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

DUE PROCESS - NONCITIZENS ARE PERSONS ENTITLED TO DUE PROCESS PROTECTION
Zadvydas v. Davis, 533 U.S. 678, 693-694, 121 S.Ct. 2491 (June 28, 2001) ("[O]nce an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all "persons" within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent. See Plyler v. Doe, 457 U.S. 202, 210, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982); Mathews v. Diaz, 426 U.S. 67, 77, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976); Kwong Hai Chew v. Colding, 344 U.S. 590, 596-598, and n. 5, 73 S.Ct. 472, 97 L.Ed. 576 (1953); Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 30 L.Ed. 220 (1886); cf. Mezei, supra, at 212, 73 S.Ct. 625 ("[A]liens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law"). Indeed, this Court has held that the Due Process *694 Clause protects an alien subject to a final order of deportation, see Wong Wing v. United States, 163 U.S. 228, 238, 16 S.Ct. 977, 41 L.Ed. 140 (1896), though the nature of that protection may vary depending upon status and circumstance, see Landon v. Plasencia, 459 U.S. 21, 32-34, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982); Johnson, supra, at 770, 70 S.Ct. 936.").

DUE PROCESS - NONCITIZENS ARE PERSONS ENTITLED TO DUE PROCESS PROTECTION
Plyler v. Doe, 457 U.S. 202, 210, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982) ("Whatever his status under the immigration laws, an alien is surely a person .... Aliens, even aliens whose presence in this country is unlawful, have long been recognized as persons guaranteed due process of law by the Fifth and Fourteenth Amendments.").

BIA

STATISTICS - IMMIGRATION REDUCES CRIME
Immigration Reduces Crime Rates LiveScience.com Tue Mar 18, 4:11 PM ET Contrary to popular stereotypes, areas undergoing immigration are associated with lower violence, not spiraling crime, according to a new study by Harvard University sociologist Robert Sampson, published in the American Sociological Association's Contexts magazine. He examined crime and immigration in Chicago and around the United States to find the truth behind the popular perception that increasing immigration leads to crime. His study summarizes patterns from seven years' worth of violent acts in Chicago committed by whites, blacks and Hispanics from 180 neighborhoods of varying levels of integration. He also analyzed recent data from police records and the U.S. Census for all communities in Chicago. Sampson found concentrated immigration predicts lower, not higher, rates of violence across communities in Chicago, with the relationship strongest in poor neighborhoods. Violence was also significantly lower among Mexican-Americans than among blacks and whites. Sampson refers to this as the "Latino Paradox," whereby Hispanic Americans do better on a range of social indicators, including propensity to violence, than one would expect, given their socioeconomic disadvantages. His analysis also revealed that first-generation immigrants were 45 percent less likely to commit violence than third-generation Americans. "The pattern of immigrant generational status and lower crime rates is not restricted to Latinos; it extends to help explain white-black differences as well," Sampson said. "We're so used to thinking about immigrant assimilation that we've failed to fully appreciate how immigrants themselves shape their host society." Sampson's arguments are supported at the national level as well. Significant immigration growth - including by illegal aliens - occurred in the mid-1990s, peaking at the end of the decade. During this time, the national homicide rate plunged. Crime dropped even in immigration hot spots, such as Los Angeles (where it dropped 45 percent overall).

CRIMDEF - INTRODUCTION
The Myth of Immigrant Criminality and the Paradox of Assimilation: Incarceration Rates among Native and Foreign-Born Men "[D]ata from the census and other sources show that for every ethnic group without exception, incarceration rates among young men are lowest for immigrants, even those who are the least educated. This holds true especially for the Mexicans, Salvadorans, and Guatemalans who make up the bulk of the undocumented population. The problem of crime in the United States is not caused or even aggravated by immigrants, regardless of their legal status. But the misperception that the opposite is true persists among policymakers, the media, and the general public, thereby undermining the development of reasoned public responses to both crime and immigration." IPC, Feb. 26, 2007. http://www.ailf.org/ipc/special_report/sr_022107.pdf

Ninth Circuit

IMMIGRATION LAW " COMPLEXITY
Castro-ORyan v. U.S. Dept of Immigr. & Naturalization, 847 F.2d 1307, 1312 (9th Cir. 1988) (With only a small degree of hyperbole, the immigration laws have been termed second only to the Internal Revenue Code in complexity. (quoting Elizabeth Hull, Without Justice for All 107 (1985))).

