Saturday, December 31, 2005

Post-Leocal litigation: pruning back overly-expansive definitions of "aggravated felony"

In many districts, immigration offenses are among the most commonly prosecuted federal crimes. Between 1993 and 2003, the number of federal immigration sentencings increased from 2,008 to 15,081. In representing this expanding class of clients, federal criminal defense lawyers need to be increasingly cognizant of the work of the civil immigration bar and to collaborate in their efforts, especially regarding the definition of what constitutes an "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 ( 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


Anonymous Anonymous said...

Has anyone read the article in the Houston Chronicle by one of the Fifth Circuits' sitting judges? I know it's outside of our Circuit, but it's very interesting. He blasts the Supreme Court's interpretation of the "right of privacy" and actually calls for a NATIONAL REFERENDUM to reverse it!!! I have got to hear some responses.

Saturday, January 14, 2006 8:48:00 PM  
Blogger 209 said...

More important is the current issue of Lopez v. Gonzalez, in which the governemnt is interpreting the term "aggravated felony" to include state or federal crimes that are listed as felonies. This violates the Naturalization Clause by allowing states to set and implement immigration policy by their varying classification of felonies. In South Dakata an immigrant may be deported for possession of more than an ounce of marijuana, while another identitical immigrant in California would merely be given a misdeamnor. This has grave implications for legal immigrants, such as Lopez, that is a taxpayer, community contributor,buisness-owner, a husband, and a father to his children. The crime he committed is merely a federal misdeamnor, however, under South Dakota's stringent laws, he was given a felony which equated mandatory deportation, lifetime banishment from the United States (and his family), and denial of discretionary relief from a Federal Judge. The government's definition of an aggravated felony, under the federal statue of the Controlled Substance Act, gives states the power to control immigration. This will ultimately led to diverse laws and treatment of immigrants depending on the state they reside in. Immigration law needs to be uniform, Alexander Hamilton wrote in the Fed. 32, that Naturalization must be uniform in this country, or there will be too many conflicting attitudes and unfair treatment between the states about immigrants. The governments definition of an aggravated felony allows states to adapt conflicting attitudes and this will case to unfair treatment of immigrants nationwide and allow states to control and set the requirements for immigrants staying in this country. However, this is most likely a problem for Congress to fix and not the courts. The 9th Circuit took the most detailed and in my opinion, correct approach in Cazarez-Gutierrez v. Ashcroft, however, I feel the Court will delegate this problem to Congress. I am sure Congress doesn't want to get their hands dirty would not want to touch such a touchy issues, especially Congressmen in the midwest.

Sunday, November 05, 2006 4:51:00 PM  
Blogger Unknown said...

Anyone read this article. I think its out side of our circuit but it is very interesting.



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Tuesday, September 09, 2008 8:00:00 PM  
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Monday, September 15, 2008 11:35:00 PM  
Blogger john said...

I had read the article in the Houston Chronicle, It was very interesting.Immigration is the moving of one place to other in search of work. There are some rules for immigration that rules should be followed.



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Tuesday, September 16, 2008 9:30:00 PM  
Blogger Unknown said...

An aggravated felony is a category of criminal offenses that originally covered murder,rape.Subsequent legislation has significantly expanded the scope of crimes that fall into this category.Generally,an aggravated felony applies to criminal offenses in violation of state or federal laws,but if a conviction was classified as a misdemeanor under state law,it may still be considered an aggravated felony under federal law.

Thursday, November 13, 2008 10:46:00 PM  

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