At the Intersection of Immigration Law and Juvenile Justice
Part 1 of a 2-part Series

by C. Kevin Morrison1

The last decade of the 20th Century, and the first three years of the 21st, saw a dramatic rise in immigration. The number of immigrants rose from a rate of less than 500,000 per year through most of the post-World War II period to 1,800,000 in 1991.2 The numbers receded after 1991, but rose again to more than a million each year during 2000 and 2001.3 As the number of legal immigrants increased, so did the number of illegal immigrants. The number of aliens “removed” from the U.S. during the 1990s was four times the number removed during the 1980s.4

Significant numbers of those aliens, legal and illegal, have been within the ages of juvenile court jurisdiction, and some of those have been or will be the subject of juvenile court delinquency proceedings. Thus, a host of immigration-related issues may arise in many of the cases on a typical juvenile court prosecutor’s desk. For example, juvenile and criminal court actions can affect an alien’s right to remain in the U.S., since many crimes for which the alien might be prosecuted could also lead to deportation or exclusion. In addition, immigration advocates are increasingly using juvenile courts as a vehicle to prevent the removal of aliens in ways that might affect juvenile court proceedings. It is important, therefore, for juvenile prosecutors to have some basic knowledge of immigration considerations that may affect a delinquency proceeding.

This first of two issues of In Re… on immigration issues will address cases where a juvenile court adjudication or a criminal conviction may place a juvenile alien at risk of removal from the U.S. In the next issue, In Re… will consider the opposite circumstance, i.e. cases where juvenile court might serve as a vehicle to prevent the removal of a juvenile and permit him or her to gain permanent resident status.5

Deportation and Exclusion

The simplest and most straightforward way in which an immigration issue might arise in a delinquency proceeding is when a prosecutor learns that a juvenile respondent is “undocumented,” or entered the country illegally. The juvenile’s undocumented status makes him or her removable without regard to anything that happens in juvenile court.8 Nevertheless, many juvenile prosecutors from time to time will receive requests from defense counsel to dismiss or defer a case because the respondent or a family member is undocumented. The question for the juvenile prosecutor is whether there is a legal or ethical obligation to report the presence of an undocumented alien to the Bureau of Citizenship and Immigration Services (BCIS)7, and that is largely a matter of local practice and policy.9

Once an alien has been admitted to the country, either on a permanent basis (with a “green card”) or on “parole” while an application for admission or permanent status is pending, a criminal conviction can result in removal. The Immigration and Naturalization Act (INA) describes in broad language the crimes that can result in deportation, including “crimes of moral turpitude,” “aggravated felonies,” crimes “relating to a controlled substance,” and “domestic violence, stalking, and child abuse.” INA § 237, 8 U.S.C. § 1227. What offenses fit those categories is not always easy to determine, and has been the subject of much litigation and frequent appeals. Generally, state law will be used to define the elements of the offense with which the alien is charged, but federal immigration law will be used to determine whether a conviction has occurred,10 and whether the conviction is for an offense fitting the category of “crime of moral turpitude” or “aggravated felony” is a question of federal law.11 Thus, a state definition of an offense as “aggravated” will not necessarily control the immigration law question.12

Since most juvenile adjudications do not result in a “conviction,” a delinquency adjudication for most of the offenses identified in the statute will not make the juvenile removable.13 Juvenile court proceedings, therefore, will have little bearing on whether the juvenile can be removed under the criminal conviction ground. Waiver or transfer to adult criminal court is another matter. Since the immigration law makes no exception for juveniles under the statutes making convicted criminals removable, juvenile aliens convicted in adult criminal court face the same risk of removal as an adult convict. As a result, the juvenile prosecutor should expect a much more concerted effort either on the litigation front or in plea negotiation from counsel defending aliens subject to waiver/transfer.

The immigration laws are not silent on juvenile offenders, however. Some “crimes” or other bad acts that a juvenile might commit are grounds for removal without regard to whether they resulted in a criminal conviction. They include violation of a protective order, being “a drug abuser or addict,” trafficking in illegal substances (or being the son or daughter of an illegal trafficker), and prostitution, procuring prostitution, or engaging in other “commercial vice.”14 Since none of those “offenses” requires a conviction to bring about removal, a juvenile court adjudication (or any admissions the juvenile makes during the adjudication or disposition process) might establish the factual basis for a BCIS removal proceeding. In these instances the delinquency action may well have consequences beyond those contemplated in juvenile court, and prosecutors may want to consider those consequences in their charging decisions, plea negotiations, and other case management decisions.