Other

STATISTICS " IMMIGRATION OFFENSES CONSTITUTE THE LARGEST CATEGORY OF U.S. MARSHAL ARRESTS
Immigration crime was the most common category of federal crime for which suspects were arrested and booked by the U.S. Marshals Service (USMS), the federal agency responsible for taking a criminal suspect into custody. Mark Motivans, Department of Justice, Bureau of Justice Statistics, Federal Justice Statistics, 2010 (Dec. 2013). Thanks to crimmigration.com.

REMOVALS BY COUNTRY
A DHS website lists the number of noncitizens that were removed to 224 different countries from the beginning of 2008 through February 22, 2010. http://www.dhs.gov/xoig/assets/mgmtrpts/OIG_11-81_May11.pdf

STATISTICS
Solomon Moore, Study Shows Sharp Rise in Latino Federal Convicts, N.Y. Times (Feb. 19, 2009) http://www.nytimes. com/2009/ 02/19/us/ 19immig.html

STATISTICS - IMMIGRATION PROSECUTIONS
Federal immigration prosecutions continued their recent and highly unusual surge in March 2008, apparently reaching an all-time high, according to timely data obtained from the Justice Department by TRAC. The total of 9,350 such prosecutions was up by almost 50% from the previous month and 73% from the previous year. http://trac.syr.edu/tracdhs/

STATISTICS - IMMIGRANTS COMMIT FEWER CRIMES
Immigrants are far less likely than the average U.S.-born citizen to commit crime in California, the most populous state in the United States, according to a report issued late on Monday. People born outside the United States make up about 35 percent of California's adult population but account for about 17 percent of the adult prison population, the report by the Public Policy Institute of California showed. According to the report's authors the findings suggest that long-standing fears of immigration as a threat to public safety are unjustified. The report also noted that U.S.-born adult men are incarcerated at a rate more than 2 1/2 times greater than that of foreign-born men. Kristin Butcher and Anne Piehl, Crime, Corrections, and California: What Does Immigration Have to Do with It?, 9 CALIFORNIA COUNTS: POPULATION TRENDS AND PROFILES, No. 3 (Feb. 2008).

IMMIGRATION STATISTICS
In January 2008, there were 4,739 federal prosecutions classified as immigration matters, according to timely enforcement data from the Justice Department. This is up over 20% from the previous month, and represents the largest monthly number of such prosecutions in the past seven years. There has been substantial growth in the number of cases handled by U.S. Magistrate Courts, and some portion of this increase may reflect improvements in the recording of these magistrate cases by the Justice Department. For reports on the latest enforcement trends, see http://trac.syr.edu/tracreports/bulletins/

INTRODUCTION - CRIMINALITY OF NONCITIZENS
"Myth of Immigrant Criminality and the Paradox of Assimilation, Incarceration Rate of Native Born and Foreign Born Men" http://www.ailf.org/ipc/special_report/sr_022107.pdf

IMMIGRATION CONSEQUENCES
T. Indritz & J. Baron, Immigration Consequences of Criminal Convictions, in L. FRIEDMAN RAMIREZ, ED., CULTURAL ISSUES IN CRIMINAL DEFENSE 141 (2d ed. 2007).

SOCIAL SECURITY BENEFITS
CRS Report for Congress on Social Security Benefits for Noncitizens, updated July 20, 2006. http://bibdaily.com/pdfs/CRS%20social%20security%20benefits%20noncitizens%20Aug.%202006%20RL32004.pdf

REMOVAL STATISTICS
Detention and Removal of Illegal Aliens U.S. Immigration and Customs Enforcement (ICE) (PDF 52 pages - 2.74 MB)  - New 05/18/2006 http://www.dhs.gov/dhspublic/interweb/assetlibrary/OIG_06-33_Apr06.pdf

STATISTICS - NUMBER OF DEPORTED
Nearly 90,000 immigrants a year are deported for criminal convictions. See DHS, Immigration Enforcement Actions: 2005, at http://www.dhs.gov/xlibrary/assets/statistics/yearbook/2005/Enforcement_AR_05.pdf.

