Aggravated Felonies

 

Migration into the United States has increased dramatically over the last few decades and a surprising proportion of the U.S. population consists of persons born in foreign lands.  The estimated foreign-born population in the U.S. as of March 2000 was 28.4 million, which is 10.4 percent of the total population.  This number is up from 7.9 percent in 1990.[1]

 

            California, for example, has a very large immigrant population.  The 1990 Census indicated that 22% of Californians were immigrants.[2]  Of these, 69% were noncitizen immigrants.[3]  Many have suggested that the immigrant population is in fact much higher because of the number of immigrants who may have been reluctant to speak openly with census takers.[4]

 

            An “aggravated felony” is a category of criminal offense with a terrible-sounding name that is defined in the Immigration and Nationality Act.  See § 1.3, infra.[5]  Since it was first added in 1988, this term has suffered great expansion, from truly aggravated felonies, to mere serious felonies, to ordinary and then minor felonies, and finally to encompass a number of what can only be called “minor misdemeanors.”  See § 1.4, infra.[6]

 

            At the same time, Congress — trading on the truly reprehensible title of the category — has attached worse and worse consequences to those who fall within the definition of the term.  First, it constitutes a ground of deportation for noncitizens who suffered one or more aggravated felony convictions.  See § 1.6, infra.[7]  Second, an aggravated felony conviction disqualifies noncitizens in immigration court from an increasing number of forms of relief as well as putting them at risk of additional adverse immigration consequences.  See § 1.7, infra. Third, it serves as a trigger for the deprivation of a great number of procedural rights during removal proceedings.  See § 1.8, infra.  Finally, an aggravated felony conviction has two serious sentencing consequences for noncitizens convicted of illegal re-entry after deportation: it increases the statutory maximum federal prison term to 20 years, and it increases the base offense level of that offense by up to 16-levels, in effect doubling or tripling the prison term imposed.  See § 1.9, infra.

 

            Since 1996, greatly expanded resources have been devoted to federal efforts to deport immigrants convicted of criminal offenses.  This factor, combined with the expansion of the definition of the term “aggravated felony” and the restriction on relief available to noncitizens convicted of these offenses, has led to the deportation of greater and greater numbers of noncitizens.  In 2003, for example, the government removed 81,108 noncitizens on criminal grounds, up by 33 % from the 1998 total.[8]  The 2004 removal of 88,897 noncitizens with criminal records is the largest total ever, representing an increase of more than 44 times the number of removals of immigrants on criminal grounds in 1986.[9]

 

Because the aggravated felony ground of deportation is not technically considered to be “punishment,”[10] Congress and some courts have declared that a conviction — that was not an aggravated felony when it occurred — now falls within the newly expanded definition.  This resembles allowing drivers to go 75 miles per hour in one year, and then later deporting them as “aggravated felons” when the speed limit is retroactively reduced to 55 miles per hour for previous years.  Thus, a noncitizen who suffered a minor conviction for sale or importation of a small quantity of marijuana 30 years ago, when the aggravated felony category did not yet exist, who is now married to a United States citizen, with four children who are United States citizens, and who is now a pillar of the community, will be arrested by the government and permanently deported without any realistic possibility of compassionate consideration.

 

Because the category has expanded to cover less and less serious offenses, these same consequences result in terrible injustices to those who are convicted of misdemeanor shoplifting, for example, and receive one-year suspended sentences.  The courts have held that it does not matter whether an “aggravated felony” is a minor misdemeanor, so long as it falls within one or more of the specific definitions Congress included within the meaning of that phrase. See § 3.58, infra.

 

            As the number of deportations on this ground rises, the number of immigrants who return illegally to their homes and families here has also increased exponentially.  The term “aggravated felony” is used as a trigger to increase the maximum possible federal prison sentence for the offense of illegal re-entry after deportation to 20 years, as well as increasing the base offense level by up to 16-levels under the United States Sentencing Guidelines.  The number of persons charged in United States District Court with immigration offenses has risen from 8,429 in 1998 to 12,011 in 2002 — an increase of more than 42%.  From 20-25% of the caseloads of federal defenders in some districts are comprised of these cases, and federal prisons are filling with noncitizens who have never committed a violent offense, nor victimized anyone, but who are still forced to serve sentences ranging from 30 months to six or seven years in prison.  The federal Bureau of Prisons reports the number of inmates in currently in federal prison for immigration offenses as 18,924 (11% of the total number of inmates).[11]  While immigration offenses include more than illegal re-entry offenses, the sentences bloated by aggravated felony sentence enhancements are swelling the federal prison populations, at great and unnecessary expense to everyone involved.

[1] U.S. Census Bureau, “American Community Survey,” [last updated Apr. 3, 2003, retrieved Apr. 21, 2003].  Available from http://www.census.gov/acs/www/index.html

[2] U.S. Dept. of Commerce Bureau of the Census, 1990 Census of Population (1990) table 18, p. 152.

[3] Ibid. 

[4] Medina, “Raids May Impact Counting Process for 1990 Census,” El Observador (Oct. 11, 1989), page 2A, column 2.

[5] INA § 101(a)(43), 8 U.S.C. § 1101(a)(43).

[6] INA § 101(a)(43), 8 U.S.C. § 1101(a)(43).

[7] INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii).

[8] U.S. Bureau of Citizen and Immigration Services, “2004 Yearbook of Immigration Statistics” [last updated Jan. 2006, retrieved Apr. 18, 2006.] Available from

http://uscis.gov/graphics/shared/statistics/yearbook/Yearbook2004.pdf

[9] U.S. Bureau of Citizen and Immigration Services, “Enforcement, Fiscal Year 2001,” 2001 Statistical Yearbook of the Immigration and Naturalization Service. [Last updated Apr. 14, 2003, retrieved on Apr. 18, 2006.] Available from http://uscis.gov/graphics/shared/statistics/yearbook/2001/ENF2001.pdf, p. 7.

[10] Pauw, A New Look At Deportation As Punishment: Why At Least Some Of The Constitution’s Criminal Procedure Protection Must Apply, 52 Admin. L. Rev. 305 (2000).

[11] U.S. Department of Justice, Federal Bureau of Prisons, “Federal Bureau of Prisons Quick Facts” (last updated Feb. 25, 2006, retrieved Mar. 13, 2006).  Available from http://www.bop.gov