ⓘ Aggravated felony
The term aggravated felony was created by the United States Congress as part of the Immigration and Nationality Act to define a special category of criminal offenses. The INA says that certain aliens "convicted of an aggravated felony shall be considered to have been convicted of a particularly serious crime." Every "legal immigrant," including a "national but not a citizen of the United States," who has been convicted of any aggravated felony is ineligible for citizenship of the United States, and other than a refugee, every alien who has been convicted of any aggravated felony is ineligible to receive a visa or be admitted to the United States, if his or her "term of imprisonment was completed within the previous 15 years."
When the aggravated felony was introduced in 1988, it encompassed only murder and felony trafficking in drugs and/or firearms. Every aggravated felony conviction was manifestly a crime punishable by imprisonment for a term exceeding one year. The 1996 enactment of the Antiterrorism and Effective Death Penalty Act AEDPA and the Illegal Immigration Reform and Immigrant Responsibility Act IIRIRA tremendously expanded the aggravated felony definition by adding a great many more criminal convictions. All the aggravated felonies are enumerated in the chart at the very bottom.
1.1. Background Introduction and amendment of the term "aggravated felony"
In 1988, Congress introduced the term "aggravated felony" by defining it under 8 U.S.C. § 1101a, which was amended several times over the years. As of September 30, 1996, an "aggravated felony" only applies to convictions "for which the term of imprisonment was completed within the previous 15 years." After the successful elapse of said "15 years" i.e., without sustaining another aggravated felony conviction, a longtime LPR automatically becomes entitled to both cancellation of removal and a waiver of inadmissibility. He or she may at any time and from anywhere in the world request these popular immigration benefits depending on whichever is more applicable or easiest to obtain.
The phrase "term of imprisonment" in the INA expressly excludes all probationary periods. Only a court-imposed suspended sentence i.e., suspended term of imprisonment is included, which must be added to the above 15 years, and it makes no difference if the aggravated felony conviction was sustained in Afghanistan, American Samoa, Australia, Canada, Mexico, the United Arab Emirates, the United Kingdom, the United States, or in any other country or place in the world.
2. Consequences of an aggravated felony conviction
In February 1995, while IIRIRA was being prepared, U.S. President Bill Clinton issued an important directive in which he expressly stated the following:
Our efforts to combat illegal immigration must not violate the privacy and civil rights of legal immigrants and U.S. citizens. Therefore, I direct the Attorney General, the Secretary of Health and Human Services, the Chair of the Equal Employment Opportunity Commission, and other relevant Administration officials to vigorously protect our citizens and legal immigrants from immigration-related instances of discrimination and harassment. All illegal immigration enforcement measures shall be taken with due regard for the basic human rights of individuals and in accordance with our obligations under applicable international agreements. emphasis added.
Despite what President Clinton said in the above directive, some plainly incompetent immigration officers began deporting longtime LPRs i.e., potential Americans. Many of these legal immigrants were firmly resettled and non-deportable refugees, who statutorily qualified as Americans after continuously residing in the United States for at least 10 years without committing in such years any offense that triggers removability. This appears to be the reason why the permanent resident card green card is valid for 10 years. It was expected that all refugees in the United States would equally obtain U.S. citizenship within 10 years from the date of their lawful entry, but if that was unachievable then they would statutorily become "nationals but not citizens of the United States" after the successful elapsing of such continuous 10 years. This specific class of people owe permanent allegiance solely to the United States, and that obviously makes them nothing but Americans. Anything to the contrary leads to "deprivation of rights under color of law," which is a federal crime.
An aggravated felony conviction affects both aliens and "nationals but not citizens of the United States." However, unlike a "national but not a citizen of the United States," an alien convicted of any aggravated felony statutorily becomes "removable" from the United States, but only if his or her "term of imprisonment was completed within the previous 15 years." In other words, such alien cannot:
- have his or her removal proceedings terminated without a written legal order issued by any immigration judge or member of the BIA, or an injunction issued by any federal judge.
- be admitted to the United States prior to being granted a waiver of inadmissibility or cancellation of removal by any authorized U.S. immigration official, or "a full and unconditional pardon by the President of the United States or by the Governor of any of the several States."
