Aggravated Felonies and Deportation

A primary purpose of U.S. immigration laws is to control the number and type of non-citizens who can be in the country. Among other things, these laws outline conduct that can disqualify non-citizens from getting permission to enter or remain in the U.S.

A key mechanism for enforcing the law against non-citizens already in the country is through their deportation. Under the law, one way such actions are justified is when the individual involved has been found to have committed various crimes. This report focuses on what are called "aggravated felonies" -- a single part of these laws. The subject of aggravated felonies is important because it is little understood outside a small community of immigration lawyers, judges and scholars, and yet affects the lives of tens of thousand of non-citizens who have entered the country legally. In addition, partly because of their complexity, aggravated felony matters have been the subject of much federal court litigation.

The Big Picture

Congress creates immigration law and policy through statutes. The primary immigration laws are contained in a statute known as the Immigration and Nationality Act (INA). Much of the enforcement of immigration laws is handled by the Department of Homeland Security (DHS), work that the Immigration and Naturalization Service used to perform until passage of the Homeland Security Act of 2002, which took effect in 2003. The Department of Justice administers the adjudication of the immigration laws, through a special group of immigration judges.

For most of its history, the US has maintained immigration laws to control which non-citizens are allowed to be in the US, for what reasons, for how long, and who can become US citizens. The Alien Act of 1798, known as the Alien and Sedition Laws, empowered the President to expel any alien, or non-citizen, he deemed dangerous. A general immigration law passed in 1882 called for the exclusion of "idiots, lunatics, convicts, and persons likely to become public charges." The 1882 law also banned Chinese immigrants. A 1917 law established a literacy requirement for admission to the country.

In 1952 the McCarran-Walter Act established the basic structure of today's immigration law, setting up deportation procedures, creating a quota system based on nationality, as well as detailed exclusions based on political grounds. Other major changes of the immigration laws have occurred in 1965, 1980, 1986, 1988, 1990, and 1996. Congress is again seriously debating major immigration revisions.

A bedrock rule of our immigration laws is that they do not apply to US citizens whether they became citizens by virtue of being born here, born elsewhere to US citizen parents, or through the process of naturalization. Regardless of the manner of obtaining citizenship, citizens are not subject to deportation and other restrictions of our immigration laws.

This of course means that all non-citizens who are in the country or who seek such immigration benefits as work and tourist visas are subject to these laws. Violations entail the possibility of not being able to come to the US or being forced to leave through a deportation process. Non-citizens are subject to deportation regardless of:

  • their immigration status
  • how long they have lived in the US or had any legal immigration status
  • the existence of immediate family members who are US citizens
  • the strength of their ties to the community.

The impacts of deportation can be severe, depending on the person and their circumstances. For those who are lawful permanent residents (green card holders), it can mean being forced off the path to citizenship. For persons who have lived in the US a long time, it can mean being uprooted from families and established communities. For most, deportation can result in long-term banishment from the US.

Overview of the Law

The immigration statute lists a number of types of activities that can make one "deportable". The primary ones relate to immigration violations, national security and terrorism activities, and criminal violations.

Instead of listing specific crimes that would make one deportable, Congress set out broad categories of criminal offenses that could make one subject to deportation. These include crimes of "moral turpitude", controlled substances and so-called "aggravated felonies." For instance, a non-citizen who has entered the country legally but who has a conviction under "any law relating to a controlled substance" is subject to deportation.

Some of the broad categories are not straightforward and often require detailed analysis to determine whether a person has run afoul of the deportation laws. A second problem is that certain key terms such as "moral turpitude," though generally referring to crimes involving dishonesty, immorality, or violence, are not defined in the law. As a result, the question of which criminal convictions involve an act of moral turpitude have been determined by court decisions. Analysis of these crimes is additionally complex because US law generally requires that they have been committed within five years of coming to the US and involve a potential sentence of at least one year.

Aggravated Felonies

Congress first created the concept of aggravated felony in the Anti-Drug Abuse Act of 1988 as part of a broader effort to combat narcotics trafficking. The three specific crimes listed in the original 1988 Act were, in fact, every bit as severe as the term indicates: murder, drug trafficking, and illegal trafficking in firearms and destructive devices. Those crimes were incorporated into the immigration statute.

How Often Is The
Aggravated Felony Statute Used?

Despite the interest in aggravated felonies, very little is currently known about how often aggravated felony provisions are in fact used. The government publishes no statistics on the number of individuals it has sought to deport, or actually deported, on aggravated felony grounds. A literature search has not turned up any other sources with relevant statistics. Accordingly, TRAC has been seeking data using the Freedom of Information Act (FOIA) to systematically piece together data to fill this void.

Presented here are data TRAC has obtained which detail part of the picture: use of aggravated felony charges in removal proceedings against 156,713 persons in immigration court. . .

See more...

Since then, subsequent legislation has expanded the definition of aggravated felony several times. Despite the aggravated felony label, many of these crimes have been interpreted by federal courts to include misdemeanors, even though misdemeanors are generally meant to encompass less serious or dangerous acts than crimes traditionally designated as felonies.

In December, 2005, the U.S. House passed a bill that, if it were to become law, would expand the reach of the statute even further.

