Attorney General (AG) William Barr directed the Board of Immigration Appeals (BIA) on Wednesday to refer two cases, Matter of Thomas and Matter of Thompson, to him for review on certification. The ultimate decision will likely provide needed guidance to immigration adjudicators, and will also likely limit any attempts by activist state judges and prosecutors to protect otherwise removable aliens from the immigration consequences of their criminal activity.
In his order, the AG invited the parties and interested amici to submit briefs addressing the question of how a "judicial alteration of a criminal conviction or sentence. . . should be taken into consideration in determining the immigration consequences of the conviction."
By way of background, although immigration law is uniquely the province of the federal government, the immigration consequences of criminal convictions are often reliant on state-law definitions, procedures, and the interpretation of those definitions and procedures. For example, section 237(a)(2)(A)(iii) of the Immigration and Nationality Act (INA) renders removable any alien who has been convicted of an aggravated felony after admission. Included in the aggravated felony definition at section 101(a)(43) of the INA is "illicit trafficking in a controlled substance (as defined in section 802 of title 21), including a drug trafficking crime (as defined in section 924(c) of title 18)."
The first referenced provision, 21 U.S.C. § 802(6), defines a "controlled substance" to include "a drug or other substance, or immediate precursor" on one of five federal drug schedules, which are listed in regulations at 21 C.F.R. § 1308. The second provision, 18 U.S.C. § 924(c)(2), defines "drug trafficking crime" as "any felony punishable under the Controlled Substances Act (21 U.S.C. § 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. § 951 et seq.), or chapter 705 of title 46." The primary federal provision related to drug trafficking is 21 U.S.C. § 841(a)(1), which renders it unlawful to "knowingly or intentionally manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance," and classifying most of the offenses thereunder as felonies.
The question often then becomes, for example, whether a state conviction for a drug offense constitutes "illicit trafficking in a controlled substance." For example, section 780-113(a)(30) of title 35 of the Pennsylvania statutes states that, except as otherwise authorized, "the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered . . . or knowingly creating, delivering or possessing with intent to deliver, a counterfeit controlled substance" is a crime.
In making the determination whether this state crime satisfies the federal definition, such that the offense is an aggravated felony, the immigration court must determine whether the acts committed and the drug involved under that Pennsylvania state law would constitute a felony under the Controlled Substances Act. Notably, not all state and federal drug statutes or schedules are identical, and the language that is used in each can have a significant effect on the outcome of the removal case.
A similar analysis must occur when there is some sort of post-conviction relief that may have an effect on the immigration consequences of a state conviction. This largely arises from the fact that the definition of "conviction" in section 101(a)(48)(A) of the INA does not address the effect of post-conviction relief for a conviction that has immigration consequences.
One major change of this sort was attempted through California Senate Bill 1242 (2016), which amended section 18.5 of the California Penal Code.
In essence, this bill retroactively applied earlier legislation that had lowered the maximum penalty for a misdemeanor under California state law from a year or less to not more than 364 days. It also allowed a previously convicted criminal who had been convicted of a misdemeanor and received a sentence of one year in county jail to apply to the court that entered the judgment to modify that sentence to 364 days.
The author of that bill, Ricardo Lara, was clear about his intentions, as the California Senate Committee on Public Safety explained in April 2016:
Two years ago SB 1310 (Lara, 2014) aligned the definition of misdemeanor between state and federal law. Federal law defines a misdemeanor crime as punishable for up to 364 days and anything longer is considered a felony. Previously, California defined a misdemeanor as a crime punishable for up to 365 days. The federal government did not recognize California's definition due to this minor and technical difference, thousands [of] legal residents, who committed low level and non-violent crimes were subject to deportation, needlessly ripping apart families.
While SB 1310 aligned state and federal law on a prospective basis, it did not help those who were convicted of a misdemeanor prior to 2015. Thousands of legal residents are currently living in California with the threat of deportation looming for minor crimes. Many of those people have families and businesses in the state and a few ties to their country of origin.
SB 1242 will provide on a retroactive basis that all misdemeanors are punishable for no more than 364 days and ensure that legal residents are not deported due to previous discrepancies between state and federal law.
The BIA rejected this attempt to change the federal consequences of a prior California state conviction in Matter of Velasquez Rios, finding that even if the law as amended "may have retroactively modified the maximum possible sentence for the respondent's . . . offense [forgery] for purposes of State law, it does not affect the immigration consequences of his conviction under . . . Federal law."
In Matter of Marquez Conde, on the other hand, the BIA made clear that "convictions that have been vacated based on procedural and substantive defects in the underlying criminal proceeding [are] no longer valid for immigration purposes." The BIA reaffirmed, however, its decision in Matter of Pickering concerning the effect of vacations of convictions as post-conviction relief.
In Matter of Pickering, the BIA held:
If a court vacates an alien's conviction for reasons solely related to rehabilitation or immigration hardships, rather than on the basis of a procedural or substantive defect in the underlying criminal proceedings, the conviction is not eliminated for immigration purposes.
Aliens seeking to avoid the immigration consequences of their criminal actions will often try to obtain post-conviction relief based on procedural and substantive defects, even if there were no such defects in the underlying proceedings. It is only natural, if unfortunate, that there may be judges and prosecutors who disagree with the so-called "harsh" effects of the immigration laws who agree to go along with such efforts. The AG's decision in Matter of Thomas and Matter of Thompson may go a long way to curbing any such attempts to subvert the immigration laws.
In any event, the AG's ultimate decision will likely provide immigration judges, the BIA, and federal courts with standards to follow in determining whether a conviction that is vacated after the fact remains valid for immigration purposes. Determining the reasons why a conviction was vacated, modified, or clarified after the fact is often a difficult task, even under the BIA decisions referenced above. State courts are not always clear as to their reasons for post-conviction relief, and state statutes often have to be consulted and construed to determine whether a conviction continues to be viable for federal purposes or not.
Clarification by the AG of "whether, and under what circumstances, judicial alteration of a criminal conviction or sentence . . . should be taken into consideration in determining the immigration consequences of the conviction" will speed such determinations, which should have a positive effect on the overwhelming backlog of cases in immigration courts.