{"id":11390,"date":"2018-11-20T12:00:55","date_gmt":"2018-11-20T17:00:55","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/crcl\/?p=11390"},"modified":"2018-11-20T10:37:19","modified_gmt":"2018-11-20T15:37:19","slug":"challenging-immigration-laws-conviction-definition","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/crcl\/challenging-immigration-laws-conviction-definition\/","title":{"rendered":"Challenging Immigration Law\u2019s Conviction Definition"},"content":{"rendered":"

Guest post by Phillip L. Torrey. *Phillip Torrey is the Managing Attorney of the\u00a0Harvard Immigration and Refugee Clinical Program, a Lecturer on Law, and the Supervising Attorney for the Harvard Immigration Project. At HLS, he supervises\u00a0the Crimmigration Clinic and he teaches a course concerning the intersection of criminal law and immigration law. His research focuses on the crime-based grounds of removal and immigration detention, including the private prison industry, and the immigration system\u2019s mandatory detention regime.\u00a0\u00a0<\/em><\/p>\n

 <\/p>\n

The \u201cconviction\u201d definition is one of the most misunderstood and odious provisions in our country\u2019s immigration statute. The \u201cconviction\u201d term is a misnomer because it includes criminal dispositions that are often not considered convictions at all. Despite its perplexing definition, \u201cconvictions\u201d are frequently used as markers for removal. For example, in FY2017<\/a>, Immigration and Customs Enforcement (\u201cICE\u201d) apprehended 143,470 individuals within the interior of the United States and ninety-two percent of those individuals had a criminal conviction, arrest, or an outstanding removal order. In FY2016<\/a>, ICE\u2019s apprehension totals likewise showed that ninety-two percent of individuals arrested by ICE had a criminal conviction. The purpose of this short article is to explain immigration law\u2019s enigmatic \u201cconviction\u201d definition, its nefarious history, and current efforts to challenge the definition\u2019s interpretation. In so doing, the article draws on my prior scholarship<\/a>, which — along with a seminal article by immigration scholar Jason Cade<\/a> — became the blueprint for challenging the \u201cconviction\u201d definition in federal court.<\/p>\n

In 1996, the \u201cconviction\u201d definition was codified in our country\u2019s primary immigration statute known as the Immigration and Nationality Act (\u201cINA\u201d). The INA\u2019s \u201cconviction\u201d definition includes two distinct prongs. If either prong is satisfied, then the state criminal disposition at issue is rendered a conviction for immigration purposes regardless of how the state categorizes the disposition. The definition\u2019s first prong is straightforward. It simply requires a final judgment of guilt entered by a court. The second prong, however, turns any guilty plea, no contest plea, or admission to \u201csufficient facts to warrant a guilty finding\u201d plea into a conviction for immigration as long as some punishment, penalty or restraint on liberty is imposed — even if that plea is held in abeyance or later vacated. The second prong, as currently interpreted, morphs many deferred adjudications and expungements into convictions for immigration purposes even though most states would not consider dispositions from those types of ameliorative programs convictions for state law purposes.<\/p>\n

Sweeping ameliorative programs into the \u201cconviction\u201d definition was no mistake. The definition was codified in the Illegal Immigration and Immigrant Responsibility Act of 1996 (\u201cIIRAIRA\u201d), which was passed during an election year when Congress was eager to demonstrate that it was tough on crime and determined to secure our borders — both of which were considered winning campaign slogans. Although IIRAIRA has a dearth of legislative history, the following quote from a conference report is illustrative:<\/p>\n

[A]liens who have clearly been guilty of criminal behavior and whom Congress intended to be considered \u201cconvicted\u201d have escaped the immigration consequences normally attendant upon a conviction. . . .\u00a0 [E]ven in cases where adjudication is \u201cdeferred,\u201d the original finding or confession of guilt is sufficient to establish a \u201cconviction\u201d for purposes of the immigration laws.[1]<\/a><\/p>\n

But in the age of the plea deal where \u201cinnocence is irrelevant<\/a>\u201d and mass incarceration and racial discrimination have become synonymous with criminal justice, the assumption that individuals who pursue an ameliorative program are \u201cclearly . . . guilty of criminal behavior\u201d is baseless at best and overtly vindictive at worst.<\/p>\n

