Post-Leocal litigation: pruning back overly-expansive definitions of "aggravated felony"
Immigration and criminal defense lawyers share a common frustration with government interpretations of "aggravated felony" that extend far beyond what can reasonably meet that description. In immigration proceedings, the government often asserts stale convictions for relatively minor crimes as "aggravated felonies," which disqualifies otherwise eligible aliens from a wide array of benefits. In the context of criminal prosecutions for illegal reentry after deportation, prior minor crimes – when labeled "aggravated felonies" – call for major increases in guideline sentences or harsher treatment under fast track programs.
The good news is that the Supreme Court in Leocal unanimously rejected the "aggravated felony" classification for driving while intoxicated. Beyond the core holding, Leocal’s reasoning will help cut back the over-expansive definitions of aggravated felony that have infested the case law.
Since Leocal, immigration attorneys from a number of national organizations have indicated an interest in coordinating with federal defenders in narrowing the scope of "aggravated felony." For example, Manny Vargas of the Immigrant Defense Project has made available a great website with resources summarizing issues and case law relevant to review of the validity of prior deportations and the labeling of prior convictions, and this alert calling for collaboration on specific aggravated felony issues. Manny and others such as Dan Kesselbrenner of the National Lawyers Guild's National Immigration Project , Lucas Guttentag of the ACLU’s Immigrant Rights Project (405 14th Street, Suite 300, Oakland, California, 510-625-2010) and Mary Meg McCarthy of the Midwest Immigrant and Human Rights Center (MMccarthy@heartlandalliance.org) will consider consultation and amicus support on issues of common concern. And we should continue to coordinate with our local immigration bars, who are usually networked through the American Immigration Lawyers Association. Leocal provides us with an important opening for coordinated litigation in which prior negative precedent has been superseded by the intervening reasoning of Leocal.
But let’s get to the basics. The term "aggravated felony" is only found in the immigration statutes, where it is defined in 8 U.S.C. § 1101(a)(43). This definitional section has evolved from its original 1988 form – which listed only murder, drug trafficking, and weapons trafficking – to its present form – which includes twenty-six sections and subsections that reference fifty other sections of the United States Code. As extensive as it is, the government has pushed and pushed to extend "aggravated felony" to minor offenses such as drug possession and misdemeanors. Then along came Leocal.
The Supreme Court granted certiorari to resolve a conflict among the Circuits regarding the treatment of drunk driving resulting in injury under the immigration statutes. The definition of "aggravated felony" includes "crimes of violence," so the question was whether drunk driving constituted a crime of violence. The unanimous Court held the offense was not a crime of violence and therefore was not an aggravated felony.
Leocal provides a great wedge into previous precedent that over-expanded the scope of "aggravated felony." Two areas come immediately to mind as including precedent that should not survive Leocal: 1) the conflicted case law (previously blogged here and here) regarding simple drug possession as constituting drug trafficking, thereby becoming an "aggravated felony;" and 2) the contradictory approach of calling certain types of misdemeanors "aggravated felonies."
Two aspects of Leocal’s reasoning provide advocates with bases for arguing that precedent must be re-examined in light of Leocal. First, the Court looked to the term being defined itself to aid in construction. The Court found that "crime of violence" did not "naturally" and by its "ordinary meaning" encompass driving while intoxicated. Similarly, "possession" does not ordinarily and naturally mean "trafficking"; "misdemeanor" does not ordinarily and naturally mean "felony."
Second, Leocal’s footnote 8 states that there can only be one statutory meaning for § 1101(a)(43) terms, not differing definitions in the criminal and non-criminal contexts. The rule of lenity applies to any ambiguity, regardless of whether the term is construed in the civil or criminal context. The Court later in the Term again emphasized that statutes have a single meaning in Clark v. Martinez, where Court held that the same words in the indefinite detention statute could not mean one thing for deportable aliens and another for inadmissible aliens. At the very least, Leocal and Martinez should bring an end to the Alice-In-Wonderland construction that simple possession constitutes "drug trafficking" in criminal but not in administrative proceedings.
Following Leocal's footnote 8, favorable administrative law decisions should be applied in the criminal context. For example, the Ninth Circuit's recent administrative holding that the California sex-with-a-minor statute is not categorically a "crime of violence," and therefore is not an "aggravated felony," means that such convictions do not trigger enhancements under U.S.S.G. § 2L1.2 (Valencia v. Gonzales). To stay up to date on immigration law developments, Kathy Brady has a useful website for the Immigrant Legal Resource Center and also recommends the Norton Tooby website.
Federal defenders and Criminal Justice Act panel attorneys should be working closer with the civil immigration bar to assure that "aggravated felony" issues are spotted and properly litigated. Federal criminal defense lawyers can benefit from expertise and support from the civil side, just as the civil side benefits from cases, such as Palacios-Suarez, litigated by federal defenders. And it's a two-way street on amicus support: the National Association of Federal Defenders amicus committee (chaired by Paul Rashkind, Fran Pratt, and Henry Bemporad) has agreed to provide support for certiorari on the possession-as-aggravated-felony issue being litgated in the adminstrative law context.
Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon