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Supreme Court Applies Plain Meaning Interpretation To Aggravated Felony Statutes

by Cyrus D. Mehta and Adam Ketcher

If a noncitizen is convicted of a crime, which is characterized as an "aggravated felony" under Section 101(a)(43) of the Immigration and Nationality Act ("INA"), it spells the kiss of death!

An aggravated felony conviction results in removal even if the noncitizen is a permanent resident with immediate family members who are U.S. citizens. Such an individual is also precluded from applying for asylum or naturalization or applying for relief from removal such as cancellation of removal. Upon removal from the United States, this person is permanently barred from returning to join his or her loved ones.

In recent times, the government, in its relentless pursuit of deporting noncitizens it brands as "criminal aliens," has sought expansive aggravated felony definitions that defy their plain English language meanings. The Board of Immigration Appeals (BIA) and Federal Courts of Appeal have accepted some of these definitions, although fortunately (and surprisingly), in the past two years, the United States Supreme Court has been applying the brakes.

State Drug Possession Convictions

In Lopez v. Gonzales, 2006 U.S. LEXIS 9442 (December 5, 2006), the U.S. Supreme Court held that an individual convicted for the first time under a state felony drug statute for simple possession cannot be considered an aggravated felon under immigration law if the same conviction is regarded as a misdemeanor under the federal Controlled Substances Act.

At issue is whether such a state felony conviction constitutes "illicit trafficking in a controlled substance (as defined in section 802 of the Controlled Substance Act)" so as to render the foreign national deportable as an aggravated felon. [1]

The government argued that as long as the state crime was a felony under South Dakota law and gave rise to even the slightest criminal sanction under the federal Controlled Substance Act, the conviction could be treated as an aggravated felony.

The Supreme Court flatly rejected the Government’s position as contrary to a plain reading of the relevant statutes. The 8-1 majority found that Congress failed to define "illicit trafficking" in INA § 101(a)(43)(B), and therefore, only did so by way of reference to the definition of "drug trafficking" set forth in 18 U.S.C. § 924(c)(2) as "any felony punishable under the Controlled Substances Act." In the instant case, the possession conviction was a felony under South Dakota law but was not a felony under the Controlled Substance Act.

Justice Souter, who wrote the majority opinion, began with an analysis of the term "trafficking" in the context of its "regular usage," and held that illicit trafficking crimes required some element of commercial dealing – an element that was completely absent from facts supporting the Petitioner’s possession conviction. [2] Comically alluding to Lewis Carroll’s "Alice in Wonderland and Through the Looking Glass," Justice Souter wrote, "Humpty Dumpty used a word to mean ‘just what [he chose] it to mean – neither more nor less,’ and legislatures too are free to be unorthodox." Essentially, Justice Souter was acknowledging that Congress may define statutory terms in a manner contrary to regular usage. However, the Court concluded that when Congress decides to depart from regular usage it must make its intention to do so clear, which it did not do here.

Thus, the Court narrowly interpreted 18 U.S.C. § 924(c)(2) to include only those crimes the CSA itself has specifically classified as felonies. The one qualification provided by the Court includes those state offenses, whose elements encompass all elements of a crime punishable as a felony under the CSA, within the definition of aggravated felony. In the instant case, the simple possession state conviction did not contain all the elements for a federal felony.

The Court’s decision would now treat a noncitizen convicted for the first time of a state felony simple drug possession offense (with the exception for persons convicted of possession of more than 5 grams of crack cocaine or any amount of fluitrazepam) as NOT being convicted of an aggravated felony for immigration purposes. This individual will no longer be ineligible to apply for cancellation of removal, asylum or naturalization. [3]

Crime of Violence Convictions

Lopez v. Gonzales closely follows another seminal Supreme Court decision that limited the definition of "crime of violence," another basis for characterizing a noncitizen as an aggravated felon.

In Leocal v. Ashcroft, 543 U.S. 1 (2004), the Supreme Court held that a conviction for driving under the influence of alcohol ("DUI") could not be classified as a "crime of violence" under 18 U.S.C. § 16, and therefore, an aggravated felony. [4] The unanimous Court found that regardless of whether the Government attempted to classify the DUI conviction as an aggravated felony under § 16(a) or (b), a DUI could not be found to imply "the use of force against the person or the property of another."

The Court found that a crime of violence under 18 U.S.C. § 16(a) required "active employment" of force to another. Again, the Court relied on the ordinary meaning of the language of the statute – in this case, the word "use." Similarly, with regard to § 16(b), which requires only that a "substantial risk that physical force against the person or property of another may be used," the Court found that such risk referred to the use of physical force, and not to the general conduct nor the possibility of harm. Therefore, the Court concluded, 18 U.S.C. § 16 "suggests a category of violent, active crimes that cannot be said naturally to include DUI offenses."

