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Rehabilitative Statutes In Immigration Laws (thoughts)

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  • Kollerkrot
    replied
    I see.

    As to the case I sited. This case has in the meantime been expunged. In fact, as per the Attorney General of that European Country, it is against the law of the land to uphold this in the court of law or use it to the disadvantage of the concerned.

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  • scribbles
    replied
    <BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by Kollerkrot:
    Do you know how this one ended? How did the BIA or the IJ treat that particular instance? </div></BLOCKQUOTE>

    This hasn't been tried yet.

    Leave a comment:


  • Kollerkrot
    replied
    Do you know how this one ended? How did the BIA or the IJ treat that particular instance?

    Leave a comment:


  • scribbles
    replied
    <BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by Kollerkrot:
    But wasn't there just recently precedence set in the case of Lopez vs. Gonzales before the Supreme Court?

    I know of a case that was prosecuted in Europe. A true such misdemeanor substance case, that ended up in a fine of approx. $1000.00. The laws of Europe are different – no doubt about it and can convict on solely statements. This conviction and fine, however, was based on only a statement in which the later convicted stated that he did certain things in the past. No substance (except in words) was ever involved. Well, to make my point: if the USCIS considers cases as if they would have happened here and treats them "what if" this would have happened in a federal jurisdiction", logic tell me that this particular conviction would have never made to the courts to begin with, because it was based on solely a statement.

    I am very interested in the outcome of that one, even today, before any rehabilitative measures would be enacted. </div></BLOCKQUOTE>

    That sounds very interesting.

    I know of a case in Europe where a person was held in pretrial interrogations due to another persons allegations against him. The police had the authority to keep him jailed for up to 3 months just for interrogation! The crime he was accused of would at most give a penalty of a probationary sentence and a small fine. Thus it was more beneficial for the person to simply confess in order to be released immediately and to pay a fine in order of about $200. The fine being so small, it wasn't in his interest to even hire a lawyer for his defense in the court since that would've cost him around $1000. The person asserts that he was actually innocent of the accused crime, but would have lost his job and livelihood had he remained in pretrial imprisonment for up to 3 months (pretrial jailing of this duration is common in his country). In the end he asserted his innocence for one week, but then gave the confession in order to be released.

    The courts considered his confession reliable and convicted him of the crime. The consequences were negligible in his home country, and the record of conviction was to be expunged in 5 years automatically.

    When applied to the US law, the case becomes quite complex because you have his confession from the pretrial investigation. Thus it's likely seen that he would've also been convicted in the Federal Court due to the confession. However, does this satisfy the "what if" determination to its full extent? No, because the procedures in the US would've been completely different to begin with, and had he faced Federal charges with substantial penalties, the person likely wouldn't have confessed to a crime he claims he didn't commit.

    How do you then satisfy the "what if" in appropriate way? It becomes almost impossible considering the multitude of different jurisdictions and their nuances.

    Leave a comment:


  • Kollerkrot
    replied
    But wasn't there just recently precedence set in the case of Lopez vs. Gonzales before the Supreme Court?

    I know of a case that was prosecuted in Europe. A true such misdemeanor substance case, that ended up in a fine of approx. $1000.00. The laws of Europe are different – no doubt about it and can convict on solely statements. This conviction and fine, however, was based on only a statement in which the later convicted stated that he did certain things in the past. No substance (except in words) was ever involved. Well, to make my point: if the USCIS considers cases as if they would have happened here and treats them "what if" this would have happened in a federal jurisdiction", logic tell me that this particular conviction would have never made to the courts to begin with, because it was based on solely a statement.

    I am very interested in the outcome of that one, even today, before any rehabilitative measures would be enacted.