- obtain asylum in the United States unless he or she was previously admitted to the United States as a refugee, or his or her aggravated felony was shown not to be a particularly serious crime. An alien convicted of a particularly serious crime may still receive asylum, so long as he or she is not "a danger to the community of the United States," or at minimum deferral of removal under the CAT. It must be added that granting the CAT is not discretionary but statutory and mandatory.
- obtain adjustment of status unless he or she was previously admitted to the United States as a refugee.
- obtain voluntary departure.
2.1. Consequences of an aggravated felony conviction Challenging an aggravated felony charge
An "order of deportation" may be reviewed at any time by any immigration judge or any BIA member and finally by any authorized federal judge. Particular cases, especially those that were adjudicated in any U.S. district court prior to the enactment of the Real ID Act of 2005, can be reopened under Rule 60 of the Federal Rules of Civil Procedure. The review of the order does not require the alien or the American to remain in the United States. It can be requested from anywhere in the world via mail and/or electronic court filing ECF, and the case can be filed in any court the alien or the American finds appropriate. In other words, if one court refuses help, he or she may proceed to another.
Every United States nationality claim, illegal deportation claim, CAT or asylum claim, etc., is adjudicated under 8 U.S.C. §§ 1252a4, 1252b4, 1252b5, 1252d, 1252e4B and 1252f2. When these specific provisions are invoked, all other contrary provisions of law, especially § 1252b1 and any related case law, must be disregarded because these three claims manifestly constitute exceptional circumstances. In removal proceedings, the focus is solely on whether or not the person belongs in the United States as a matter of law. If he or she does then dismissing the case for lack of jurisdiction or delaying relief is plainly detrimental to the United States. The Supreme Court has pointed out in 2009 that "the context surrounding IIRIRAs enactment suggests that § 1252f2 was an important - not a superfluous - statutory provision." In this regard, Congress has long warned every public official by expressly stating the following:
Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be subject to specified criminal penalties.
According to § 1252f1, "no court other than the Supreme Court" is authorized to determine which two or more people in removal proceedings should be recognized as nationals of the United States Americans. This includes parents and children or relatives. The remaining courts, however, are fully empowered by §§ 1252b5, 1252e and 1252f2 to, inter alia, issue an injunction to cancel or terminate any persons removal proceedings; return any previously removed person to the United States; and/or to confer United States nationality upon any person but only using a case-by-case analysis. In addition to that, under 8 C.F.R. 239.2, any immigration official mentioned in 8 C.F.R. 239.1 may at any time move to: 1 terminate the removal proceedings of any person who turns out to be an American; or 2 cancel the removal proceedings of anyone who is clearly not "removable" under the INA. The burden of proof is on the alien or the American to establish a prima facie entitlement to re-admission after the deportation has been completed.
3. Legal conflict between an aggravated felony and a misdemeanor
Under the INA, the term "sentence" explicitly refers to any form of punishment that must be served inside a prison. Any "street time" that was imposed as part of the defendants sentence plainly does not count as term of imprisonment. A sentence of imprisonment with parole is called a "bifurcated sentence," and various U.S. courts of appeals have held that this is not a suspended sentence. House arrest is also not imprisonment for INA purposes.
Courts have held that a misdemeanor conviction qualifies as an aggravated felony if the trial court or sentencing court orders at least one year of imprisonment. In this regard, Judge Becker of the Third Circuit had explained in 1999 the following:
The line between felonies and misdemeanors is an ancient one. The line has not always been drawn between one year and one year and a day, since it used to be that felonies were all punishable by death. Furthermore, under federal law, a felony is defined as a crime that has a maximum term of more than one year. Because, as the government contends, the amended statutes definition of an aggravated theft felony refers to sentences actually imposed and not to potential sentences, it is still possible for a o provision of this chapter" statutorily covers among many other crimes every crime of violence and theft. See also the below section: Comparison of an aggravated felony to a crime involving moral turpitude.
