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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
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.