NYSDA Immigrant Defense Project - Litigation - Aggravated Felony Challenges

In Dickson, 346 F2d 44 (2nd Cir. 2003), the Second Circuit ruled that the Board of Immigration Appeals (BIA) may not rely on factual narratives in a pre-sentence report (PSR) to determine the crime for which an alien has been convicted. New York's crime of unlawful imprisonment in the first degree, NY Penal Law § 135.10, was divisible into crimes that were categorically grounds for removal (aggravated felony) and others that were not. The BIA was permitted to consult the record of conviction to determine the specific crime for which petitioner was convicted. However, it improperly relied upon a narrative statement of facts, based on hearsay, contained in the pre-sentence report prepared for petitioner's criminal proceedings. IDP was represented by Paul A. Englemayer, Terry A. Maroney and Anjan Sahni of Wilmer, Cutler & Pickering LLP.

Amici Brief: Jobson v. Ashcroft (April 2002)

Second Circuit: In Jobson v. Ashcroft, 326 F3d 367 (2nd Cir 2003), the Second Circuit held that New York Manslaughter in the second degree under New York Penal Law § 125.15(1) was not a crime of violence under 18 USC § 16 and thus not an aggravated felony for immigration law purposes. IDP’s amicus brief had supported that result. IDP was represented by Paul A. Engelmayer and Deirdre D. von Dornum of Wilmer, Cutler & Pickering LLP.

Amici Brief: U.S. v. Pacheco (2000)

Second Circuit: IDP filed this brief in support of the defendant-appellant’s petition for rehearing and petition for rehearing en banc, seeking reconsideration of the Second Circuit's earlier decision finding that certain misdemeanors may be deemed “aggravated felonies” for illegal reentry sentencing purposes.

IDP Litigation - Aggravated Felony Challenges

The immigration consequences of a conviction often far outweigh the criminal ones, and a terrible human cost can result from an immigrant’s conviction of even a minor criminal offense. The consequences include detention for months or years without the right to release on bond, processing in deportation proceedings with limited due process rights, and eventual permanent banishment without hope of lawful return. Those at risk include lawful permanent residents (“green card holders”) who have lived here lawfully for decades, and refugees fleeing persecution abroad, as well as other noncitizens who have a means to obtain lawful immigration status such as U.S. citizen family or employer sponsorship. In addition, because the U.S. immigration population is so large, and it is common for families to include both citizens and noncitizens, these deportations break up many families of U.S. citizens.

A primary source of the law’s current harshness is the immigration law provisions relating to state and federal criminal offenses deemed to be “aggravated felonies.” The term “aggravated felony” is a term of art used in immigration law, as well as in federal criminal practice for sentencing in illegal re-entry cases. A harsh result of finding an offense to be an “aggravated felony” is that it places the individual at risk of mandatory detention and deportation, without consideration of circumstances such as complete rehabilitation, long residence and extensive family ties in the United States, military or other community service to this country, or even risk of persecution in the country of removal. As broadly defined by Congress particularly in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), and as expansively interpreted by federal immigration enforcement authorities, the term—which sounds as if it is reserved for aggravated or fairly serious felony offenses—may reach relatively minor offenses, such as state-classified misdemeanors that result in little or no jail time. For background, see June 2006 report on “Aggravated Felonies and Deportation” prepared by the Transactional Records Access Clearinghouse.

Challenging Mandatory Deportation Based on Overreaching Aggravated Felony Charges. For years, IDP has been supporting challenges to the federal government’s overreaching interpretations of various portions of the deportation law definition of what constitutes conviction of an aggravated felony. Most recently, IDP has provided support to immigrants challenging decisions issued by the federal government that carve out exceptions to the long-recognized categorical approach for determining whether an immigrant’s past conviction may be deemed conviction of an “aggravated felony” or other deportable offense. The categorical approach has traditionally provided that the immigration agency, as well as the immigrant, is bound by what was established by the prior criminal conviction and neither party may go beyond the record of conviction. On January 16, 2009, the Supreme Court granted certiorari in Nijhawan v. Holder, a case challenging the government’s abandonment of the categorical approach with respect to the monetary loss determination required for an offense to be deemed a fraud offense “aggravated felony.” IDP has provided support to petitioner’s counsel and coordinated the efforts of various immigrant rights and criminal justice organizations filing amicus curiae briefs in the case. For the briefs filed before the Supreme Court in this case, click here. In a related case, IDP has supported efforts to challenge former Attorney General Mukasey’s November 7, 2008 opinion in Matter of Silva-Trevino, which largely abandoned the traditional categorical approach for evaluating deportability or inadmissibility based on past conviction of a crime involving moral turpitude and replaced it with an unprecedented inquiry into facts outside the criminal court record. For the most recent amicus curiae filing in this case in which IDP joined others in requesting that new Attorney General Eric Holder withdraw Attorney General Mukasey’s expansive opinion in the case, click here. In the past, IDP supported successful litigation challenging overbroad interpretations of the mandatory deportation aggravated felony ground in Lopez v. Gonzales (see below description of Drug Litigation Initiative) and Leocal v. Ashcroft (see below).

