
(E)   Activity regarding exploding devises and firearms
*(F)   Crimes of violence with a prison sentence of at least one year
(G)   A theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment is at least one year
(H)   Crimes regarding ransom
(I)   Crimes regarding child pornography
(J)   Crimes regarding racketeer influenced corrupt organizations or gambling for which a sentence of one year imprisonment or more may be imposed
(K)   Offenses that relate (I) to the owning, controlling, managing or supervising of a prostitution business (ii) transportation for the purpose of prostitution (iii) maintaining persons in peonage, slavery or involuntary servitude
(L)   Crimes relating to (i) gathering or transmitting national defense information (ii) relating to undercover intelligence (iii)protecting the identity of undercover agents
(M)   Crimes of fraud which (i) results in a loss to the victim of $10,000
or more or (ii) results in a loss of $10,000 or more to the government
(N)   Offense related to alien smuggling, except the case of a first offense where the alien committed the offense for the purpose of assisting, abetting, or aiding only the aliens only the alien's spouse, child, or parent (and no other individual)
(O)   Offense who was previously deported on the basis of a conviction for an offense described in another subparagraph of this paragraph
(P)   Offense (i) which is falsely making, forging, counterfeiting, mutilating, or altering a passport, (ii) the term of imprisonment is at least 12 months, except for first offense, where the offense
was for the purpose of assisting, abetting and aiding only the aliens spouse child or parent
(and no other individual)
(Q)   Failure to appear by a defendant for the INS of a sentence of an offense punishable by the imprisonment for a term of 5 years or more
(R)   Commercial bribery, counterfeiting, forgery, or trafficking in vehicle identification numbers
for which the term of imprisonment is one year or more.
(S)   Obstruction of justice, perjury, subornation of perjury, or bribery of a witness where imprisonment is one year or more.
(T)   Failure to appear before a court to answer to or depose of a charge of a felony for which a sentence of 2 years imprisonment or more may be imposed.
(U)   An attempt or conspiracy to commit an offense described in this paragraph.
Auditor's Notes: While there have been changes in many areas, the change in application of the moral turpitude clause has the most potential in expanding the number of deportable aliens from pre 1996 to post 1996. The key is prior to 1996 the moral turpitude crime had to have a sentence of one year or more. Post 1996 required only that the crime have a potential prison term of one year or more. Whether the alien was given an actual sentence or served an actual sentence is no longer required. Domestic violence clause may also have expanded the potential caseload. The number of crimes categorized as aggravated felonies increased from 5 to 21. Equally significant is the waiver of the 5-year minimum sentence. Under the 1996 law only 7 (Crimes F, G, J, Q, R, T,) of the 21 had any time constraints and only 2 (Q and T) of the 7 had sentence minimums greater than 1 year. The result is the potential
number of IRP candidates at the local level is greater than prior to 1996.