Agostino Accardo was convicted of making an extortionate extension of credit (18 U.S.C. § 892(a)). The Board of Immigration Appeals (BIA) found 18 U.S.C. § 892(a) to be an aggravated felony and ordered Accardo deported. Aggravated felonies include crimes of violence and the BIA ruled that 18 U.S.C. § 892(a) was a crime of violence.

Accardo appealed to the First Circuit Court of Appeals.

The BIA used a categorical approach to determine that Accardo was deportable. Under the categorical approach if a statute can only be violated by the use of violence no further investigation needs to be done, The immigrant is deported.

An extortionate extension of credit is defined by 18 U.S.C. § 891(6) as:

any extension of credit with respect to which it is the understanding of the creditor and the debtor at the time it is made that delay in making repayment or failure to make repayment could result in the use of violence or other criminal means to cause harm to the person, reputation, or property of any
person.

The First Circuit reversed the finding of the BIA. Under the statute the crime can be violated if the parties to the agreement understand that the failure to timely make payments will result in action that violates the law and that harms the person’s reputation. Since activity that harms the reputation is not necessarily violent the categorical approach cannot be used.

The First Circuit remanded the case to the BIA for a determination of whether the second line of investigation is appropriate. When the categorical approach does not result in deportation the courts are mandated to use the modified categorical approach. Using this tool the court considers a limited number of documents (charging documents, the written plea agreement, the transcript of the plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented) to determine if violence was used in commission of the crime. If so Accardo may still be deported.

Cesar Julio Salazar-Mojica was convicted of a felony assault with a deadly weapon in California in 1980. He was placed on probation. The probation was revoked in 1982 and he was sent to prison. When he was released from prison he was deported to Mexico.

On June 5, 2008 ¹he was arrested near the border and charged with returning to the United States after being deported in violation of 8 U.S.C. § 1326. While awaiting trial on the Federal charge, Salazar-Mojica applied to the state court to reduce his felony charge to a misdemeanor. The application was granted pursuant to California Penal Code Section 17(b). Never the less the Federal Court in determining the guidelines on the Section 1326 charge gave him a 16 level enhancement for a prior felony conviction involving violence. ²

Salazar-Mojica’s guideline range was for between 84 and 105 months. He was sentenced to 66 months.

The Ninth Circuit joined other circuits in finding that the reduction of a felony to a misdemeanor does not affect the enhancement. The crucial time according to the appellate court is the time of the deportation. If it is a felony at the time of the deportation it remains a felony for the purposes of the enhancement.

ICE claims to have definitively decided not to allow individual counties to opt out of its Secure Communities Program. A number of counties including California’s San Francisco and Santa Clara counties as well as Virginia’s Arlington County and Washington D. C. have requested to opt out of the program following the decision of the state Attorneys General to enroll the state in the program.

A community that signs up for Secure Communities electronically provides all fingerprints of those arrested and booked to Homeland Security’s Immigration and Customs Enforcement unit (ICE).

Theoretically, according to ICE, it only uses the information to deport the most serious violators of our laws. But, the truth of the matter is that the program has been used to deport numerous individuals who have no record or who have only infraction or misdemeanor records.

Furthermore, according to San Francisco Sheriff Michael Hennessy the program scares people into not reporting crimes. For example a mother may not report her husband for domestic violence if she is afraid that the father of her children and her only means of support will be deported. The same reasoning may prevent an elder person from reporting a child who is abusing her or a neighborhood kid who is writing graffiti on the walls.

A thirteen year old boy punched a schoolmate and stole forty-six cents from him. Proper punishment–some time in youth hall maybe. Counseling–perhaps. But in this case the fourteen year old, his mother and his brother, but not his stepfather who is a US citizen were almost deported when it was discovered that their visa had expired.

San Francisco Mayor Gavin Newsom instituted a new policy under which every juvenile alleged to have committed felonious conduct and who was in the country illegally is reported to Homeland Security for deportation. No conviction is necessary. So when the boy was arrested and charged with robbing forty-six cents the Juvenile Probation Department reported it to Homeland Security and the kid, his mother and his five year old brother were ordered to leave the country by March 5. Luckily some strings were pulled in Washington and the deportation order was delayed. Yesterday it was announced that the family had been given green cards and would not be deported.

The ironic part of this is that the boy’s mother, Tracey Washington is married to Charles Washington, a Municipal Bus driver and a United States citizen. Therefore she and her children are eligible for citizenship.

As Charles Washington pointed out after it was announced that his family would be allowed to remain in the country, in a letter to Newsom

“Your policy hurts families and tears children away from their parents for minor, first-time offenses,” Charles Washington, a Muni bus driver, said in a letter to the mayor.

