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#4828: Auguste comments on Toto Constant


Key words: Convicted, criminals, deportees, convicted aliens,  INS, removal 
proceedings, convictions, deportation.

Mr. Roody Barthelemy made a very good argument juxtaposing the removal of 
convicted aliens from the United States back into their place of origin, in 
this case Haiti, and the US position in shielding Toto Constant. However to 
avoid weakening this major theme of his posting it ought to be pointed out 
that the removed aliens are convicted of committing crimes in the United 
States while Toto Constant is accused of having committed crimes in Haiti and 
not while in the US.

Furthermore the Immigration and Nationality Act and its 1996 amendments by 
the Antiterrorism and Effective Death Penalty Act (AEDPA) and Illegal 
Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 targets 
criminals who also are (1) permanent residents (2) temporary "non-immigrant" 
student, visitor, worker, (3) temporary resident, pending approval for 
permanent status, or (4) undocumented.  

US citizens by birth or naturalization (the so called Haitian-Americans), are 
not subject to removal under the Act. 

There have been US citizens removed (hastily and erroneously) from the US 
pursuant to the INA of 1996. However once those removed under that law can 
prove to the US authorities that they are citizens of the United States they 
are entitled to be repatriated and that has recently taken place for an 
unfortunate young man removed out of Miami and who while in Haiti almost died 
for lack of medical attention and medication in relation to his medical 
status as an HIV infected person. His case was widely publicized in the Miami 
Herald of recent past. 

In closing I would like to add that removal does not always require a 
conviction. Some criminal-conduct grounds for removal in section 1227 (a) do 
not require the existence of a conviction. These include immigration 
offenses, such as: 

alien smuggling [See(Section 1227(a)(1)(E))(except of immediate relatives), 
marriage fraud (Section 1227(a)(1)(G)), and false claim of citizenship 
(Section 1227(3)(D)] 

and criminal acts relating to national security [See(Section 1227(a)(4)], 

violation of a domestic protective order [See(Section 1227(a)(2)(E)(ii)] 

and drug abuse or addiction. [See(Section 1227(a)(2)(B)(ii)] 

Since one cannot neatly package evidence of unadjudicated conduct into 
certified "pen packets" and copies of judgments and sentences, the INS 
usually relies on convictions to prove removability. A common exception, 
however, is evidence of immigration violations, such as marriage fraud and 
alien smuggling, developed by INS or Border Patrol investigations. 

Jean-Robert B. Auguste, Esq.