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 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 and the Illegal Immigration Reform and Immigrant Responsibility Act 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.

Background

The INA states that "he term 'alien' means any person not a citizen or national of the United States." The terms "inadmissible aliens" and "deportable aliens" are synonymous, which mainly refer to the INA violators among the 75 million or so foreign nationals who are admitted each year as guests, the 12 million or so illegal aliens, and the INA violators among the 300,000 or more foreign nationals who possess the temporary protected status.
A legal immigrant, particularly one who was admitted as a refugee pursuant to 8 U.S.C. § 1157, can either be a national of the United States or an alien, which requires a case-by-case analysis and depends mainly on the number of continuous years he or she has physically spent in the United States as a lawful permanent resident.

Firm resettlement of refugees in the United States

and the U.S. Congress have expressly favored some "legal immigrants" because the U.S. Attorney General had admitted them to the United States as refugees, i.e., people who experienced genocides in the past and have no safe country of permanent residence other than the United States. Removing such protected people from the United States constitutes a grave international crime, especially if they qualify as Americans or have physically and continuously resided in the United States for at least 10 years without committing any offense that triggers removability.
In 1982, the U.S. Supreme Court reminded all immigration officials that "once an alien gains admission to our country and begins to develop the ties that go with permanent residence, his constitutional status changes accordingly." That opinion was issued after Congress and the Reagan administration firmly resettled in the United States thousands of refugee families from totalitarian states, such as Afghanistan, Cambodia, Cuba, Laos, Vietnam, etc. As U.N.-recognized refugees, these people had permanently lost their homes, farms, businesses, properties, livelihood, families, relatives, pets, etc. They similarly lost their former nationalities after obtaining permanent resident cards of the United States, and thus gradually became like the rest of Americans.

Expansion of the definition of "nationals but not citizens of the United States"

In 1986, less than a year before the United Nations Convention against Torture became effective, Congress expressly and intentionally expanded the definition of "nationals but not citizens of the United States" by adding paragraph to 8 U.S.C. § 1408, which states that:
The natural reading of § 1408 demonstrates that it was not exclusively written for the 55,000 American Samoans but for all people who statutorily and manifestly qualify as "nationals but not citizens of the United States." This means that any person who can show by a preponderance of the evidence that he or she meets the requirements of 8 U.S.C. §§ 1408, 1427, 1429, 1436, and/or 1452, is plainly and unambiguously an American. Such person must never be labelled or treated as an alien. "Deprivation of nationality|—particularly United States nationality law|American , which is one of the most valuable rights in the world today—has grave practical consequences." This legal finding "is consistent with one of the most basic interpretive canons, that a statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant." Under the well known Chevron doctrine, "f the intent of Congress is clear, that is the end of the matter, for the court as well as the must give effect to the unambiguously expressed intent of Congress."

Introduction and amendment of the term "aggravated felony"

In 1988, Congress introduced the term "aggravated felony" by defining it under 8 U.S.C. § 1101, 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 of said "15 years", a longtime LPR automatically becomes entitled to both cancellation of removal and a waiver of inadmissibility. He or she may 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 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.

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:
Despite what President Clinton said in the above directive, some plainly incompetent immigration officers began deporting longtime LPRs. 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 any offense that triggers removability. This appears to be the reason why the permanent resident 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 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:
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 to remain in the United States. It can be requested from anywhere in the world via mail and/or electronic court filing, and the case can be filed in any court the alien 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. §§ 1252, 1252, 1252, 1252, 1252 and 1252. When these specific provisions are, all other contrary provisions of law, especially § 1252 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. If he or she does then dismissing the case for lack of jurisdiction or relief is plainly to the United States. The Supreme Court has pointed out in 2009 that "the context surrounding IIRIRA's enactment suggests that § 1252 was an important—not a superfluous—statutory provision." In this regard, Congress has long warned every public official by expressly stating the following:
According to § 1252, "no court " is authorized to determine which two or more people in removal proceedings should be recognized as nationals of the United States. This includes parents and children or relatives. The remaining courts, however, are fully empowered by §§ 1252, 1252 and 1252 to, inter alia, issue an injunction to cancel or terminate any person's removal proceedings; return any previously removed person to the United States; and/or to confer United States nationality upon any person. In addition to that, under, any immigration official mentioned in may at any time move to: terminate the removal proceedings of any person who turns out to be an American; or cancel the removal proceedings of anyone who is clearly not "removable" under the INA. The burden of proof is on the alien to establish a prima facie entitlement to re-admission after the deportation has been completed.

