Analyzing the mischief of Min Song
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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, 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

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