Aggravated Felonies

 

An aggravated felony triggers many serious restrictions of procedural rights during removal proceedings.  For example, it renders a noncitizen who is inadmissible or deportable subject to mandatory detention during removal proceedings.  See § 2.11, infra. 

 

            An aggravated felony conviction precludes judicial review of removal orders.  See § 2.19, infra.

 

            The statute creating the aggravated felony definition and ground of deportation subjected noncitizens with an aggravated felony conviction to degraded procedural rights in removal proceedings.  It directed the Attorney General to expedite deportation proceedings for aggravated felons in prison, so they could be ordered deported while still in prison and actually deported quickly upon release.[37]  A noncitizen convicted of an aggravated felony was conclusively presumed to be deportable from the United States.[38]  The Attorney General was not required to deport an aggravated felon until after completion of service of his or her prison term, except on written request of the chief prosecutor or judge.[39]  The time within which an aggravated felon was required to file a petition for review in the court of appeals was reduced from six months to 60 days.[40]

 

The Immigration Act of 1990 reduced the time within which an aggravated felon may file a petition for review in the court of appeals from 60 to 30 days.  The Immigration Act of 1990 repealed the authority of sentencing judges to grant Judicial Recommendations Against Deportation, and this legislation was specifically made retroactive.[41]  JRADs properly issued prior to November 29, 1990, however, are still being honored by the immigration authorities.  See § 6.15, infra.  An aggravated felon would no longer obtain an automatic stay of deportation upon filing a petition for review of a final deportation order.  Later legislation provided the government was not required to stay deportation of an aggravated felon until a petition for review had been adjudicated in a court of appeals, unless the court specified otherwise, regardless of when the conviction occurred.[42]

 

In 1994, Congress created new authority under which the Attorney General can bypass normal deportation procedures for certain noncitizens convicted of aggravated felonies, who are not Lawful Permanent Residents, and who are not eligible for relief from deportation, and order them deported administratively without proceedings before an immigration judge.[43]  The legislation allows the noncitizen only limited judicial review by petition for review or habeas corpus challenging only whether the noncitizen:

 

(a)        Is the person described in the deportation order;

(b)        Is described in the statute allowing administrative deportation;

(c)        Has a final conviction of an aggravated felony; and

(d)        Was given the limited procedures allowed under this legislation.[44] 

 

These amendments apply to noncitizens for whom deportation proceedings are initiated after the date this legislation was enacted.[45]

[37] Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, § 7347, 102 Stat. 4181 (Nov. 18, 1988), adding INA § 242A(a) and (d), 8 U.S.C. § 1252a(a) and (d).

[38] Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, § 7347, 102 Stat. 4181 (Nov. 18, 1988), adding INA § 242A(c), 8 U.S.C. § 1252a(c).

[39] Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, § 7347, 102 Stat. 4181 (Nov. 18, 1988), adding INA § 242A(c), 8 U.S.C. § 1252a(c).

[40] Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, § 7347, 102 Stat. 4181 (Nov. 18, 1988), amending INA § 106(a)(1), 8 U.S.C. § 1105(a)(1).

[41] INA § 241(b), 8 U.S.C. § 1251(b), as amended by Immigration Act of 1990, § 511, Pub. L. 101-649, 104 Stat. 4978  (Nov. 29, 1990).

[42] Miscellaneous and Technical Immigration and Naturalization Amendments of 1991 (MTINA), § 306(a)(11), Pub. L. No. 102-232, 105 Stat. 1733, overruling Ayala-Chavez v. INS, 945 F.2d 288 (9th Cir. 1991).

[43] Violent Crime Control and Law Enforcement Act of 1994, § 130004(a), Pub. L. No. 103-322, 1208 Stat. 1796, creating new INA § 242A(b), 8 U.S.C. § 1252a(b).

[44] Violent Crime Control and Law Enforcement Act of 1994, § 130004(b), Pub. L. No. 103-322, 1208 Stat. 1796, amending INA § 106, 8 U.S.C. § 1105a.

[45]  Gordon § 2.04[13][b][iii].