Analyzing the mischief of Min Song


Criminal alien amnesty for clever thieves

Board of Immigration Appeals

Interim Decision #3455
 – The Min
Song
case opened the floodgates for
"aggravated felon" criminal alien residents to
keep their green cards.

On September 5, 2001, the Board of Immigration
Appeals granted a nation-wide mini-amnesty to any
criminal alien clever enough to hire a lawyer to go back
and change their client`s state court criminal
conviction in order to avoid the federal immigration
consequences of the crime. The BIA said that "[o]ur
decision in Matter of Roldan, Interim Decision
3377 (BIA 1999), is not applicable here, because in that
case we addressed only the definition of a "conviction"
contained in section 101(a)(48)(A) of the Act, 8 U.S.C.
Section 1101(a)(48)(A)(Supp. V 1999), not the definition
of a "term of imprisonment" set forth in section
101(a)(48)(B)."

Translation of BIA logic: even though the alien went
back to the state court to ask the judge to modify his
conviction to avoid being deported for it (by changing
the sentence from 365 days to 364 days, for example),
the BIA will disregard all of its case law dealing with
the word "conviction" in order to focus on the words
"term of imprisonment" instead. No reasoning. No
analysis. It is as if the BIA just said that the alien
changed his "sentence," not his "conviction" — so the
law of "convictions" doesn`t apply. Earth to BIA: isn`t
a "term of imprisonment" and a "sentence" also part of a
"conviction"? Modifying one part of a conviction also
modifies the whole conviction, right?

The object of this charade of modifying criminal
convictions after the fact is for the criminal aliens to
avoid being classified as an "aggravated felon" under
immigration law. Since some "aggravated felonies"
require a sentence of "one year or more," that is why
they want to change the state court sentences by shaving
off one day. So which crimes are considered an
"aggravated felony" for immigration purposes under
Section 101(a)(43) of the Immigration Act? That`s a good
question. Though the answer is not always certain, it is
a general rule of thumb that aliens convicted of crimes
deemed "aggravated felonies" usually do not pass go, and
do not collect $200. Their chances of avoiding
deportation are slim, but they do have some limited
alternatives. The laundry list of crimes in Section
101(a)(43) of the Immigration Act lists (among others)
the following serious crimes as aggravated felonies:
murder, rape, kidnapping, sexual abuse of a minor, fraud
involving losses over $10,000; drug and firearms
trafficking crimes; two or more convictions for
controlled substance possessions; crimes of violence for
which the term of imprisonment is at least 1 year; and
theft offenses (including receipt of stolen property) or
burglary offenses for which the term of imprisonment is
at least 1 year. The aliens committing these crimes
(whether illegal aliens or criminal alien residents) can
be barred from most relief from removal.

The theft and violence-related crimes in the
definition both require specific sentences of 1 year or
more, while the other crimes listed in the statute are
not dependent on particular sentence lengths. So after
Min Song , the "theft offenses" and "crimes of
violence" aggravated felonies are the new battleground
for immigration trial lawyers. And since each of the
fifty states have their own different criminal statutes,
different definitions of particular crimes and different
sentencing guidelines for time of confinement, as is
their right, the federal government (through Congress)
has difficulty in trying to apply a uniform standard in
determining which criminal aliens should be deportable
for which crimes. [Dear Congress: Why should the length
of a sentence even matter in deporting a convicted
criminal alien … the alien still did the crime,
right?] So given the differences in state laws, this
hyper-technical legal situation creates a
full-employment act for pro- alien immigration lawyers
to challenge each criminal conviction for every alien,
one by one, exploiting the differences in the criminal
codes among the states. Remember that by definition, all
aliens "convicted" of crimes deemed "aggravated
felonies" must have a "term of imprisonment" as part of
their "conviction." So how could all of the prior case
precedent regarding the definition of "conviction" be
inapplicable in the Min Song case? The BIA has
pulled a sleight of hand with dire consequences for this
country. Min Song is a just another rolling,
unlegislated amnesty for criminal resident aliens.

So that`s the story. With the stroke of a pen, the
BIA declared "open season" for career criminal
"aggravated felon" aliens to challenge their convictions
after the fact in state courts, solely for the purpose
of avoiding the federal immigration consequences of
their crimes. This type of nonsense (legislation by the
unelected) exposes the BIA as a rogue component of an
arrogant agency, the Executive Office for Immigration
Review (EOIR). The Attorney General and Congress need to
take a stand and stop this destruction of the
Immigration Act.

I rest my case.

Juan Mann is the proprietor of
DeportAliens.com,
the only immigration reform web site that exposes the
bureaucracy of the EOIR. He dedicates his work to the
principle that one man`s opinion can make a difference.

April 18, 2002