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2013년 8월 24일 토요일

212(a) Inadmissibility Grounds & Waiver of Inadmissibility

Below are the various Section 212(a) inadmissibility grounds that can be found in the Immigration & Nationality Act (INA) section 212. If the inadmissibility ground is waivable, reference to the specific waiver of inadmissibility is also given.
Inadmissibility GroundsInadmissibility Grounds INA referenceWaiver of Inadmissibility for Immigrant VisaWaiver of Inadmissibility for Non-immigrant Visa
Communicable Disease212(a)(1)(A)(i)212(g)212(d)(3)
Lacking Required Vaccinations212(a)(1)(A)(ii)212(g)N/A
Physical or Mental Disorder212(a)(1)(A)(iii)212(g)212(d)(3)
Drug Abuser/ Drug Addict212(a)(1)(A)(iv)No Waiver Available212(d)(3)
Crime Involving Moral Turpitude (CIMT)212(a)(2)(A)(i)(I)212(h)212(d)(3)
Controlled Substance Violations (Drug Crimes)212(a)(2)(A)(i)(II)212(h) - but only for possession of 30g or less of marijuana212(d)(3)
Multiple Criminal Convictions212(a)(2)(B)212(h)212(d)(3)
Controlled Substance (Drug) Traffickers and their families212(a)(2)(C)(i)
212(a)(2)(C)(ii)		No Waiver Available212(d)(3)
Prostitution212(a)(2)(D)(i)212(h)212(d)(3)
Procuring a Prostitute212(a)(2)(D)(i)212(h)212(d)(3)
Asserted immunity from prosecution212(a)(2)(E)212(h)212(d)(3)
Espionage212(a)(3)(A)(i)No Waiver AvailableNo Waiver Available
Unlawful activity related to security212(a)(3)(A)(ii)No Waiver AvailableNo Waiver Available
Attempts to Overthrow the US Government212(a)(3)(A)(iii)No Waiver AvailableNo Waiver Available
Terrorist Activities212(a)(3)(B)No Waiver Available212(d)(3)
Foreign Policy212(a)(3)(C)No Waiver AvailableNo Waiver Available
Membership in Totalitarian Party212(a)(3)(D)212(a)(3)(D)(ii)
212(a)(3)(D)(iii)		N/A
Nazi Party212(a)(3)(E)(i)No Waiver AvailableNo Waiver Available
Genocide212(a)(3)(E)(ii)No Waiver AvailableNo Waiver Available
Public Charge212(a)(4)213212(d)(3)
221(g)
Labor Certification212(5)(A)N/AN/A
Unqualified Physician212(5)(B)No Waiver AvailableN/A
Uncertified Health Care Workers212(5)(C)No Waiver Available212(d)(3)
Aliens Present without Admission or Parole (EWI)212(a)(6)(A)VAWA: 212(a)(6)(A)(II)
Asylum: 208
Cancellation: 240A
AOS: 245(i)		N/A
Failure to Attend Removal Proceedings212(a)(6)(B)No Waiver Available212(d)(3)
Misrepresentation212(a)(6)(C)(i)212(i)
237(a)(1)(H)		212(d)(3)
False Claim to US Citizenship212(a)(6)(C)(ii)212(a)(6)(C)(ii)(II) for claims made prior to 1997212(d)(3)
Stowaways212(a)(6)(D)Asylum 208N/A
Smugglers212(a)(6)(E)212(d)(11)212(d)(3)
Civil Penalty under INA 247C212(a)(6)(F)212(d)(12)212(d)(3)
Student Visa Abusers212(a)(6)(G)No Waiver Available212(d)(3)
Documentation Requirement for Immigrants212(a)(7)(A)211
212(k)		N/A
Documentation Requirement for Nonimmigrants212(a)(7)(A)(B)N/A212(d)(4)
212(a)(7)(B)(iii)
212(a)(7)(B)(iv)
Immigrant Ineligible for Citizenship INA 314 or INA 315212(a)(8)(A)No Waiver AvailableN/A
Draft Evaders212(a)(8)(B)Carter Pardon212(d)(3)
Ordered Removed Upon Arrival212(a)(9)(A)(i)
212(a)(9)(A)(ii)		212(a)(9)(A)(iii)212(d)(3)
Unlawful Presence212(a)(9)(B)212(a)(9)(B)(v)212(d)(3)
Unlawful Presence after Prior Immigration Violation212(a)(9)(C)No Waiver Available212(d)(3)
Immigrant Polygamists212(a)(10)(A)No Waiver AvailableN/A
Guardian accompanying inadmissible helpless child212(a)(10)(B)N/AN/A
International Child Abduction212(a)(10)(C)No Waiver Available212(d)(3)
Unlawful Voter212(a)(10)(D)No Waiver Available212(d)(3)
Former Citizen who renounced to avoid taxes212(a)(10)(E)No Waiver Available212(d)(3)
Former Exchange Visitors212(e)I-612 WaiverI-612 Waiver
Individual who is detrimental to US interests212(f)No Waiver AvailableNo Waiver Available
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2013년 8월 10일 토요일