3.1. Legal conflict between an aggravated felony and a misdemeanor Precedents relating to "crime of violence" under U.S. law
In 2001, the Fifth Circuit held "that because intentional force against the person or property of another is seldom, if ever, employed to commit the offense of felony DWI, such offense is not a crime of violence within the meaning of 18 U.S.C. § 16b." Later in the same year, the Third Circuit held that unintentional vehicular homicide is not an aggravated felony. In Leocal v. Ashcroft 2004, the U.S. Supreme Court held that driving under the influence is not an aggravated felony if the DUI statute that defines the offense does not contain a mens rea element or otherwise allows a conviction for merely negligent conduct. In 2005, the Third Circuit held that a misdemeanor "simple assault" does not constitute an aggravated felony. "And the Supreme Court recently declared, in Sessions v. Dimaya. 2018, that § 16b is unconstitutionally vague and, therefore, cannot be the basis for an aggravated felony."
4. Comparison of an aggravated felony to a crime involving moral turpitude
The term "crime involving moral turpitude" CIMT refers to a specific conviction in which a court of law has imposed upon an alien a "term of imprisonment in excess of 6 months regardless of the extent to which the sentence was ultimately executed." Congress made a clear distinction between LPRs and "nonpermanent residents" in this regard. In the case of an LPR, the CIMT must be committed within 5 years of his or her admission to the United States. However, despite the obvious differences, both classes of aliens are statutorily entitled to a waiver of inadmissibility and cancellation of removal, so long as "the maximum penalty possible for the crime of which the alien shows which provision prevails in the event of a clash." Courts have long explained that "the phrase notwithstanding any other provision of law expresses the legislative intent to override all contrary statutory and decisional law."
What this means is that holdings such as Stone v. INS, 514 U.S. 386, 405 1995 case obviously decided prior to IIRIRA of 1996, which materially changed the old "judicial review provisions of the INA", are statutorily not binding upon any agency or any court. Congress clearly spoken about this at 8 U.S.C. § 1252d2 eff. April 1, 1997. Its intent was sufficiently shown when amending § 1252 during the enactment of the Real ID Act of 2005. There, it added "statutory or nonstatutory" after every relevant "notwithstanding any other provision of law" in § 1252. The overall purpose of this is obviously to protect the United States and the over 13 million LPRs against lawless government actions. In other words, the lives of these vulnerable people should not be in the hands of a few judges, who often make serious reversible errors in immigration-related cases. An unknown number of these LPRs statutorily qualify as Americans.
The job of Congress is to equally punish or protect everyone in the United States, not only those who merely possess a simple paper showing U.S. citizenship. In many cases, such documents are forged and/or criminally obtained. Congress instructed the courts by using plain language in § 1252f2 "Particular cases" to apply plenary power and de novo review. Even a high school student can understand that this particular INA provision automatically redresses any deportation case, without the need to look at other provisions of law.
5. Consequences of illegal re-entry after deportation
Every non-immigrant convicted of any aggravated felony and lawfully removed "must remain outside of the United States for twenty consecutive years from the deportation date before he or she is eligible to re-enter the United States." That stringent rule, however, does not apply to legal immigrants i.e., refugees and LPRs who have been deported as aggravated felons. Many previously removed people are believed to be residing inside the United States, some of whom have been removed from the United States about a dozen of times.
According to the INA, it is a federal crime for any non-criminal alien to illegally enter the United States after that alien has been denied entry, excluded, removed, deported, or if he or she has departed the United States while an order of removal was outstanding. The maximum sentence for this crime is 2 years of imprisonment. However, if he or she was a criminal alien and "whose removal was subsequent to a conviction for commission of three or more misdemeanors involving drugs, crimes against the person, or both, or a felony other than an aggravated felony, such alien shall be fined under title 18, imprisoned not more than 10 years, or both."
The penalty can be increased to as high as 20 years of imprisonment in the case of an alien who was convicted of a particularly serious crime or an aggravated felony and then illegally reentered the United States. Such penalty, however, is extremely rare since no alien has received that many years of imprisonment. Most defendants in such cases receive around 5 years of imprisonment. The only person saved from guilt and serving any imprisonment for illegal reentry after deportation is someone who "was not originally removable as charged, and so could not be convicted of illegal reentry."