“Our family’s luck in this case was unique, but Mr. Newsom, the pain we felt when our family was facing deportation as a result of your policy is not unique.”

Other consequences are that children who have spent most of their life in this country are deported to countries where they cannot speak the language. Children may be deported, without their parents to countries where they do not have family or know anyone. The Board of Supervisors pass legislation rejecting the mayor”s policy. But Newsom vetoed it. The Board overrode the veto but Newsom has refused to enforce the legislation.

One of the hardest things for a criminal defense attorney to do is to deal with with non-citizen clients. Often they face deportation, exclusion, or denial of citizenship in addition to the normal punishment for a conviction. In the years I’ve been practicing I have represented numerous clients that immigrated to this country as young children with their families but have never become citizens. Many of them don’t even speak their “native” language. Many do not have any close family left in their “native” country. For many of these people the penalty of deportation is much greater than whatever time they are going to spend in jail or prison.

Of course I have other clients who after a brief period dealing with the criminal justice system tell me to get them back to their native country as fast as possible.

Then again I had a Mexican client. He plead guilty to a drug offense and the judge ordered that he be released on his own recognizance from jail at the time of his guilty plea. He was given a date for sentencing. But no one expected him to be there since he had an INS hold. I came to court on the day set for sentencing and he was not there. I asked the bailiff if he was in custody and I was told he had been released to INS. But as I was leaving the building–guess who walks in. He told me that he had been ordered back for sentencing on that date and he did not want a bench warrant. So he came back across the border and got to court only an hour late. He was sentenced. Pursuant to the plea agreement he did not do any more time in custody. Since he wasn’t in custody, the INS could not pick him up and he walked out the front door of the courthouse.

Generally ICE puts a hold on non-citizens when they are in custody. Americans know from watching too many police dramas on TV that anything you say to a peace officer can and will be used against you. Foreigners do not always know this and therefore many non-citizens make the fatal mistake of answering questions posed by ICE agents who meet them in the jail. By telling the agents their citizenship status or their place of birth they end up with an ICE hold. When this happens the jail must notify ICE when the foreign national is to be released. Then the jail or prison must hold the individual for five more days to allow ICE time to come and get him/her.

I had one client who was a French citizen. She was married to a US citizen and she could have become a US citizen is she tried. Despite (and perhaps because of) the fact that she was a drug addict and therefore subject to arrest and deportation, she never became a citizen. Eventually she was arrested with a significant amount of drugs on her. She was taken to jail and even though she was fairly smart she answered all of the questions posed by the ICE agent who put a hold on her. The ICE agents question foreign born prisoners before they are even arraigned and before they have a chance to talk to a lawyer and learn their right not to speak to the agent. My client was charged, convicted, and deported leaving her husband at least temporarily in this country.

What brings all of this up is a case out of the Fifth Circuit Court of Appeals. In Singh v. Holder the court held that a conviction for”wounding” under the laws of Virginia is an aggravated felony and a conviction for such resulted in this case in denial of citizenship.

Satbir Singh immigrated to this country in 1987. After he was here for a couple of months he was convicted of wounding in Virginia. Before he could be sentenced he returned to India. He was arrested when he reentered the country in 1998. After he was sentenced he applied for citizenship. It was denied on the basis of his conviction for an aggravated felony. He sued in the United State District Court. Summary judgment was granted to the defendants and he appealed to the Fifth Circuit.

An aggravated felony is inter alia “a crime of violence . . . for which the term of imprisonment [is] at least one year.” It includes many other offenses including those involving drugs, theft and firearms. (See USC Title 8, section 1101.)Wounding, under Virginia law, is

(a) an offense that has as an element the use, attempted use, or
threatened use of physical force against the person or property of
another, or
(b) any other offense that is a felony and that, by its nature, involves
a substantial risk that physical force against the person or property
of another may be used in the course of committing the offense.

The court did not have much trouble showing that wounding was an aggravated felony. But since the law took effect in 1990 a second question was raised in the appeal. Since the plea was before 1990 and the sentencing was after 1990 which date would be used. The Court did not have much trouble saying that the conviction date was the date of the sentence.

The Fifth Circuit upheld the summary judgment finding and he was correctly denied citizenship.

While this case does not involve deportation many do. Since denial of citizenship is an additional penalty, why should a non-citizen be punished more for the same criminal conduct that the citizen. This is particularly noticeable when the long term resident but non-citizen is deported. The penalty can be significantly more burdensome than the penalty for the same conduct committed by the citizen.