Aggravated felony

An aggravated felony ("violent felony" or a "federal felony") is used in the United States immigration law to refer to a broad category of criminal offenses that carry certain severe consequences for aliens seeking asylum, legal permanent resident status, citizenship, or avoidance of deportation proceedings. When the category of "aggravated felonies" was first added to the Immigration and Nationality Act in 1988, as a response to a heightened concerns about drug abuse, it encompassed only murder and trafficking in drugs or firearms. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) both tremendously expanded the category. AEDPA added crimes related to gambling and passport fraud; IIRIRA added a great many more crimes, including certain crimes of a sentence of at least a year regardless of whether the sentence had been suspended. The following chart lists all current aggravated felonies: Template:Aggravated felony

Controversial issues involving aggravated felony

Although U.S. Congress made it perfecly clear that in order for any criminal offense to qualify as an "aggravated felony", it must be a "crime punishable by imprisonment for a term exceeding one year", some circuit courts have decided to ignore this. For example, in United States of America v. Winston C. Graham, 169 F.3d 787 (3rd Cir. 1999), the Third Circuit Court of Appeals held that the respondent's 1990 petit larceny, a Class A misdemeanor with a maximum of one year imprisonment under New York law, constitutes an aggravated felony.

"This case requires us to determine whether a misdemeanor can be an "aggravated felony" under a provision of federal law even if it is not, technically speaking, a felony at all. The particular question before us is whether petit larceny, a class A misdemeanor under New York law that carries a maximum sentence of one year, can subject a federal defendant to the extreme sanctions imposed by the "aggravated felon" classification. Despite our misgivings that, in pursuit of a clearly defined legislative goal (to severely punish unlawful reentry into this country), a carelessly drafted piece of legislation has improvidently, if not inadvertently, broken the historic line of division between felonies and misdemeanors, we conclude that Congress was sufficiently clear in its intent to include certain crimes with one-year sentences in the definition of "aggravated felony"..."

— Becker, Chief Judge, U.S. Court of Appeals for the Third Circuit

In the Matter of Crammond, 23 I&N Dec. 179 (BIA 2001), the respondent's California offense for sexual abuse of a minor constitutes an aggravated felony despite the fact that the respondent's conviction was reduced by the court to a misdemeanor punishable by no more than 1 year.

In Lopez v. Gonzales, 549 U.S. 47 (2006), the Supreme Court ruled that because immigration law is under the control of the federal government, the definitions of any terms on the aggravated felony list comes from federal law, not state law. This would mean that by applying the federal law both of the above decisions should and must be oveturned because under federal law a crime must be punishable by imprisonment for a term "exceeding" one year in order to be considered an aggravated felony.

In Leocal v. Ashcroft, 543 U.S. 1 (2004), the Court ruled that DUI 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.

An alien convicted of an aggravated felony may not:

• receive asylum in the United States
• become a citizen
• subsequently enter the United States
• have removal orders cancelled without specific authorization of the Attorney General

At the same time, aliens convicted of aggravated felonies are automatically deported through expedited procedures intended to ensure that the deportation occurs as soon as the alien is released from prison after serving the sentence imposed for the underlying crime. These deportation orders are not subject to review by the federal courts, although federal courts have ruled that they may determine which crimes constitute aggravated felonies.

IIRIRA required that aliens convicted of aggravated felonies must be detained while awaiting removal, resulting in the detention of far more aliens than before the Act took effect. In Demore v. Kim, 538 U.S. 510 (2003), the Court ruled that the mandatory detention provision of IIRIRA was constitutional.

The definition of aggravated felony has significantly expanded since its inception in 1988. A series of amendments have expanded its reach to the point that an aggravated felony need not aggravated, nor a felony, to trigger the consequences of such a conviction.

A related use of the term "aggravated felony" comes in the context of the definition of the crime of illegal reentry into the United States following deportation, 8 U.S.C. § 1326, and the corresponding sentencing enhancement provided by the Federal Sentencing Guidelines. It is a crime for an alien to enter or be found in the United States after that alien has been deported. The maximum sentence for this crime is 2 years; however, if that deportation follows a conviction for an aggravated felony, the maximum sentence increases to 20 years.

Furthermore, the guideline that corresponds to this crime typically doubles or triples the sentence the alien would otherwise have received if the deportation follows conviction for an aggravated felony. In Almendarez-Torres v. United States, 523 U.S. 224 (1998), the Supreme Court held that this increased maximum sentence did not violate the Sixth Amendment.

Comparison to crimes involving moral turpitude (CIMT)

The consequences of making a crime an aggravated felony are far reaching. One major consequence is that, unlike the deportability ground for a crime involving moral turpitude (CIMT), aggravated felonies do not have to be committed within five years after admission into the U.S. to give rise to deportability. (E.g. a Lawful Permanent Resident who was admitted into the U.S. as a small child and who commits an aggravated felony at age 60 becomes deportable).

Also, unlike the moral turpitude provision of the Immigration and Nationality Act, an aggravated felony makes a person deportable without regard to the actual or potential sentence attached to the conviction.

Sources

• Immigration Law and Procedure, 5th ed., by David Weissbrodt and Laura Danielson

External links

• When Misdemeanors are Felonies: The Aggravated Felony of Sexual Abuse of a Minor, by William J. Johnson, vol. 52, 2007/08.