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 defendant's 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:
It is important to note that a court cannot defy a clearly-established law. Under the INA, a crime must be punishable by imprisonment for a term "exceeding" one year in order to be considered a conviction of a "crime involving moral turpitude" or an aggravated felony. Anything to the contrary will lead to an absurd result and a blatant violation of the U.S. Constitution. Plus, it will damage the reputation of the appellate court, which suppose to play a more neutral role in removal proceedings under the INA because they are obviously not criminal proceedings. Congress has long stated in that "he term classes of offenses under United States federal law| does not include... any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less." This expressed language of Congress was in effect in 1988 and is still in effect today.
Section 921 applies to the entire Chapter 44 of title 18. As such, § 921 controls 8 U.S.C. § 1101, especially subparagraphs,,,,, and. Under § 921, Congress says this: "What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held." This simply means that the federal felony definition controls in all immigration-related cases. More importantly, in , Congress expressly states: "No provision of shall be construed as indicating an intent on the part of the Congress to occupy the field in which such provision operates to the exclusion of the law of any State on the same subject matter...." The phrase "o provision of this chapter" statutorily covers every crime of violence and theft. See also the below section: Comparison of an aggravated felony to a crime involving moral turpitude.

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. § 16." Later in the same year, the Third Circuit held that unintentional vehicular homicide is not an aggravated felony. In Leocal v. Ashcroft, 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..., that § 16 is unconstitutionally vague and, therefore, cannot be the basis for an aggravated felony."

Comparison of an aggravated felony to a crime involving moral turpitude

The term "crime involving moral turpitude" 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." 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 w convicted... did not exceed imprisonment for one year....". Any period of incarceration or confinement that was subsequently added due to probation/parole violation plainly does not count. If the total period served inside a penal institution was less than 180 days, the LPR is manifestly entitled to U.S. citizenship, provided that the remaining citizenship requirements are fulfilled. Such person may be naturalized at any time, whether in the United States or at any U.S. embassy around the world.
The consequences of making a crime an "aggravated felony" are far reaching. One major consequence is that, unlike the deportation ground for a CIMT, an aggravated felony does not necessarily have to be committed within five years from the alien's entry or admission into the United States to make him or her removable. An alien who cannot demonstrate U.S. nationality is removable even if the alien has committed an aggravated felony in a foreign country, either before or after entering the United States. In this regard, the INA expressly states the following:
8 U.S.C. §§ 1101 and "1252 should be interpreted to avoid absurd results." Section 1227 states that every "alien who is convicted of an aggravated felony at any time after admission is deportable.". It is obviously an absurd result to presume that the "15 years" in the above quoted provision applies only to those who were convicted of an aggravated felony in countries outside the United States. The plain language and skillful structure of the above quoted provision defeats that presumption because all the crimes enumerated in § 1101 are obviously in violation of the law of every country on earth. There are countless other cogent reasons why Congress never intended such a bizarre and unconstitutional result. It would basically mean that Congress is somehow advising admitted aliens to, inter alia, murder or rape a person in Mexico instead of the United States. It would ridiculously ban all LPRs but allow only illegal aliens convicted of aggravated felonies outside the United States to receive immigration benefits. The only logical explanation is that the above 15-year period equally all non-citizens against committing another aggravated felony.

Notwithstanding any other provision of law

"The ordinary meaning of 'notwithstanding' is 'in spite of,' or 'without prevention or obstruction from or by.'" Congress is clearly and unambiguously saying that the penultimate provision under § 1101, as quoted above, controls over the text of §§ 1101, 1158, 1225, 1226, 1227, 1228, 1229b, 1231, 1252, etc. "In statutes, the '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, , 405 , are statutorily not binding upon any agency or any court. Congress clearly spoken about this at 8 U.S.C. § 1252. Its intent was sufficiently shown when amending § 1252 during the enactment of the Real ID Act of 2005. There, it added "" 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 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 § 1252 to apply plenary power and de novo review. Even a high school student can understand that this particular INA provision automatically any deportation case, without the need to look at other provisions of law.

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 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, 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."

List of aggravated felonies