    Leave a comment:


  • scribbles
    replied
    <BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by Kollerkrot:

    But wasn't there just recently precedence set in the case of Lopez v. Gonza*** before the Supreme Court? </div></BLOCKQUOTE>

    His crime was only a misdemeanor when the Federal Law was applied, not a felony as usually required for Aggravated Felony definition. Also he only aided someone else in possession of cocaine without selling it to them personally. Thus, the person basically won by technicality, because technically speaking "aiding" someone else in possession is not the same as trafficking, which involves commercial dealing.

    In my opinion he clearly had a lawyer defending him that was aware of the immigration consequences, and appropriately defended his crime by spinning the terminology used in such a way that it could be won by technicality.

    He was also already a permanent resident, so there is some additional relief available to them. In this case, a cancellation of deportation.

    I personally don't think this is all that great however, because I don't think people should have to resort to winning by technicality, but the law itself should be fair and common sense. This only helps in such a way that lawyers defending their clients inside the US are able to spin their convictions to such terms that they don't serve as grounds for deportability.

    This likely won't help with for example foreign convictions since obviously they were not defended with technicalities of the US Federal and immigration law in mind.

    Leave a comment:


  • scribbles
    replied
    <BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by Kollerkrot:

    How come it is not compromising the US sovereignity when accepting foreign convictions. It just doesn't make sense, that the INA would have the power to condemn someone for the rest of their life, when all the world would accept an expungement. I shall view this as most arrogant and inhumane! </div></BLOCKQUOTE>

    Thus far US is the only country I've seen that has such an immigration law. Every other country has both individual discretion and rehabilitative statutes available. Also certain countries (like Japan for example) won't recognize foreign convictions at all.

    Leave a comment:


  • scribbles
    replied
    I should note that the 15 year rule with aggravated felonies applies only to foreign convictions. So with convictions that happened in the US, there is no relief available. But although the crime ceases being an aggravated felony, it doesn't necessarily remove all or any of the immigration consequences.

    I wouldn't have so much of a problem with not accepting the expungements as long as there was a comprehensive rehabilitation statute to replace this notion. So if they're not willing to consider rehabilitative measures of other jurisdictions, at least provide an alternative!

    There is a conflict with both State and foreign courts when applying the immigration law. A person might be facing at most misdemeanor charges in either court, and it would not be in his interest to for example spend money on his defense when that could cost thousands, and accepting the sentence might at most be a fine of a few hundred dollars. Thus a person might just accept the sentence with no serious regard to it.

    Then the immigration courts suddenly determine "what if" this was prosecuted under the Federal Law. The whole notion of "what if" is very questionable, as the likely sentence is much higher than in State or foreign courts. So his misdemeanor might suddenly become a felony, and he will never have the chance to defend himself with appropriate seriousness. So in effect, the "what if" notion doesn't take into account that had it happened in the Federal Court, the person would've defended himself appropriately with the applicable laws and sentences in mind.

    And with for example substance offenses, any substance offense that becomes a felony under Federal Law, even if it was a misdemeanor in the State Court, is now Aggravated Felony in the immigration law. This is considered a "particularly serious offense". Thus it is categorized together with crimes such as murder, and will forever prohibit the person from immigrating to the US, and if the person is currently in the US, will cause him to be deported regardless of ANY possible hardship it might cause to his family, and even if the person was an asylum seeker and might be tortured or killed once returned to his home country. Compare this to the fact that the person was in reality only convicted of a misdemeanor!

    I understand that no law can be perfect, mistakes do happen and these issues are often complex. But this should be recognized by the immigration and eventual relief should be made available. Also deportation should be reserved only for truly grave offenses such a murder.

    None of these issues are being addressed by the Comprehensive Immigration Reform Act!!!

    Leave a comment:


  • Kollerkrot
    replied
    <BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by Someone12:
    who gives a shred of sauerkraut what you 'view' as most arrogant and inhumane.... </div></BLOCKQUOTE>

    ....even Gods fight to stupidity to no avail - Friedrich Schiller!!

    Leave a comment:


  • Guest's Avatar
    Guest replied
    who gives a shred of sauerkraut what you 'view' as most arrogant and inhumane....

