An aggravated felony conviction triggers immigration consequences so terrible and mandatory that in general most noncitizens suffering such a conviction must resign themselves to permanent banishment from the United States, no matter what the equities.  Even a long-term permanent resident, who is convicted of an aggravated felony, will almost certainly be deported, never to return.

            Aggravated felonies also trigger harsh federal criminal sentences of five years or more for those convicted of illegal re-entry after deportation.[1]

 

            The INA designates several dozen state, federal and foreign offenses as “aggravated felonies”[2] ranging arbitrarily from murder, to the most minor drug sale, to conviction of misdemeanor theft with a one-year suspended sentence, to failure to appear for certain felony trials.  This category is a classic example of “bait and switch” in criminal legislation, in which Congress gives a terrible name to a category of offenses, and then expands the actual offenses listed within the category to include more and more minor offenses, far beyond the plain meaning of the label.  While the label is “aggravated felony,” Congress has now included non-aggravated felonies within this category, for instance, theft offenses with one-year suspended sentences.  These are garden-variety felonies, rather than aggravated felonies in any true sense of the term. 

 

            Moreover, the words defining “aggravated felony” only rarely require in so many words a “felony” conviction.  This has led several courts to conclude that misdemeanor convictions can fall within this definition.  The inclusion of suspended sentences as equal to non-suspended sentences has left us with the ridiculous situation in which a misdemeanor theft conviction with a one-year suspended sentence has been held to fall within the “aggravated felony” category.[3]

 

            The sad result of this tactic is to engender antagonistic attitudes appropriate to the label, and unfairly apply them against immigrants guilty only of routine offenses and even minor misdemeanors that are carelessly swept within the label.  It is interesting that the authors of the United States Sentencing Guidelines, for whom the category “aggravated felony” plays a similar role, have provided for a downward departure if the particular “aggravated felony” is not a very serious one, and have now enacted a graduated schedule of enhancements based on aggravated felonies of different degrees of seriousness.[4]

[1] INA § 276(b)(2), 8 U.S.C. § 1326(b)(2).

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

[3] United States v. Graham, 169 F.2d 787 (3d Cir. 1999).

[4] See U.S.S.G. § 2L1.2(b).

Other

INADMISSIBILITY - TIME OF EVALUATION - CRIME OF MORAL TURPITUDE - PETTY OFFENSE EXCEPTION - TIME OF DECISION
Admissibility is normally evaluated under the law at the time of the application to enter or adjust status, but if the law has changed between the date of application, and the date of decision, the decisionmaker will apply law as it exists at the time of the decision. See, e.g., Matter of Alarcon, 20 I. & N. Dec. 557 (BIA 1992) (BIA assesses application for INA 212(h) waiver of inadmissibility under law at time of decision, not the statute as it existed when the application for the waiver was made); Matter of Alarcon, 20 I. & N. 557 (BIA 1991) (amended statute governs waiver application first filed under earlier version of INA 212(h)); Matter of Kazemi, 19 I. & N. Dec. 49 (BIA 1984) (intervening regulatory change regarding jurisdiction to review INA 212(d)(4) waiver application overrides prior BIA precedent to the contrary); Squires v. INS, 689 F.2d 1276, 1280 (6th Cir. 1982) (noncitizen no longer eligible for petty offense exception to inadmissibility, since Canadian Parliament increased maximum punishment for the offense to more than one year); Matter of Farias. Int. Dec. 3269 (BIA 1996) (evaluating eligibility for INA 212(d)(11) smuggling waiver at time of adjudication). This can work either for or against the applicant. An applicant who was ineligible for a benefit when s/he applied for it may become eligible under new law at the time the fact finder makes her or his decision. On the other hand, if a foreign legislature increases the punishment for an offense, the Board will determine if the applicant qualifies for the petty offense exception by examining the maximum criminal penalty at the time of the application for entry, not the maximum penalty at the time the offense was committed.