(A)  Retroactivity of Aggravated Felony Definition.  In 1996, Congress provided that a conviction is considered as an aggravated felony regardless of the date of conviction.  It eliminated the prior system of effective dates that had determined when an offense could be classified as an aggravated felony.[218]  This legislation made every offense listed in the statute an aggravated felony conviction, at least for some purposes, regardless of the date of conviction.

 

Therefore, an aggravated felony conviction will trigger deportation even if the crime was committed or even if the conviction occurred prior to the date on which the offense was added to the list of aggravated felonies, or even prior to the date the aggravated felony definition or deportation ground themselves were enacted.

 

                Under certain circumstances, an aggravated felony conviction that occurred prior to a certain date may not trigger a specific immigration consequence, but an aggravated felony conviction will always trigger many adverse consequences, and there is a particular danger Congress will add others in the future, and apply them retroactively to convictions occurring prior to the change in the law.

 

                Some noncitizens may have an effective-date defense against application in immigration court of certain immigration consequences.  For example, the preclusion of judicial review triggered by an aggravated felony conviction requires a conviction that meets the definition entered on or after September 30, 1996, the effective date of IIRAIRA.[219]  See § 15.37, supra.  In addition, an aggravated felony conviction constitutes a permanent statutory bar to establishing Good Moral Character only if the conviction occurred on or after November 29, 1990.[220]  See § 15.6, supra.

 

                Other immigration consequences triggered by an aggravated felony conviction are applied retroactively, even though the conviction or criminal conduct pre-dated the inclusion of the conviction within the aggravated felony definition.[221]  To determine whether a given immigration consequence, triggered by an aggravated felony conviction, is applied retroactively, see the specific immigration consequence listed in Chapter 24, infra.

 

                Criminal counsel should not count on an effective-date defense, however, even in an apparently strong case.  The mandatory detention rules require that persons accused of being deportable on account of an aggravated felony conviction must remain in detention without possibility of bond throughout the proceedings.  See § 6.50, supra.  Moreover, there is a statutory automatic-stay rule that requires the noncitizen to be detained without bond during a DHS appeal to the Board of Immigration Appeals even after the immigration judge has ruled the immigrant is not deportable or removable on account of the aggravated felony conviction.[222]  Therefore, even if the immigrant is right, and is not deportable on this ground, the immigrant may well be required to spend a year or so in immigration custody before s/he is ultimately vindicated on appeal before the BIA by a ruling that s/he is not removable on this ground.

 

                On the other hand, serving a year in immigration custody before winning release and defending successfully against deportation is considerably better than suffering permanent banishment away from home and family.

 

[218] See amended INA § 101(a)(43), 8 U.S.C. § 1101(a)(43) (text following subsection (U)).  Prior to the IIRAIRA, a majority of offenses listed in INA § 101(a)(43), 8 U.S.C. § 1101(a)(43) were aggravated felonies only if the commission of the offense or the conviction occurred on or after the date the offense was listed in the statute; for example, a crime of violence committed before November 29, 1990 formerly was not an aggravated felony since crimes of violence were first listed as aggravated felonies on that date.  IIRAIRA generally abolished this rule, holding that an aggravated felony is an aggravated felony “regardless of whether the conviction was entered before, on or after the date of enactment of this paragraph.”  INA § 101(a)(43), 8 U.S.C. § 1101(a)(43), second to last paragraph. Chan v. Gantner, 464 F.3d 289 (2d Cir. Sept. 20, 2006) (1996 INA amendments that expanded the class of aggravated felonies to include conspiracy to smuggle noncitizens apply retroactively); Tran v. Gonzales, 447 F.3d 937 (6th Cir. May 17, 2006) (IIRAIRA properly applied to pre-IIRAIRA conviction); Alvarez-Barajas v. Gonzales, 418 F.3d 1050 (9th Cir. Aug. 11, 2005) (retroactive application of aggravated felony definition proper).

[219] Renteria-Gonzalez v. INS, 322 F.3d 804 (5th Cir. Nov. 11, 2002) (conviction did not deprive the court of appeals of jurisdiction over a petition for review where it did not qualify as an aggravated felony under pre-IIRAIRA immigration law).

[220] Immigration Act of 1990, § 509(a); INS, Office of the General Counsel, Genco Opinion No. 96-16, 74 Interpreter Releases 1515, 1530 (Oct. 6, 1997).

[221] See, e.g., United States v. Torres-Duenas, 461 F.3d 1178 (10th Cir. Aug. 28, 2006) (sentencing guidelines increasing offence level by 8 for aggravated felony, and 16 for crimes of violence apply regardless of the age of the conviction; 20 year old conviction properly used to increase level upon conviction of illegal re-entry); Khan v. Ashcroft, 352 F.3d 521 (2d Cir. Jan. 7, 2005).

[222] Ibid.

Second Circuit

AGGRAVATED FELONY " EFFECTIVE DATE " EX POST FACTO RULES DO NOT APPLY TO REMOVAL CONTEXT
Morris v. Holder, 676 F.3d 309, 317 (2d Cir. Apr. 23, 2012) (the Supreme Court's decision in Padilla v. Kentucky, 130 S.Ct. 1473 (2010), did not overturn our [Second Circuit] precedent holding that the Ex Post Facto Clause of the United States Constitution, U.S. Const. art. I, 9, cl. 3, is not applicable in the deportation and removal context.).

Third Circuit

AGGRAVATED FELONY - RETROACTIVITY
Biskupski v. Attorney Gen. of the US, __ F.3d __, 2007 WL 2774528 (3d Cir. Sept. 25, 2007) (aggravated felony definition not impermissibly retroactive; the term "actions taken" in section 321(c) of IIRAIRA refers to orders and decisions of an IJ or the BIA to apply "aggravated felony" definition, not to actions taken by the noncitizen).

Fourth Circuit

AGGRAVATED FELONIES " RETROACTIVITY
Mondragon v. Holder, 706 F.3d 535, (4th Cir. Jan. 31, 2013) (retroactive application of 1996 expansion of aggravated felony definition to convictions predating its effective date did not violate the Constitution).

Fifth Circuit

AGGRAVATED FELONY - EFFECTIVE DATE
Garrido-Morato v. Gonzales, ___ F.3d ___ (5th Cir. April 24, 2007) (the Illegal Immigration Reform and Immigrant Responsibility Act amendments that made harboring aliens an aggravated felony are not impermissibly retroactive).

Sixth Circuit

AGGRAVATED FELONY - RETROACTIVITY - EFFECTIVE DATE - ISSUANCE OF DHS ARREST WARRANT CONSTITUTES "ACTION TAKEN" TRIGGERING APPLICATION OF PRE-IIRIRA DEFINITION OF AGGRAVATED FELONY
Saqr v. Holder, 580 F.3d 414 (6th Cir. Sept. 9, 2009) (issuance of OSC by the INS, which has not been cancelled, constitutes an "action taken" for purposes of triggering application of the pre-IIRIRA definition of aggravated felony); see Alanis-Bustamante v. Reno, 201 F.3d 1303, 1310 (11th Cir.2000) (concluding that "[c]onsiderations of fairness convince us that for purposes of deciding which law applies, the removal proceedings in this case should be viewed as commencing at least on that date ... when the show cause order had been served and the warrant of detainer lodged"); Wallace v. Reno, 194 F.3d 279, 287 (1st Cir.1999) (finding that in the context of waiver to deportation proceedings, "when an order to show cause is served on the alien, the deportation process has effectively begun"); but see Garrido-Morato v. Gonzales, 485 F.3d 319, 324 (5th Cir.2007) (concluding that a guilty plea taken before the enactment of IIRIRA is insufficient to trigger application of the pre-IIRIRA definition of aggravated felony because the triggering event must be an action taken under the statute and stating that "the definition of aggravated felony is to be applied retroactively with respect to any action taken that implicates 321"). NOTE: the noncitizen in this case was later issued an NTA, which was filed with the immigration court post IIRIRA. However, the original OSC (which was never filed with the court) was not "cancelled" prior to filing the NTA.

