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Supreme Court Shortens Reach of "Aggravated Felonies"*
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By Stanley Mailman and Stephen Yale-Loehr** When is a felony under state law not a felony? When it is a misdemeanor under federal law. So ruled the U.S. Supreme Court in Lopez v. Gonzales, 549 U.S. ___, 2006 U.S. LEXIS 9442 (Dec. 5, 2006). The Court ruled 8-1 that a noncitizen is not subject to mandatory deportation for a simple possession drug crime that, while a felony in the state where the crime was prosecuted, is only a misdemeanor under federal law. Several thousand immigrants now residing in the United States will benefit from the ruling in Lopez. Lopez and other recent cases show once again the nexus of immigration law with its sister disciplines. The cases also reemphasize that criminal lawyers should consider the possible immigration consequences of guilty pleas or criminal convictions for their noncitizen clients. We analyze below the intersection of criminal and immigration law, or "crimmigration" law, as some people are starting to call it. "Aggravated Felonies" In Lopez the Court had to interpret one aspect of "aggravated felony," a term of art in immigration law. The term was first used in 1988, and at the time referred only to serious crimes such as murder and rape. Over the years Congress has expanded it to include a multitude of crimes, including certain drug trafficking crimes, a crime of violence or theft offenses for which the jail term is at least a year, and certain crimes involving fraud or deceit. See Immigration and Nationality Act (INA) § 101(a)(43), 8 U.S.C. § 1101(a)(43). It can even include convictions for crimes that are only considered misdemeanors under state law. See, e.g., Gattem v. Gonzales, 412 F.3d 758 (7th Cir. 2005) (conviction for solicitation of sexual act by minor, although a misdemeanor under Illinois law, constituted an aggravated felony for immigration purposes). Noncitizens convicted of aggravated felonies are deportable. They are also subject to mandatory detention and are ineligible for most types of immigration relief, including asylum, cancellation of removal, and voluntary departure. They are also generally precluded from judicial review. See generally 6 Charles Gordon, Stanley Mailman & Stephen Yale-Loehr, Immigration Law and Procedure § 71.05[2] (2006). Lopez v. Gonzales Lopez involved the opposite situation of Gattem: a crime that was a felony under state law but a misdemeanor under federal law. Jose Antonio Lopez was a lawful permanent resident from Mexico. In 1997, he pleaded guilty to aiding and abetting another person's possession of cocaine, a felony under South Dakota law. The immigration agency later started removal proceedings against him. The immigration agency noted that the list of aggravated felonies in INA § 101(a)(43), 8 U.S.C. § 1101(a)(43), includes "illicit trafficking in a controlled substance . . . including a drug trafficking crime" as defined in 18 U.S.C. § 924(c). The immigration law does not define "illicit trafficking," but 18 U.S.C. § 924(c) defines "drug trafficking crime" as "any felony punishable under the Controlled Substances Act." INA § 101(a)(43), 8 U.S.C. § 1101(a)(43) also provides that the term "aggravated felony" applies to a crime under either federal or state law. Putting these provisions together, the immigration agency argued that "any felony" meant any crime that was considered a felony either under federal law or in the state where the prosecution took place. In this way, a conviction for simple possession could become a drug trafficking offense and hence an aggravated felony. The immigration judge agreed, and ordered Mr. Lopez deported. The Board of Immigration Appeals affirmed, as did the U.S. Court of Appeals for the Eighth Circuit. The Supreme Court took the case to resolve a split in the circuits. Writing for the majority, Justice David H. Souter said the government's interpretation was based on a strained and implausible reading of the definition of "drug trafficking crime" in the federal criminal code. In analyzing the government's position that any offense "punishable" under the Controlled Substances Act therefore became a "drug trafficking" felony, Justice Souter said that "there are a few things wrong with this argument, the first being its incoherence." Majority slip op. at 5. While "trafficking" ordinarily "means some sort of commercial dealing," he wrote, "[c]ommerce . . . was no part of Lopez's South Dakota offense of helping someone else to possess." Id. (citations omitted). Justice Souter continued that while the government's argument appeared implausible, that was "not to deny that the Government might still be right; Humpty Dumpty used a word to mean 'just what [he chose it] to mean -- neither more nor less.'" Id. at 6 (quoting Lewis Carroll's Alice in Wonderland). Similarly, "legislatures, too, are free to be unorthodox." Id. But in this instance, he wrote, if Congress meant to define drug trafficking in such an "unexpected way," "Congress would need to tell us so, and there are good reasons to think it was doing no such thing here." Id. (footnote omitted). Justice Souter noted that under the government's interpretation, deportation would depend not on a federal judgment about the seriousness of an offense, but on "varying state criminal classifications." Id. at 10. He added, "We cannot imagine that Congress took the trouble to incorporate its own statutory scheme of felonies and misdemeanors if it meant courts to ignore it whenever a state chose to punish a given act more heavily." Id. Justice Souter also noted that the government admitted at oral argument that it had never prosecuted someone under the Controlled Substances Act where the underlying drug trafficking crime was a felony under state law but only a misdemeanor under federal law. "This is telling: the failure of even a single eager Assistant United States Attorney to act on the Government's interpretation of "felony punishable under the [CSA]" in the very context in which that phrase appears in the United States Code belies the Government's claim that its interpretation is the more natural one." Id. at 9. The majority concluded that "a state offense constitutes a 'felony punishable under the Controlled Substances Act' only if it proscribes conduct punishable as a felony under that federal law." Id. at 12. Leocal v. Ashcroft This is not the first