In fact, all states offer ameliorative programs that were designed to respond to rising incarceration rates and the devastating effects of the War on Drugs on communities of color. For example, Missouri has a suspended sentencing program that does not result in a conviction for state law purposes and therefore allows certain criminal offenders the opportunity to avoid the societal disenfranchisement that typically comes with a criminal conviction. Describing that ameliorative program, the Supreme Court of Missouri noted that \u201c[t]he obvious legislative purpose of [the program] is to allow a defendant to avoid the stigma of a lifetime conviction and the punitive collateral consequences that follow.\u201d[2]<\/a> The Court further recognized that the deferral program was an important \u201ctool\u201d for criminal sentencing courts to allow certain offenders \u201ca chance to clear their records by demonstrating their value to society through compliance with conditions of probation under the guidance of the court.\u201d[3]<\/a> When the INA\u2019s \u201cconviction\u201d definition attaches immigrations consequences such as detention and deportation to these ameliorative programs, it frustrates the state\u2019s desire to facilitate the rehabilitation and reintegration of individuals in those programs.<\/p>\n

A California expungement law is now at the center of litigation because of the inherent federalism tension created by immigration law\u2019s \u201cconviction\u201d definition. The California expungement statute allows a defendant to withdraw a guilty plea when subsequently imposed conditions of probation are met. A final plea of not guilty is then entered by the court, which effectively vacates the prior guilty plea. The purpose of the law is to \u201chelp further reduce recidivism, building upon statewide efforts to assist those who have served their time and proven their willingness to be productive, contributing, law-abiding members of society.\u201d[4]<\/a> California\u2019s expungement law is a legitimate exercise of its reserved powers to regulate the health and safety of its residents because it designed to encourage \u201crehabilitated individuals to obtain a decent paying job, qualify for secure and safe housing, or pursue their educational goals.\u201d[5]<\/a> The purpose of that law is thus undermined when individuals with expunged convictions are detained and deported by the immigration enforcement system.<\/p>\n

The obvious federalism tension between the INA\u2019s \u201cconviction\u201d definition and California\u2019s expungement law is at issue in a lawsuit currently pending before an en banc Ninth Circuit. In that case, I recently co-counseled an amicus brief<\/a> on behalf of immigration professors arguing that a California expungement should not be categorized as a conviction for immigration purposes. The brief argued that the expungement law was a valid exercise of a state\u2019s reserved police powers and that the INA\u2019s \u201cconviction\u201d definition must be interpreted to avoid purposefully obstructing a state\u2019s ability to exercise that power. In other words, the federalism principles upon which our government is founded do not grant Congress the unfettered authority to undermine a state law duly enacted pursuant to a state\u2019s constitutional authority.<\/p>\n

At a time when the current Administration invokes the \u201crule of law\u201d to justify the reprehensible use of detention and deportation to tear families apart, it is more important than ever to confront nefarious parts of our immigration law that have gone overlooked for decades. The \u201cconviction\u201d definition is one such feature of our immigration law that advocates should continue to challenge.<\/p>\n

[1]<\/a>\u00a0 See <\/em>H.R. Conf. Rep. No. 828, 104th Cong. (1996), reprinted in 142 Cong. Rec. H10899 (daily ed. Sept. 24, 1996).<\/p>\n

[2]<\/a>\u00a0 Yale v. City of Independence, 846 S.W.2d 193,195 (1993).<\/p>\n

[3]<\/a>\u00a0 Id<\/em>.<\/p>\n

[4]<\/a>\u00a0 A.B. 1115, Comm. on Pub. Safety, 2017-18 Sess., at 2 (Cal. 2017).<\/p>\n

[5]<\/a>\u00a0 A.B. 1115, Third Reading Bill Analysis, 2017-18 Sess., at 5 (Cal. 2017).<\/p>\n","protected":false},"excerpt":{"rendered":"

Guest post by Phillip L. Torrey. *Phillip Torrey is the Managing Attorney of the\u00a0Harvard Immigration and Refugee Clinical Program, a 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