AGGRAVATED FELONY - RETROACTIVITY
Morgan v. Keisler, __ F.3d __, 2007 WL 3131687 (6th Cir. Oct. 29, 2007) (relief under INA 212(c) is not available to a noncitizen convicted of an aggravated felony between April 24, 1996 and April 1, 1997, even if the offense was not considered an aggravated felony at the time of conviction).

Eighth Circuit

AGGRAVATED FELONY - FIREARMS OFFENSE - CLAIM OF SPORTING USE EXCEPTION REJECTED
Alvarado v. Gonzales, 484 F.3d 535 (8th Cir. April 17, 2007) (per curiam) (federal conviction of possession of firearms and ammunition by an unlawful user of a controlled substance, under 18 U.S.C. 922(g)(3), constituted aggravated felony firearms conviction, for purposes of removal and cancellation of removal, despite the alleged sporting purpose of the guns at issue).

Ninth Circuit

AGGRAVATED FELONY " DEPORTATION GROUND " EFFECTIVE DATE " AN AGGRAVATED FELONY CONVICTION OCCURRING PRIOR TO NOVEMBER 18, 1988 DOES NOT TRIGGER DEPORTATION
Reyes-Torres v. Holder, ___ F.3d ___, ___, 2011 WL 1312570 (9th Cir. Apr. 7, 2011) (the aggravated felony ground of deportation does not apply to convictions such as the 1984 conviction in this case that were entered prior to the date the aggravated felony definition was enacted, November 18, 1988: In Ledezma-Garcia, we held that 8 U.S.C. 1227(a)(2)(A)(iii) does not apply to convictions that occurred prior to the enactment of the Anti-Drug Abuse Act of 1988.).

AGGRAVATED FELONY - EFFECTIVE DATE - CONVICTIONS OCCURRING PRIOR TO NOVEMBER 18, 1988, DO NOT TRIGGER DEPORTATION GROUND
Ledezma-Garcia v. Holder, 599 F.3d 1055 (9th Cir. Mar. 22, 2010) (although the "aggravated felony" definition applies regardless of the date of conviction, an aggravated felony conviction occurring prior to November 18, 1988 does not trigger deportability under INA 237(a)(2)(A)(iii), 8 U.S.C. 1227(a)(2)(A)(iii)), overruling Matter of Lettman, 22 I. & N. Dec. 365 (BIA 1998) (en banc).

AGGRAVATED FELONY - EFFECTIVE DATE - ILLEGAL REENTRY - SENTENCE - AGGRAVATED FELONY CONVICTIONS TRIGGER SENTENCE ENHANCEMENT REGARDLESS OF DATE OF CONVICTION
United States v. Olmos-Esparza, 484 F.3d 1111 (9th Cir. April 24, 2007) (district court did not err by considering convictions from 1972 and 1976 in calculating illegal reentry sentencing enhancements under USSG 2L1.2), (USSG 2L1.2 contains no time limitation on the age of convictions for purposes of calculating sentencing enhancements); accord, United States v. Torres-Duenas, 461 F.3d 1178, 1181-82 (10th Cir.2006), petition for cert. filed November 22, 2006 (No. 06-7990); United States v. Camacho-Ibarquen, 410 F.3d 1307, 1312-13 (11th Cir.), cert. denied, 126 S.Ct. 457 (2005).

AGGRAVATED FELONY - RETROACTIVITY
Although the Ninth Circuit held that only convictions after November 18, 1988, the effective date of the ADAA, could be considered aggravated felonies, see Ayala-Chavez v. INS, 945 F.2d 288 (9th Cir.1991), Congress effectively overruled that decision when it passed the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, Pub.L. No. 102-232 (December 12, 1991) amending the Immigration Act of 1990, Pub.L. No. 101-649 (November 29, 1990). These Amendments provided, among other things, that convictions before 1988 could also qualify as aggravated felonies. 105 Stat. at 1752, 306(a)(13). These Amendments are effective as though they were part of the 1990 Immigration Act. Pub.L. No. 102-232, 105 Stat. at 1759, 310.