U.S. Code : Table of Contents

 
U.S. Code

U.S. Code : Table of Contents

Quick search by citation: Title:   Section:   

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2013년 8월 9일 금요일

101(a)(43)(A) - (U) - Aggravated Felony

101(a)(43)(A) - (U) - Aggravated Felony
SEC. 101 (a)(43)
The term "aggravated felony" means

(A) murder, rape, or sexual abuse of a minor;

(B) illicit trafficking in a controlled substance (as defined in section 102 of the Controlled Substances Act), including a drug trafficking crime (as defined in section 924(c) of title 18, United States Code);

(C) illicit trafficking in firearms or destructive devices (as defined in section 921 of title 18, United States Code) or in explosive materials (as defined in section 841(c) of that title);

(D) an offense described in section 1956 of title 18, United States Code (relating to laundering of monetary instruments) or section 1957 of that title (relating to engaging in monetary transactions in property derived from specific unlawful activity) if the amount of the funds exceeded $10,000;

(E) an offense described in

(i) section 842 (h) or (i) of title 18, United States Code, or section 844 (d), (e), (0, (g), (h), or (i) of that title (relating to explosive materials offenses);

(ii) section 922(g) (1), (2), (3), (4), or (5), 0), (n), (o), (p), or (r) or 924 (b) or (h) of title 18, United States Code (relating to firearms offenses);

(iii) section 5861 of the Internal Revenue Code of 1986 (relating to firearms offenses);

(F) a crime of violence (as defined in section 16 of title 18, United States Code, but not including a purely political offense) for which the term of imprisonment [is] at least one year;

(G) a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least one year;

(H) an offense described in section 875, 876, 877, or 1202 of title 18, United States Code (relating to the demand for or receipt of ransom);

(1) an offense described in section 2251, 2251A, or 2252 of title 18, United States Code (relating to child pornography);

(J) an offense described in section 1962 of title 18, United States Code (relating to racketeer influenced corrupt organizations), or an offense described in section 1084 (if it is a second or subsequent offense) or 1955 of that title (relating to gambling offenses) for which a sentence of one year imprisonment or more may be imposed;

(K) an offense that

(i) relates to the owning, controlling, managing, or supervising of a prostitution business;

(ii) is described in section 2421, 2422, or 2423, of title 18, United States Code (relating to transportation for the purpose of prostitution) if committed for commercial advantage; or

(iii) is described in section 1581, 1582, 1583, 1584, 1585, or 1588 of title 18, United States Code (relating to peonage, slavery, and involuntary servitude);

(L) an offense described in

(i) section 793 (relating to gathering or transmitting national defense information), 798 (relating to disclosure of classified information), 2153 (relating to sabotage or 2381 or 2382 (relating to treason) of title 18, United States Code;

(ii) section 601 of the National Security Act of 1947 (50 U.S.C. 421) (relating to protecting the identity of undercover intelligence agents); or

(iii) section 601 of the National Security Act of 1947 (relating to protecting the identity of undercover agents);

(M) an offense that

(i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; or

(ii) is described in section 7201 of the Internal Revenue code of 1986 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000;

(N) an offense described in paragraph (1)(A) or (2) of section 274(a) (relating to alien smuggling), except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien's spouse, child, or parent (and no other individual) to violate a provision of this Act;

(0) an offense described in section 275(a) or 276 committed by an alien who was previously deported on the basis of a conviction for an offense described in another sub-paragraph of this paragraph;

(P) an offence (i) which either is falsely making, forging, counterfeiting, mutilating, or altering a instrument in violation of section 1543 of title 18, United States Code, or is described in 1546(a) of such title (relating to document fraud) and (ii) for which the term of imprisonment is at least 12 months, except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien's spouse, child, or parent (and no other individual) to violate a provision of this Act.