With the rapid expansion of crimes which can be considered "aggravated felonies," the list of applicable crimes now includes both various criminal categories as well as specific crimes. The designation of some crimes as aggravated felonies depends on the length of sentence imposed or amount of money involved. Examples of listed aggravated felonies include:

  • a crime of violence for which the term of imprisonment is at least 1 year;
  • a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment is at least one year;
  • illicit trafficking in drugs, firearms, destructive devices, or explosive materials;
  • an offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000;
  • offenses related to alien smuggling (though some exceptions apply); and
  • murder, rape, or sexual abuse of a minor.
It is also an aggravated felony to attempt or conspire to commit an aggravated felony.

While the above examples of aggrevated felonies would seem to be severe offenses for which deportation is an appropriate punishment, in practice fairness is not always clear cut. A good example of this concerns Carlos Pacheco who entered the US with a green card as a 6-year old child. In 2000 a federal appeals court agreed that he was an aggravated felon based on his misdemeanor conviction in Rhode Island for stealing some Tylenol and cigarettes. In doing so, the court expressed its own "'misgivings' that Congress, in its zeal to deter deportable non-citizens from re-entering this country", equated misdemeanors with felonies. In this case, the immigration consequences were much more severe than the criminal consequences.

Challenges to Aggravated Felonies

In recent years, the federal courts have heard many appeals from non-citizens challenging the government's decisions classifying their crimes as aggravated felonies. Even while upholding many individual aggravated felony rulings, the courts have from time-to-time directly criticized the arbitrary nature of the law upon which these rulings were based. One such problem area, for example, involves the provision that authorizes the government to use certain misdemeanor charges when determining that an individual was eligible for treatment as an aggravated felon.

  • In 2001, a federal appeals court agreed with DHS that due to a conviction for a misdemeanor shoplifting crime, Alexander Christopher met the legal definition of an aggravated felon. The court ruled that the fact that his sentence was suspended was "irrelevant" but noted that Congress, in expanding the reach of aggravated felony provisions of the law, was "breaking the time-honored line between felonies and misdemeanors."
  • In 1999, a federal court upheld an aggravated felony designation for Winston Graham for the misdemeanor crime of petty larceny. The panel of judges said its hands were tied under the federal statute, calling it a "carelessly-drafted piece of legislation."

While non-citizens deemed to be aggravated felons frequently have one or more criminal convictions, those who appeal their cases are seeking to have their crimes categorized as a lower category of deportable offense. This would enable them, for the most part, to avoid some of the harsh legal consequences that aggravated felonies entail. Many of these appeals revolve around the subjective nature of whether an aggravated felony has been committed plus the circumstances surrounding the crime. For instance:

1. The terms for categories of crimes are open to interpretation. There usually is little ambiguity that someone convicted of murder is guilty of a "crime of violence," but in many other situations, the designation is far less clear. Judges across the country, for instance, have disagreed as to whether those pleading to a drunk driving charge are guilty of a crime of violence. Such a distinction may be critical when it comes to determining whether someone is an aggravated felon.

2. Aside from the crime itself, other elements of crimes can be subjective. Whether a crime is an aggravated felony may depend, not just on the crime itself, but also on the length of the actual sentence and (for theft and fraud cases), the dollar value involved. We have seen that misdemeanors, usually meant to signify a less serious crime than a felony, can be considered aggravated felonies in certain situations.

3. Another complicating factor is that most offending immigrants are prosecuted under state laws while many of the aggravated felony provisions are defined in terms of federal criminal statutes. Required elements at the state level often do not parallel those at the federal level. The U.S. Supreme Court is now considering a case where a person was convicted as a felon for violating a state law against possession of drugs. But because this would only be considered a misdemeanor under federal law, there is disagreement as to which law should prevail.

4. Finally, there are disagreements among the 12 federal circuit courts on many of these issues. These inconsistent approaches to interpreting what crimes are and are not aggravated felonies is what motivated the Supreme Court to step into this complicated area of the law.

Impacts of Aggravated Felonies

As mentioned, aggravated felony decisions tend to be heavily litigated in part because of legal consequences of aggravated felonies. These consequences tend to be more severe on the life and rights of these non-citizens than if their conduct was considered deportable on other grounds. These consequences include:

1. Ineligible to stop deportation. Many other deportable offenses allow a non-citizen to be able to apply for "waivers", or exceptions, to deportation. But no exceptions are available to aggravated felons.

2. Unable to apply for other legal immigration status. Many persons with other violations, including some criminal violations that make them deportable, remain eligible to apply for asylum, lawful permanent residence (green card), and other routes to legal status spelled out in the INA if they meet other qualifications. Aggravated felons are disqualified from almost every provision of the law that would enable them to legalize their status or to retain existing legal status, such as a green card.

3. Guaranteed to be detained. Aggravated felons, in addition to several other types of non-citizens, fall within the INA's "mandatory detention" provisions. This means that most will be detained until DHS is able to effect their deportation.

4. Less access to immigration court. For the most part, non-citizens can only be deported after an Immigration Judge conducts a hearing and signs an "order of removal (deportation)". However, the INA allows DHS to deport aggravated felons who are not green card holders "administratively", that is, within the agency without having to take the case before an Immigration Judge.

5. Less access to federal appeals courts. Aggravated felons are among a group of deportable non-citizens who have fewer legal rights to request a federal judge hear their case on appeal.

6. Permanent ejection from the US. Most non-citizens who are deported from the US are not eligible to apply to return legally to the country for a period of from five to 20 years depending on their circumstances. But aggravated felons are permanently disqualified from ever returning to the US for any reason.