    Leave a comment:


  • Kollerkrot
    replied
    <BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by scribbles:
    <BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by scribbles:
    Thanks for the good reply Houston!

    I remember the courts ruling foreign expungements not applicable also because that would "compromise the sovereignty of the US" as it granted authority to foreign courts to make certain aliens admissible.

    I believe the 212(h) is also not available for many substance convictions except perhaps for simple possession? At least it doesn't seem to be valid for 212(a)(2)(C) even when small amounts are involved. This extremely harsh treatment of substance offenses is troubling, as there seems to at least be some sort of waiver or relief available for almost all other common types of offenses. And 212(a)(2)(C) doesn't even require for the alien to have been actually convicted!

    What comes to the Democrat Congress now. Are you hopeful that some substantial modifications are passed with these issues in mind? I've reviewed the Immigration Reform Act of 2006 and I believe the 2007 one to be very similar, and they don't seem to really address these issues much. I noticed that the definition of aggravated felony has been changed to one that "occurred within the past 15 years", which would indicate a form of rehabilitation after that period. However, this is not applicable to offenses that happened before enactment of this law, and again 212(a)(2)(C) seems to remain a completely separate provision for relief purposes as it's simply excluded from the waivable grounds, so this change doesn't provide any relief for the people today. The 2002 draft of this bill was much more comprehensive and I would like to see that one re-introduced, however I don't know if that's realistically going to happen. </div></BLOCKQUOTE>

    I have to correct myself there, the 15 year rule with aggravated felonies already exists and is not new in the Immigration Reform Act of 2006. </div></BLOCKQUOTE>

    &gt;&gt; I remember the courts ruling foreign expungements not applicable also because that would "compromise the sovereignty of the US" as it granted authority to foreign courts to make certain aliens admissible. &lt;&lt;

    How come it is not compromising the US sovereignity when accepting foreign convictions. It just doesn't make sense, that the INA would have the power to condemn someone for the rest of their life, when all the world would accept an expungement. I shall view this as most arrogant and inhumane!

    Leave a comment:


  • scribbles
    replied
    <BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by scribbles:
    Thanks for the good reply Houston!

    I remember the courts ruling foreign expungements not applicable also because that would "compromise the sovereignty of the US" as it granted authority to foreign courts to make certain aliens admissible.

    I believe the 212(h) is also not available for many substance convictions except perhaps for simple possession? At least it doesn't seem to be valid for 212(a)(2)(C) even when small amounts are involved. This extremely harsh treatment of substance offenses is troubling, as there seems to at least be some sort of waiver or relief available for almost all other common types of offenses. And 212(a)(2)(C) doesn't even require for the alien to have been actually convicted!

    What comes to the Democrat Congress now. Are you hopeful that some substantial modifications are passed with these issues in mind? I've reviewed the Immigration Reform Act of 2006 and I believe the 2007 one to be very similar, and they don't seem to really address these issues much. I noticed that the definition of aggravated felony has been changed to one that "occurred within the past 15 years", which would indicate a form of rehabilitation after that period. However, this is not applicable to offenses that happened before enactment of this law, and again 212(a)(2)(C) seems to remain a completely separate provision for relief purposes as it's simply excluded from the waivable grounds, so this change doesn't provide any relief for the people today. The 2002 draft of this bill was much more comprehensive and I would like to see that one re-introduced, however I don't know if that's realistically going to happen. </div></BLOCKQUOTE>

    I have to correct myself there, the 15 year rule with aggravated felonies already exists and is not new in the Immigration Reform Act of 2006.

    Leave a comment:


  • scribbles
    replied
    Thanks for the good reply Houston!

    I remember the courts ruling foreign expungements not applicable also because that would "compromise the sovereignty of the US" as it granted authority to foreign courts to make certain aliens admissible.