time the Supreme Court has rejected the government's broad interpretation of the term "aggravated felony." In a unanimous opinion two years ago, the Court ruled that contrary to the government's view, driving while intoxicated (DWI) was not a "crime of violence" for which an immigrant could be labeled an aggravated felon and deported. Leocal v. Ashcroft, 543 U. S. 1 (2004). Specifically, Leocal held that state DWI offenses that either do not have a mens rea component or require only a showing of negligence in the operation of a vehicle do not qualify as crimes of violence for immigration purposes. Gonzales v. Duenas-Alvarez The Supreme Court will decide another aggravated felony case within the next few months. The same day that the Court handed down its decision in Lopez, it heard oral argument in Gonzales v. Duenas-Alvarez (05-1629). The issue in that case is whether a "theft offense," which is an aggravated felony under the INA, includes aiding and abetting. A theft offense is an aggravated felony for immigration purposes if it is "a theft offense (including receipt of stolen property) . . . for which the term of imprisonment [is] at least one year." INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G). "Theft offense" refers not to any particular state's crime, but rather to a "generic" definition of theft: i.e., the sense in which the term is used in the criminal codes of most states. To determine whether a particular state's crime is a "theft offense," courts engage in a two-step test outlined by the Supreme Court in Taylor v. United States, 495 U.S. 575 (1990). The first step is a "categorical approach" that evaluates whether all the conduct covered by the statute falls within the generic definition. If not, the second step is a "modified categorical approach," in which courts consider a limited number of documents (such as the charging instrument) to determine whether the defendant's offense falls within the generic definition. Luis Duenas-Alvarez, a lawful permanent resident from Peru, was convicted in 2002 of violating California Vehicle Code § 10851, which prohibits the taking or driving of a vehicle "without the consent of the owner" and "with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal." The Ninth Circuit, applying Penuliar v. Ashcroft, 395 F.3d 1037 (9th Cir. 2005), amended opinion at 435 F.3d 961 (9th Cir. 2006), held that a violation of § 10851 was not a "theft offense" under Taylor's categorical approach because the California statute covers aiding-and-abetting liability, while the generic definition of a "theft offense" does not. The government estimates there are approximately 8,000 aliens in the Ninth Circuit alone who are removable because they were convicted of a theft offense. Petition for a writ of certiorari at 16, at http://www.scotusblog.com/movabletype/archives/Reasonable/05-1629.pdf. Rashid v. Gonzales The Supreme Court may soon add another aggravated felony case to its docket. On December 6, Justice Stephen G. Breyer delayed the imminent deportation of a lawful permanent resident. Rashid v. Gonzales, No. 06A557 (Dec. 6, 2006), at http://www.supremecourtus.gov/docket/06a557.htm. Mr. Rashid faces deportation for a conviction under Colorado law of misdemeanor assault after he struck a teenager who, he said, had "ethnically harassed him." Justice Breyer's order delays Mr. Rashid's removal to Pakistan until after the Supreme Court decides whether to take his pending appeal from the Tenth Circuit. His petition for review contends that the circuits are split on whether a misdemeanor assault conviction constitutes an aggravated felony involving violence or the threat of violence. Although the Tenth Circuit ruled that misdemeanor assault in Colorado is not a crime of violence under state law, it nonetheless ruled that Rashid's conviction was an aggravated felony for immigration purposes because he had asserted a self-defense argument in court and thus had admitted the use of force. Rashid v. Gonzales, No. 05-9535, 2006 U.S. App. LEXIS 20044 (10th Cir. Aug. 3, 2006). Justice Breyer's stay increases the likelihood that the Supreme Court will take the case. Other Aggravated Felony Controversies Courts struggle every day with difficult interpretive issues of what constitutes an aggravated felony for immigration purposes. For example, courts disagree over whether certain types of manslaughter constitute a crime of violence and hence an aggravated felony. The Ninth Circuit has held that involuntary manslaughter under California law is a crime of violence and hence an aggravated felony. Park v. INS, 252 F.3d 1018 (9th Cir. 2001). By contrast, the Second Circuit has held that second degree manslaughter in New York is not a crime of violence. Jobson v. Ashcroft, 326 F.3d 367 (2d Cir. 2003). The Board of Immigration Appeals has held that first degree manslaughter under New York law is a crime of violence. Matter of Vargas-Sarmiento, 23 I. & N. Dec. 651 (BIA 2003). Based on the divisibility of the statutes, the courts of appeals have also reached different decisions concerning the crime of "burglary of a vehicle." Compare United States v. Galvan-Rodriguez, 169 F.3d 217 (5th Cir. 1999) (unauthorized use of another's car ("joyriding") is a crime of violence and hence an aggravated felony) with Sareang Ye v. INS, 214 F.3d 1128 (9th Cir. 2000) (vehicle burglary under California law not a crime of violence because there is little risk of violence). Conclusion As these cases suggest, the federal courts face complex issues concerning the intersection of criminal and immigration law every day. Nearly 90,000 immigrants a year are deported for criminal convictions. See DHS, Immigration Enforcement Actions: 2005, at http://www.dhs.gov/xlibrary/assets/statistics/yearbook/2005/Enforcement_AR_05.pdf. And Congress is considering adding to the list of aggravated felonies. See, e.g., Stanley Mailman & Stephen Yale-Loehr, Immigration Reform: Problematic Provisions in the Senate's Reform Bills, New York Law Journal, April 19, 2006, at 3. Courts will be struggling with "crimmigration" law for years. ** Stanley Mailman and Stephen Yale-Loehr are co-authors of Immigration Law and Procedure, published by LexisNexis Matthew Bender. Mr. Mailman is counsel to Satterlee Stephens Burke & Burke in New York City. Mr. Yale-Loehr is of counsel at Miller Mayer in Ithaca, N.Y., and teaches immigration and asylum law at Cornell Law School.
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