Conclusion

The significant rise in immigration to the U.S., both legal and illegal, has proportionately increased the numbers of juvenile court respondents who might be subject to removal, depending on the outcome of their court proceeding. Certainly those immigration consequences are likely to be injected into any plea negotiations. Hence, to properly assess defense counsel’s claims and appeals, it is important to be familiar with which offenses might subject the respondent to immigration consequences, and which will not.

1 Senior Attorney, American Prosecutors Research Institute.

2 The immigration statistics stated here are from the 2000 and 2002 editions of the Yearbook of Immigration Statistics, published by the Bureau of Citizenship and Immigration Services. Both editions of the Yearbook are available on the BCIS Web site at http://www.immigration.gov/graphics/shared/aboutus/ statistics/ybpage.htm.

3 2002 Yearbook, Table 1.

4 From 1991-2000, 932,479 aliens were involuntarily removed from the U.S., compared to 232,830 who were removed from 1981-1990. See 2000 Yearbook, Table 63. In addition, from 1981-2000 more than 23,000,000 aliens “voluntarily” left the U.S. in lieu of formal removal or were apprehended by the Border Patrol and returned to their country.

5 Another important immigration issue pertinent to juvenile court prosecution, the requirement of consular notification when foreign nationals are detained, was covered in the Fall, 2000 issue of In Re…, and can be accessed via the Internet by following the NJJPC links at the APRI website, http://www.ndaa-apri.org/apri/index.html.

6 2002 Yearbook, Enforcement p. 8. Drug charges accounted for 41 percent of all removals on the ground of criminal conviction in 2002. Id.

7 The BCIS is the successor agency to the Immigration and Naturalization Service. The INS previously was a sub-agency of the U.S. Department of Justice, but earlier this year was transferred to the newly formed U.S. Department of Homeland Security. See Homeland Security Act of 2002, Pub. Law 107296.

8 Technically, undocumented aliens are “removed” because they are “inadmissible” rather than deported. Immigration and Naturalization Act § 212(a)(6)(A), 8 U.S.C. § 1182(a)(6)(A). Amendments to the INA in 1996 eliminated the previous distinctions between “deportation” proceedings and “exclusion” proceedings, and both are now combined into a single form of “removal” proceeding. Balogun v. U.S. Att’y Gen., 304 F.3d 1303, 130607 (11th Cir. 2002).

9 See, e.g., NDAA National Prosecution Standards 2nd Ed. ¶ 18.1 (“the prosecutor should cooperate with all applicable federal, state, and local prosecutorial entities in the investigation, charging, dismissal, or prosecution of cases which may be of concern to such entities.”)

10 See, e.g., In re Punu 22 I&N 224 (BIA 1998) (Texas deferred sentence constitutes a conviction under federal statute even though not considered a conviction under Texas law); In re Roldan, 22 I&N Dec. 512 (BIA 1999) (an expunged conviction can establish grounds for removal even though state law would not recognize conviction after expungement).

11 Franklin v. INS, 72 F.3d 571 (8th Cir. 1995); Cabral v. INS, 15 F.2d 193 (1st Cir. 1994).

12 C.f., U.S. v. Ramirez, __ F.3d __ (2d Cir. 2003) (state conviction for “simple cocaine possession” constituted an aggravated felony under sentencing guidelines in prosecution for illegal reentry after deportation).

13 In re De La Nues, 18 I&N Dec. 140 (BIA 1981); In re Ramirez-Rivero, 18 I&N Dec. 135 (BIA 1981). The principle that juvenile adjudications are not convictions under the deportation statutes dates back to at least the 1940s. E.g., In re M.U., 2 I&N Dec. 92 (BIA 1944). It has recently been reaffirmed even after enactment in 1996 of a broad definition of the word “conviction” in the INA. In re Devison-Charles, 22 I&N Dec. 1362 (BIA 2001) (continuing rule after enactment of 8 U.S.C. § 1101(a)(48)).

14 INA § 212, 8 U.S.C. § 1182.