(Q) an offense relating to a failure to appear by a defendant for service of sentence if the underlying office is punishable by imprisonment for a term of 5 years or more;

(R) an offense relating to commercial bribery, counterfeiting, forgery, or trafficking in vehicles the identification numbers of which have been altered for which the term of imprisonment is at least one year.

(S) an offense relating to obstruction of justice, perjury or subornation of perjury, or bribery of a witness, for which the term of imprisonment is at least one year;

(T) an offence relating to a failure to appear before a court pursuant to a court order to answer to or dispose of a charge of a felony for which a sentence of 2 years' imprisonment or more may be imposed; and

(U) an attempt or conspiracy to commit an offense described in this paragraph. The term applies to an offense described in this paragraph whether in violation of Federal or State law and applies to such an offense in violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years. Notwithstanding any other provision of law (including any effective date), the term applies regardless of whether the conviction was entered before, on, or after the date of enactment of this paragraph.
  
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Chapter 4: Permanent Bars to GMC

USCIS Policy Manual - Volume 12 - Part F - Chapter 4
Current as of June 10, 2013 1
Chapter 4: Permanent Bars to GMC
A. Murder
An applicant who has been convicted of murder at any time is permanently barred from establishing GMC for
naturalization.1
B. Aggravated Felony
In 1996, Congress expanded the definition and type of offense considered an “aggravated felony” in the
immigration context.2
An applicant who has been convicted of an “aggravated felony” on or after November 29,
1990, is permanently barred from establishing GMC for naturalization.3
While an applicant who has been convicted of an aggravated felony prior to November 29, 1990, is not
permanently barred from naturalization, the officer should consider the seriousness of the underlying offense
(aggravated felony) along with the applicant's present moral character in determining whether the applicant
meets the GMC requirement. If the applicant's actions during the statutory period do not reflect a reform of his
or her character, then the applicant may not be able to establish GMC.4
Some offenses require a minimum term of imprisonment of one year to qualify as an aggravated felony in the
immigration context. The term of imprisonment is the period of confinement ordered by the court regardless of
whether the court suspended the sentence.5
For example, an offense involving theft or a crime of violence is
considered an aggravated felony if the term of imprisonment ordered by the court is one year or more, even if
the court suspended the entire sentence.6
The table below serves as a quick reference guide listing aggravated felonies in the immigration context. The
officer should review the specific statutory language for further information.
“Aggravated Felonies” in the Immigration Context
Aggravated Felony Citation
Murder, Rape, or Sexual Abuse of a Minor INA 101(a)(43)(A)
Illicit Trafficking in Controlled Substance INA 101(a)(43)(B)
1
See 8 CFR 316.10(b)(1)(i).
2
See INA 101(a)(43). See the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. 104-208, 110 Stat.
3009-546 (September 30, 1996).
3
See 8 CFR 316.10(b)(1)(ii).
4
See 8 CFR 316.10(a)(2).
5
See INA 101(a)(48)(B). See Matter of S-S-, 21 I&N Dec. 900 (BIA 1997).
6
See INA 101(a)(43)(F) and (G). USCIS Policy Manual - Volume 12 - Part F - Chapter 4
Current as of June 10, 2013 2
“Aggravated Felonies” in the Immigration Context
Aggravated Felony Citation
Illicit Trafficking in Firearms or Destructive Devices INA 101(a)(43)(C)
Money Laundering Offenses (over $10,000) INA 101(a)(43)(D)
Explosive Materials and Firearms Offenses INA 101(a)(43)(E)(i)–(iii)
Crime of Violence (imprisonment term of at least 1 yr) INA 101(a)(43)(F)
Theft Offense (imprisonment term of at least 1 yr) INA 101(a)(43)(G)
Demand for or Receipt of Ransom INA 101(a)(43)(H)
Child Pornography Offense INA 101(a)(43)(I)
Racketeering, Gambling (imprisonment term of at least 1 yr) INA 101(a)(43)(J)
Prostitution Offenses (managing, transporting, trafficking) INA 101(a)(43)(K)(i)–(iii)
Gathering or Transmitting Classified Information INA 101(a)(43)(L)(i)–(iii)