The Court further supported its decision with the fact that when Congress incorporated the definition for "serious criminal offense" into the INA, it separately added crimes of violence and crimes involving drinking and driving. [5]

Advocating For Plain Meaning Definition To Alien Smuggling

The Supreme Court’s decisions in Lopez and Leocal bode well for convincing the Board of Immigration Appeals (BIA) and Courts of Appeal to apply the plain meaning of statutory language to other categories of criminal conduct.

For instance, INA § 1101(a)(43)(N) treats a conviction under 8 U.S.C. § 274(a)(1)(A) or (2) "relating to alien smuggling" as an aggravated felony. However, the BIA has applied this aggravated ground of alien smuggling to offenses involving harboring or transporting, conduct that does not involve bringing a person across the border into the United States and should not be treated in the same vein as smuggling. See Matter of Ruiz-Romero, 22 I&N Dec. 486 (BIA 1999).

Prior to Leocal, the BIA’s broad interpretation of alien smuggling applying to either transporting or harboring was upheld by the Courts of Appeal. See Ruiz-Romero v. Reno, 205 F.3d 837; Gavilan-Cuate v. Yetter, 276 F.3d 418 (8th Cir. 2002); US v. Galinda-Gallego, 244 F.3d 728 (9th Cir. 2001). In light of Lopez and Leocal, practitioners should seek a reversal of the BIA’s broad interpretation of alien smuggling, as defined in Matter of Ruiz-Romero, supra.

Indeed, practitioners advocating for a "plain meaning interpretation" are finding support from the Supreme Court Justices. Perhaps, there is a public policy underpinning for a "plain meaning" interpretation since the aggravated felony provisions have punished noncitizens in a way that is disproportionate to their convictions. Just recently, on Decmeber 6, Justice Breyer stayed the deportation of Mr. Harood Rashid, a permanent resident of Pakistan, so that the Supreme Court can hear his appeal questioning whether his conviction for third-degree misdemeanor assault constitutes an aggravated felony. Although the Tenth Circuit ruled that the Colorado offense of misdemeanor assault is not a crime of violence under § 101(a)(43)(F), it was a crime of violence in Mr. Rashid’s case, and thus an aggravated felony, since he had asserted a self-defense argument in court and, in doing so, had admitted he used force to make his defense.[6]


Endnotes

1INA Section 101(a)(43) defines an "aggravated felony," in relevant part, as: "(B) [the] illicit trafficking in a controlled substance (as defined in section 802 of the Controlled Substance Act), including a drug trafficking crime (as defined in section 924 (c) of title 18)" and concludes, "The term applies to an offense described in this paragraph whether in violation of Federal or State law."

2 Although the Court noted that some federal possession offenses have been defined as "illicit trafficking" offenses, it explained that the drug offenses relevant to this case fell clearly within the definitions referenced by Congress in INA § 101(a)(43)(B).

3For a comprehensive analysis of Lopez decision and how it impacts clients, See the New York State Defenders Association, Immigrant Right Project, PRACTICE ADVISORY: REMOVAL DEFENSE OF IMMIGRANTS IN DRUG POSSESSION CASES—THE IMPACT OF LOPEZ V. GONZALES, (December 7, 2006), available at http://www.nysda.org/idp/docs/06_PostLopezAdvisoryforRemovalDefense%2012%207%2006.pdf.

4 INA § 101(a)(43)(F) provides, "a crime of violence (as defined in section 16 of title 18, but not including a purely political offense) for which the term of imprisonment at least one year."

5 INA § 101(h) for purposes of section 212(a)(2)(E) of this title, the term "serious criminal offense" means—
(1) any felony;
(2) any crime of violence, as defined in section 16 of title 18; or
(3) any crime of reckless driving or of driving while intoxicated or under the influence of alcohol or of prohibited substances if such crime involves personal injury to another.

6See www.scotusblog.com

This article originally appeared on www.cyrusmehta.com on December 9, 2006.


About The Author

Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City and is the managing member of Cyrus D. Mehta & Associates, P.L.L.C. He is the Past Chair of the Board of Trustees of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Secretary of the Association of the Bar of the City of New York and former Chair of the Committee on Immigration and Nationality Law of the same Association. He frequently lectures on various immigration subjects at legal seminars, workshops and universities.

Adam Ketcher is an Associate at Cyrus D. Mehta & Associates, PLLC where he practices immigration and nationality law. He received his J.D. in 2006 from Brooklyn Law School where he assisted with research for an upcoming casebook on international refugee law and was the recipient of the Edward V. Sparer Public Interest Law Fellowship. Adam has worked as a legal intern for Catholic Charities’ Immigrant and Refugee Department, U.S. Citizenship & Immigration Services, and as a summer law clerk for the Executive Office of Immigration Review, New York City Immigration Court. His application for admission to the New York State Bar is currently pending.


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