The perplexing nature of the aggravated felony definition under INA § 101(a)(43) will once again be the subject of an important immigration decision.  This section has become increasingly broad in scope and covers even criminal offenses that were misdemeanors in criminal court.  Initially added to the Immigration and Naturalization Act in 1988, aggravated felonies encompassed only murder and trafficking in drugs or firearms. The 1996 amendments to the Illegal Immigration Reform and Responsibility Act  (IIRAIRA)  expanded the list of aggravated felons.  The consequences of being deemed an aggravated felon by an immigration court are severe and can limit almost any relief except Convention against Torture under Article III.  Families who have been here for years are suddenly torn apart and the inability to return to the United States forever becomes the consequence.   As a result, consequences of a criminal conviction lead to a far heavier burden than the criminal punishment.

The Board of Immigration Appeals heard oral arguments on August 10, 2011 which will hopefully lead to greater clarity with INA § 101(a)(43).  In February of 2010, the Department of Homeland Security began removal proceedings against a long-term permanent resident who was convicted in 2002 for Attempted Arson in the Third Degree.  The Department of Homeland Security argued to the York, Pennsylvania Immigration Court that the New York Statute and  INA § 101(a)(43) had an overlap in word use.  Although INA § 101(a)(43) contained words that were nonexistent in the New York statute, the Department of Homeland Security argued that these words were superfluous and should be ignored.  The York Pennsylvania Immigration Court judge agreed with the Department of Homeland Security.

In his brief to the BIA, the Respondent’s attorney, Ray Lahoud highlighted how the Respondent had lived an accomplished life in Pennsylvania.  Currently his wife and children are anxiously awaiting for the Respondent’s return following the one year he has spent in detention.  His legal argument touched on how the Respondent’s conviction of attempted arson has previously been considered a Crime of Moral Turpitude.  Because of this, the Respondent should have been eligible for cancellation of removal under INA § 212(h).  Additionally, his legal argument focused on how DHS was arbitrarily trying to make the Respondent’s crime an aggravated felony by ignoring provisions of 18 USC § 844 (f)(1) which required the attempted arson to be on federal property.  DHS also sought to make the Respondent’s crime an aggravated felon using 18 USC § 844(i) which required the property in the attempted arson to be used in interstate commerce.  Because of INA101§(a)(43)(e) and INA101 § (a)(43)(u) ,attempted crimes  under 18 USC § 844 (f)(1) and 18 USC § 844(i) would qualify as an aggravated felon

Aggravated felony section remains a heavily litigated topic area.  The 2006 Supreme Court decision of Lopez v. Gonzales, in which the court held that a state drug conviction had to be punishable as a felony to be considered an aggravated felony for immigration purposes, has provided little relief for understanding other provisions of the section. The Supreme Court in the 2010 decision of Carachuri-Rosendo v Holder, provided some clarity by holding that the government cannot impose a recidivist approach to enhance a prior criminal conviction that might have led to an aggravated felony finding in the immigration context.

Given the confusion that exists, legislative reform of this provision of the INA is a necessity.  In December of 2005, the House of Representatives passed HR 4337.  Had the bill become law, one of its provisions would have expanded the reach of INA § 101(a)(43) even further and  provided no clarity for immigration attorneys and judges in the interpretation.

Rather than continuing to be a clog of judicial resources, Congressional leaders must realize that immigration reform of this section is in dire need of reform.  Rather than using its provisions as a way to increase deportations that have already tripled in the last two years, an attempt must be made to ensure that the punishment fits the crime and is not ridiculous in its draconian consequences of immigration exclusion.