What if he was a foreigner?

Thursday, January 20th, 2011
By: Jonathan MontagJ.D.

Darrell Issa

Darrell Issa is a Congressman from California’s 49th Congressional District, a district  to the North of the City of San Diego. He has held this seat for the last 10 years. A January 24, 2011, New Yorker Magazine article about Darrel Issa, states:

On March 15, 1972, three months after Issa allegedly stole Jay Bergey’s car and one month after he left the Army for the first time, Ohio police arrested Issa and his older brother, William, and charged them with stealing a red Maserati from a Cleveland showroom. The judge eventually dismissed the case.

While the Maserati case was pending, Issa went to college. Just before 11 P.M. on Friday, December 1, 1972, two police officers on patrol in the small town of Adrian noticed Issa driving a yellow Volkswagen the wrong way down a one-way street. The police pulled him over, and, as Issa retrieved the car registration, an officer saw something peculiar in the glove compartment. He searched it, and, according to the police report, found a .25-calibre Colt automatic inside a box of ammunition, along with a “military pouch” that contained “44 rounds of ammo and a tear gas gun and two rounds of ammo for it.” Issa was arrested for carrying a concealed weapon. The policeman asked why he was armed. “He stated in Ohio you could carry a gun as long as you had a justifiable reason,” the report said. “His justifiable reason was for his car’s protection and his.” Issa pleaded guilty to the lesser charge of possession of an unregistered gun. He paid a small fine and was sentenced to six months’ probation.

A conviction for a firearms offense makes a person removable under INA § 237(a)(2)(C). While in removal proceedings, persons subject to removability for a firearms offense are subject to mandatory detention. INA § 236(c)(1)(B). Mr. Issa is lucky as the mandatory detention statute did not kick in until October 9, 1998, and his 1972 conviction predates it.  He is eligible for Cancellation of Removal for Certain Permanent Residents, INA § 240A(a), which allows for forgiveness for an alien who has been in the United States for seven years after a lawful admission and has had permanent residence status for five years.

Under a quirk in the law, he would also be eligible for relief in the form of re-immigration. Because firearms offenses are not grounds of inadmissibility, he could seek a new permanent residence card through his wife or son, if they are citizens and if the son is at least 21 years old, i.e., immediate relatives.

Both Cancellation of Removal and adjustment of status are discretionary forms of relief. Immigration judges weigh positive and negative factors. They have wide latitude to explore all past misconduct, arrests, and law enforcement involvement in making their discretionary determinations. Being a Congressman is certainly a positive factor in his case. The fact that the crime occurred 38 years ago has no bearing on his being deportable — there are no statute of limitations on nearly all removability statutes. The lack of recency of the offense is a positive factor in his eligibility for relief. Posted January 20, 2011.



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