    I believe the 212(h) is also not available for many substance convictions except perhaps for simple possession? At least it doesn't seem to be valid for 212(a)(2)(C) even when small amounts are involved. This extremely harsh treatment of substance offenses is troubling, as there seems to at least be some sort of waiver or relief available for almost all other common types of offenses. And 212(a)(2)(C) doesn't even require for the alien to have been actually convicted!

    What comes to the Democrat Congress now. Are you hopeful that some substantial modifications are passed with these issues in mind? I've reviewed the Immigration Reform Act of 2006 and I believe the 2007 one to be very similar, and they don't seem to really address these issues much. I noticed that the definition of aggravated felony has been changed to one that "occurred within the past 15 years", which would indicate a form of rehabilitation after that period. However, this is not applicable to offenses that happened before enactment of this law, and again 212(a)(2)(C) seems to remain a completely separate provision for relief purposes as it's simply excluded from the waivable grounds, so this change doesn't provide any relief for the people today. The 2002 draft of this bill was much more comprehensive and I would like to see that one re-introduced, however I don't know if that's realistically going to happen.

    Leave a comment:


  • Houston
    replied
    This is a good post. While some of the information is not accurate, the post reflects the crude reality of immigration law when criminal issues are present.

    Under 212(h), discretionary relief is available 15 years after the commission of the disqualifying offense, regardless of any issues of hardship if the alien is rehabilitated. The relief is currently not available, and should remain unavailable, to those convicted of murder, rape and other very grave offenses.

    However, the real problem is the lack of proper balance that exist between criminal and immigration law resulting from numerous amendments, patches and additions that have unintentionally created serious issues of applicability. Criminal courts exist to consider each and every offense according to the criminal code and rules of criminal procedure established to resolve criminal matters in the best interest of society. The authority of a criminal court is primordial and incontestable when it comes to criminal issues however, considerations and determinations of the criminal courts are often discarded or ignored by immigration law. Under INA, a disqualifying misdemeanor and a disqualifying felony will be treated in a similar way when considering admissibility.

    One may think that this is completely irrelevant, but it raises issues worth mentioning. When it comes to mixed families, a minor conviction and its real implications under immigration law could result in forcing the U.S. citizen relatives to chose family or country. The Constitution protects against cruel and unusual punishment and exile is considered as such however, immigration law in all practicality often imposes exile upon citizens who are not guilty of any criminal offense and are not even prosecuted or tried as criminals.

    It's somewhat strange that immigration law considers foreign convictions valid, regardless of the integrity of the process, but declines to recognize foreign rehabilitation statutes questioning the "fairness and integrity" of these provisions. But note how foreign convictions of U.S. citizens are not considered when applying the "felon in possession" regulations.

    Some immigration statutes completely ignore rehabilitation, others ignore the fundamental presumption of innocence in the criminal context. Even in the world of civil litigation, it's the plaintiff who bears the burden of proof, but immigration law often ignores this principle. A person who used a controlled substance once, 30 years ago, is inadmissible even in the absence of a conviction, while a person convicted of assault is admissible the day he or she is released from custody.

    There's no balance between the real implications to society of the criminal or illegal activity and the actual immigration consequences resulting from such conduct. Immigration law fails to consider reality, not only from the criminal point of view, but also from a humane, family-oriented perspective.

    Congress now has a unique opportunity to change all this and design effective, enforceable and comprehensive law. The issues are many, and the topic controversial but the talent in Congress is abundant and it's trajectory impeccable, there's no reason to expect inaction given the great implications of the matter at hand. Let's just see what happens.

    Leave a comment:


  • scribbles
    replied
    <BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by Someone12:
    let all illegals 'rehabilitate' back in their own country...for about 10-20 years.... </div></BLOCKQUOTE>

    That is actually a quite reasonable proposition. Different people might have differing opinions about the exact length of the rehabilitation period, but I'm happy that you support the principle.

    Leave a comment:

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