INTRODUCTION :: Jose Rodriguez is one of the lucky ones. Rodriguez, a legal permanent resident of the United States since 1990, was arrested in May 2003 for possession of less than one gram of cocaine. Rodriguez pleaded no contest and was sentenced to probation. Nearly a year later, in April 2004, immigration officials brought him back into custody. Officials claimed that Rodriguez’s crime-a misdemeanor by federal definitions, but a felony under state law-counted as a felony in the immigration context, triggering deportation proceedings for the non-citizen. Thus for a crime for which he originally spent one night in jail, Rodriguez soon racked up nearly three additional years in detention waiting for his lawyer to exhaust his appeals. Rodriguez’s stay in deportation limbo eventually ended in 2007, after the Supreme Court found that a drug offense classified as a felony only under state law is insufficient to qualify as an aggravated felony under the federal immigration statute. Rodriguez, who finally reunited with his four U.S.-citizen children and his U.S.- citizen wife in January 2007, found that despite his added incarceration time, the victory was “worth the sacrifice.”
Yet there are many others who are less fortunate and lack the resources to challenge their deportations, much less receive favorable rulings as absolute as one from the Supreme Court. Each year the government deports thousands of aliens who are also legal permanent residents from the United States. A significant number of these deportation orders are based on the aggravated felony provision of the Immigration and Nationality Act (INA). Under this provision, any alien convicted of an aggravated felony as defined under the INA may be deported and simultaneously rendered ineligible for cancellation of removal. In its current iteration, the INA lists twenty-one categories of offenses that qualify as an aggravated felony for immigration purposes. These offenses range in severity from murder to failure to appear before a court. Their definitions range in specificity from cross-references to definitions in Title of the United States Code, to offenses “relating to” crimes described in general and vague terms. This disparate clarity has opened several avenues for generous interpretations and permitted courts to apply the term “aggravated felony” to some crimes that are little more than misdemeanors.
It comes as little surprise that in the 2006-2007 term alone the Supreme Court found it necessary to further clarify two categories of the aggravated felony definition. Yet the Supreme Court’s attempted clarifications have had limited impact. The Court’s method of interpretation may not always apply to other categories of the aggravated felony definition. Although the Court has provided some substantive guidance, this guidance has come at a gradual pace and in incremental amounts. The Court’s slow-paced clarifications have come at the expense of countless aliens who have, in the meantime, remained in detention awaiting a final ruling.
Meanwhile, questions still remain for several other categories of the aggravated felony definition. As lower courts attempt to refine some of the vaguer terms in the definition, inconsistency among the circuits in defining the scope of the other, less easily interpreted aggravated felony categories has led to further complications. But because several of the categories use vague terms to describe other vague terms, statutory construction can offer only a limited solution. The problems with the INA’s aggravated felony provision go deeper than what can be resolved through court interpretation. As this Note shows, it is the INA’s text itself-a poor reflection of what the government has claimed it values in its immigration policy-that has led to such messy results. It is the text itself, not the method of interpretation, that must be reworked to achieve any lasting clarity.
This Note highlights the problems that have surfaced and considers what changes should be made to clear the fog surrounding the INA aggravated felony definition. Part II describes the development of the aggravated felony grounds for deportation and details the complications that follow this type of deportation order. Part III then focuses on the problems with specific categories of aggravated felonies. In particular, it shows how courts have interpreted several categories by looking at cross-references to the federal code and at common-law definitions. It also examines what aspects of the definition still require more clarification and what effect some of the broader language found in the aggravated felony provision has on the scope of the categories. Part IV discusses how these more ambiguous aspects of the provision have led courts to ignore the lower threshold that Congress initially placed on the provision’s applicability. It also discusses the individual and institutional burdens arising from these ambiguities and evaluates the effectiveness of the current methods of interpretation applied to the provision. Finally, Part V proposes a means of clarifying the current aggravated felony provision.
April 2014, Vol. 66, No. 2
Sergio J. Campos, Class Actions and Justiciability
Andrew Guthrie Ferguson, Constitutional Culpability: Questioning the New Exclusionary Rules
Alberto R. Gonzales & Amy L. Moore, No Right at All: Putting Consular Notification in its Rightful Place After Medellin
Kevin J. Lynch, The Lock-in Effect of Preliminary Injunctions
Anne R. Traum, Using Outcomes to Reframe Guilty Plea Adjudication
Stephen E. Ludovici, Rule 60(b)(4): When the Courts of Limited Jurisdiction Yield to Finality