LAWFUL PERMANENT RESIDENTS MAY NOT BE ALLOWED TO POST BOND
PENDING DEPORTATION

The U.S. Supreme Court Case No. 01-1491 involves Mr. H.J. Kim, a Lawful Permanent Resident of the United States who came to the United States at the age of 8 years from South Korea and who has been convicted of a 1^st degree burglary in 1996 and petty theft in 1997. He served about 18 months in prison. Upon his release, he was immediately taken into immigration custody and detained without bond, pending his deportation processing. The United States Supreme Court held that the Immigration Service may hold a Lawful Permanent Resident for deportation without allowing him to post bond pending deportation.

Mr. Kim originally was charged under Section 236(c) of the Immigration & Nationality Act (INA) which permits deportation of immigrants convicted of an ?ggravated felony? The issue in this case was whether a Lawful Permanent Resident convicted of an aggravated felony can be detained, without a bond hearing, on his mandatory detention, regardless of whether he is of a flight risk or risk to the community.

Originally the United States District Court held that he was entitled to a hearing pending his deportation and allowed him to post a $5000.00 bond. This was also affirmed by the 9^th Circuit Court of Appeals. The United States attorney took an appeal to the U.S. Supreme Court, which has previously held that Congress has the power to regulate the entry and exit and flow of individuals in the United States. The U.S. Supreme Court has further held that this law complies with Congress interest in preventing criminal aliens from returning to their communities and committing criminal acts and/or fleeing to commit more criminal acts.

The attorney for Mr. Kim tried to point out to the U.S. Supreme Court that the deportation proceeding is a long process, and some individuals will be kept in jail for 17 months pending an immigration judge hearing to determine the exact question about whether they are, or in fact, deportable and whether they are eligible for any type of relief. However, despite all the arguments of the attorney, the U.S. Supreme Court held that aliens in the United States, even though they are Lawful Permanent Residents, can be held without bond, for deportation if they have been convicted of an aggravated felony.

Aggravated felonies include the following:

1. Burglary, rape, sexual abuse of a minor;
2. Illicit trafficking in a controlled substance such as marijuana, cocaine, heroin, etc.;
3. Illicit trafficking in any fire arm or destructive devices;
4. Any offense related to laundering of monetary instruments, if the amount of the funds exceeds $10,000.00;
5. Explosives, fire arms and arson offenses, including transportation or receiving of explosives to injure person or destroy property, using telephone or mail to threaten injury to person or property, etc.;
6. Any crime of violence for which the term of imprisonment is at least 1 year. (Hint: If the imprisonment is less than 1 year such as 364 days, it will not be considered an aggravated felony.)
7. Receiving of stolen property or burglary for which the imprisonment imposed is at least 1 year, regardless of any suspension of such imprisonment;
8. Ransom offenses using interstate wire to demand ransom or threaten kidnapping, or using mail to make threatening communications;
9. Receiving, possession or disposing of ransom money or property;
10. Child pornography offenses;
11. Racketeering offenses for which a sentence of 1 year imprisonment or more may be imposed;
12. Prostitution and slavery offenses;
13. National defense offenses including gathering, transmitting or losing defense information; disclosing classified information, injuring, destroying, contaminating or infecting war material or premises, and concealing and failing to disclose treason;
14. Fraud or deceit crimes for which the loss to the victim exceeds $10,000.00;
15. Income tax evasion where the loss to the government exceeds $10,000.00;
16. Alien smuggling, except in the case of a 1^st offense for which the person who committed the offense for the purpose of assisting or aiding a spouse, parent or child to violate the act;
17. Forgery of a passport or instrument and the term of imprisonment is at least 12 months, except if it is a 1^st offense, and the person was doing it for the purpose of assisting or aiding his or her spouse, child, or parent to violate the act;
18. Failing to appear to serve a sentence if the underlying offense is punishable by imprisonment for 5 years or more;
19. Commercial bribery, counterfeiting, forgery or trafficking in vehicles with altered I.D. numbers where the term of imprisonment is at least 1 year;
20. Perjury or Bribery of a witness for which the term of imprisonment is at least 1 year;
21. Failure to appear before a court to answer a felony charge for which the sentence of 2 years or more may be imposed;
22. Attempt or conspiracy to commit any of these acts committed within the United States with an intent to defraud more than $10,000.00 from an insurance company or bank;
23. Foreign convictions of all the above with a term of imprisonment was completed within the previous 15 years.

This is a partial list of most of the aggravated felonies for which an alien could be deported from the United States. It is important to note that the list above is only a general list and may not include every nuances or possible situations that would be exempt from the definition of aggravated felony. The analysis and suggestions offered in this article are not a substitute for the individual legal research and personalized representation with an attorney, which is essential in every case. The analysis and suggestions offered in this article further do not create a lawyer-client relationship.

If you have any questions regarding this article, please contact the Law Offices of Wellington Y. Kwan, Inc. by phone (213) 382-1888, by fax (213) 639-1670, by sending an email to info@wellingtonkwan.com, by visiting our website www.wellingtonkwan.com, or by visiting our office at 3580 Wilshire Blvd., Suite 1120, Los Angeles, CA 90010.

Wellington Y. Kwan is a Certified Immigration and Nationality Law Specialist certified by the California State Bar Board of Legal Specialization. Mr. Kwan speaks Mandarin and Cantonese. The Law Offices of Wellington Y. Kwan, Inc. has been serving the immigrant community for over 25 years.