AGGRAVATED FELONY - STATISTICS ON REMOVAL
TRAC report: http://trac.syr.edu/immigration/reports

STATE LAWS RELATED TO IMMIGRATION
"In 2006, over 500 pieces of legislation concerning immigrants have been introduced in state legislatures around the country. While legislation covered a wide variety of topics, many states focused on employment, trafficking, public benefits, education, identification, voting rights and procedures, trafficking, law enforcement, and legal services. Thus far, at least 57 bills have been enacted in 2006, a pace that exceeds that of 2005. A handful of bills have been vetoed, and several more are awaiting gubernatorial action." NCSL, July 3, 2006. http://www.ncsl.org/programs/immig/06ImmigEnactedLegis2.htm

STATISTICS - ILLEGAL DEPORTATION OF US CITIZENS AND LEGAL RESIDENTS
Millions of people have been illegally deported from the U.S. by using local law enforcement as immigration officers. F. Balderama & R. Rodriguez, DECADE OF BETRAYAL. See also California Government Code Chapter 8.5 (commencing with 8720) to Division 1 of Title 2. In this statute, based on the book, it says: "In California alone, approximately 400,000 American citizens and legal residents of Mexican ancestry were forced to go to Mexico beginning in 1929. In total it is estimated that two million people of Mexican ancestry were forcibly relocated to Mexico, approximately 1.2 million of whom had been born in the United States, including the State of California."

TRAC REPORT ON AGGRAVATED FELONIES
http://trac.syr.edu/immigration/reports/175/

IMMIGRANTS ARE LESS LIKELY TO COMMIT PREDATORY CRIMES THAN NATIVE-BORN UNITED STATES CITIZENS
Immigrants are less likely to commit predatory crimes than are native-born American citizens. Numerous studies have consistently found that immigrants are, in fact, less likely to commit crimes than the native-born. Despite this fact, restrictionist groups and sensationalizing media continue to propagate false images of immigrant communities plagued by crime and violence. The nation's leading experts on immigration and crime are setting the record straight. More than 130 sociologists, criminologists, and legal scholars have signed an open letter to President Bush, members of Congress, and state governors testifying that the problem of violent crime in the United States is not caused by immigrants, regardless of their legal status. In fact, they write, immigrants in every ethnic group in the United States have lower rates of crime and imprisonment than do the native-born. And over the past decade, as immigration rates have soared to historic highs, rates of violent crime and property crime have declined sharply. They urge lawmakers not to be swayed by unfounded myths and to base immigration policy on demonstrated facts, rather than false assumptions. The full Open Letter on Immigrants and Crime is available on the Immigration Policy Center (IPC) website. [http://www.ailf.org/ipc/ipc_openletter0507.shtml] Additional information on immigrants and crime can be found in the IPC's Special Report on the Myth of Immigrant Criminality and the Paradox of Assimilation.

RESOURCES - IMMIGRATION ADVOCATES NETWORK - LEGAL INFORMATION
http://www.immigrationadvocates.org/

BIBLIOGRAPHY - BUREAU OF JUSTICE STATISTICS WEB SITE
HYPERLINK "http://www.ojp.usdoj.gov/bjs/" http://www.ojp.usdoj.gov/bjs/ Bureau of Justice Statics homepage.

BIBLIOGRAPHY
"The Crimmigration Crisis: Immigrants, Crime, & Sovereign Power," Juliet Stumpf, Lewis and Clark Law School ("This article provides a fresh theoretical perspective on the most important development in immigration law today: the convergence of immigration and criminal law. Although the connection between immigration and criminal law, or "crimmigration law," is now the subject of national debate, scholarship in this area is in a fledgling state. This article begins to fill that void. It proposes a unifying theory - membership theory - for why these two areas of law recently have become so connected, and why that convergence is troubling. Membership theory restricts individual rights and privileges to those who are members of a social contract between the government and the people. It is at work in the convergence of criminal and immigration law in marking out the boundaries of who is an accepted member of society.").

STATISTICS - IMMIGRATION-RELATED CRIMINAL PROSECUTIONS RISE ALMOST 16% OVER 2008
The latest Justice Department data show that federal prosecutions reached an all time high in FY 2009. The surge was driven by a sharp increase in immigration filings. According to timely case-by-case data obtained and analyzed by the Transactional Records Access Clearinghouse (TRAC), overall federal prosecutions peaked at 169,612, up nearly 9 percent from the previous year. But the increase in immigration filings was much sharper -- 15.7 percent. This means that such prosecutions now make up well over half of all criminal cases brought by the government. Meanwhile, the prosecution of other major crime categories such as drugs, weapons and white collar crime was up only slightly or had actually declined. To obtain the fiscal year-end summary report, go to http://trac.syr.edu/tracreports/crim/223/ Thanks to the Transactional Records Access Clearinghouse.