Fraud or Deceit Offenses or Tax Evasion (over $10,000) INA 101(a)(43)(M)(i), (ii)
Alien Smuggling INA 101(a)(43)(N)
Illegal Entry or Reentry by Removed Aggravated Felon INA 101(a)(43)(O)
Passport, Document Fraud (imprisonment term of at least 1 yr) INA 101(a)(43)(P)
Failure to Appear Sentence (offense punishable by at least 5 yrs) INA 101(a)(43)(Q)USCIS Policy Manual - Volume 12 - Part F - Chapter 4
Current as of June 10, 2013 3
“Aggravated Felonies” in the Immigration Context
Aggravated Felony Citation
Bribery, Counterfeiting, Forgery, or Trafficking in Vehicles INA 101(a)(43)(R)
Obstruction of Justice, Perjury, Bribery of Witness INA 101(a)(43)(S)
Failure to Appear to Court (offense punishable by at least 2 yrs) INA 101(a)(43)(T)
Attempt or Conspiracy to Commit an Aggravated Felony INA 101(a)(43)(U)
C. Persecution, Genocide, Torture, or Severe Violations of Religious Freedom
The applicant is responsible for providing any evidence or documentation to support a claim that he or she is
not ineligible for naturalization based on involvement in any of the activities addressed in this section.
1. Nazi Persecutions
An applicant who ordered, incited, assisted, or otherwise participated in the persecution of any person or
persons in association with the Nazi Government of Germany or any government in an area occupied by or
allied with the Nazi government of Germany is permanently barred from establishing GMC for naturalization.7
2. Genocide
An applicant who has ordered, incited, assisted, or otherwise participated in genocide, at any time is
permanently barred from establishing GMC for naturalization.8
The criminal offense of “genocide” includes any
of the following acts committed in time of peace or time of war with the specific intent to destroy in whole or in
substantial part a national, ethnic, racial, or religious group as such:
 Killing members of that group;
 Causing serious bodily injury to members of that group;
 Causing the permanent impairment of the mental faculties of members of the group through drugs,
torture, or similar techniques;
 Subjecting the group to conditions of life that are intended to cause the physical destruction of the
group in whole or in part;
 Imposing measures intended to prevent births within the group; or
7
See INA 101(f)(9) and INA 212(a)(3)(E).
8
See INA 101(f)(9) and INA 212(a)(3)(E). See 18 U.S.C. 2340 and 18 U.S.C. 1091(a). USCIS Policy Manual - Volume 12 - Part F - Chapter 4
Current as of June 10, 2013 4
 Transferring by force children of the group to another group.9
3. Torture or Extrajudicial Killings
An applicant who has committed, ordered, incited, assisted, or otherwise participated in the commission of any
act of torture or under color of law of any foreign nation any extrajudicial killing is permanently barred from
establishing GMC for naturalization.10
“Torture” is defined as an act committed by a person acting under the color of law specifically intended to inflict
severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon
another person within his or her custody or physical control.11
An “extrajudicial killing” is defined as a deliberated killing not authorized by a previous judgment pronounced by
a regularly constituted court affording all the judicial guarantees, which are recognized as indispensable by
civilized peoples.12
4. Particularly Severe Violations of Religious Freedom
An applicant who was responsible for, or directly carried out, particularly severe violations of religious freedom
while serving as a foreign government official at any time is not able to establish GMC.13 “Particularly severe
violations of religious freedom” are defined as systematic, ongoing, egregious violations of religious freedom,
including violations such as:
 Torture or cruel, inhuman, or degrading treatment or punishment;
 Prolonged detention without charges;
 Causing the disappearance of persons by the abduction or clandestine detention of those persons; or
 Other flagrant denial of the right to life, liberty, or the security of persons.14
9
See 18 U.S.C. 1091. See Article II of the United Nations Convention on the Prevention and Punishment of t
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Aggravated Felonies and Deportation

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.

Report date: June 9, 2006

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