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However, while waiting to be sworn in, IIRAIRA was enacted and the INS reopened her naturalization application and denied it.The INS contends that she is an aggravated felony under INA §101(a)(43)(G) and even though there was no incarceration and a total suspension of her sentence.Under INA §101(a)(48), any suspension of the imposition or execution of that imprisonment or sentence in whole or parts does not count.The BIA in a recent decision interpreted this section by holding that an alien's term of imprisonment or sentence is determined by the period of confinement or incarceration ordered by court regardless of any suspension or withholding of execution.
These cases will shortly be litigated before the BIA and in federal courts nationwide.Under two precedential BIA decisions, one must undergo a two-prong test before applying the aggravated felony bar.First, one must determine whether the offense fall under INA §101(a)(43).The Atlanta District Office has and is taking the position that a battery and shoplifting misdemeanor conviction under the Georgia statute in some instances is an aggravated felony.In one acclaim case that appeared in the Atlanta Journal Constitution on June 12, 1998, a Nigerian woman was recently ordered deported by an Immigration Judge. She was convicted for shoplifting a .00 baby outfit and plead guilty pro se in 1994.
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The legislation had resounding bi-partisan backing and passed without incident.