Drug Litigation Initiative: Challenging Mandatory Deportation for Low-Level Drug Offenses. IDP has been challenging in multiple courts and before the Board of Immigration Appeals the government’s overbroad interpretations of what constitutes a “drug trafficking crime” aggravated felony. On April 3, 2006, the Supreme Court issued orders granting certiorari in two cases challenging federal circuit court holdings that the "illicit drug trafficking" aggravated felony category includes simple possession offenses. One case arose out of the 8th Circuit in the immigration removal proceedings context. Lopez v. Gonzales (Docket No. 05-547). The other case arose out of the Fifth Circuit in the criminal illegal reentry aggravated felony sentence enhancement context. Toledo-Flores v. U.S. (Docket No. 05-7664). The NYSDA Immigrant Defense Project, along with the National Immigration Project, coordinated amicus briefing and other advocacy to limit this broad interpretation of the aggravated felony mandatory detention and deportation ground. On December 5, 2006, in an 8-1 decision, the U.S. Supreme Court ruled that the federal government has been misapplying the mandatory deportation “drug trafficking” aggravated felony label to simple possession offenses that would be misdemeanors under federal law. See Lopez v. Gonzales, 127 S.Ct. 625 (2006). The Immigrant Defense Project is now supporting litigation to further limit the federal government’s application of the “drug trafficking” aggravated felony mandatory deportation ground to non-trafficking offenses. For more on our drug litigation initiative, click here.

Amici Brief: Leocal v. Ashcroft (May 2004)

U.S. Supreme Court: In Leocal, 543 U.S. 1 (2004), the Supreme Court held that a driving under the influence offense must have as an element a mens rea of at least recklessness in order to be deemed a “crime of violence” aggravated felony. IDP and fellow amici the Defending Immigrants Partnership, the American Civil Liberties Union, the American Immigration Lawyers Association and the National Association of Criminal Defense Lawyers submitted a brief of amici urging a narrowed reading of the “crime of violence” definition. Amici were represented by Paul A. Engelmayer, Douglas F. Curtis and Jon Connolly of Wilmer, Cutler & Pickering LLP.

Amici Brief: Dickson v Ashcroft (November 2002)

Second Circuit: IDP’s amicus brief addressed the question of whether New York unlawful imprisonment constitutes a “crime of violence” for designation as an “aggravated felony” under the immigration statute. The brief also addressed the propriety of an Immigration Judge and the Board of Immigration Appeals relying on a presentence report to determine whether a conviction constituted a “crime of violence.”



	In Dickson, 346 F2d 44 (2nd Cir. 2003), the Second Circuit ruled that the Board of Immigration Appeals (BIA) may not rely on factual narratives in a pre-sentence report (PSR) to determine the crime for which an alien has been convicted. New York's crime of unlawful imprisonment in the first degree, NY Penal Law § 135.10, was divisible into crimes that were categorically grounds for removal (aggravated felony) and others that were not. The BIA was permitted to consult the record of conviction to determine the specific crime for which petitioner was convicted. However, it improperly relied upon a narrative statement of facts, based on hearsay, contained in the pre-sentence report prepared for petitioner's criminal proceedings. IDP was represented by Paul A. Englemayer, Terry A. Maroney and Anjan Sahni of Wilmer, Cutler & Pickering LLP. Amici Brief: Jobson v. Ashcroft (April 2002) Second Circuit: In Jobson v. Ashcroft, 326 F3d 367 (2nd Cir 2003), the Second Circuit held that New York Manslaughter in the second degree under New York Penal Law § 125.15(1) was not a crime of violence under 18 USC § 16 and thus not an aggravated felony for immigration law purposes. IDP’s amicus brief had supported that result. IDP was represented by Paul A. Engelmayer and Deirdre D. von Dornum of Wilmer, Cutler & Pickering LLP. Amici Brief: U.S. v. Pacheco (2000) Second Circuit: IDP filed this brief in support of the defendant-appellant’s petition for rehearing and petition for rehearing en banc, seeking reconsideration of the Second Circuit's earlier decision finding that certain misdemeanors may be deemed “aggravated felonies” for illegal reentry sentencing purposes. IDP Litigation - Aggravated Felony Challenges The immigration consequences of a conviction often far outweigh the criminal ones, and a terrible human cost can result from an immigrant’s conviction of even a minor criminal offense. The consequences include detention for months or years without the right to release on bond, processing in deportation proceedings with limited due process rights, and eventual permanent banishment without hope of lawful return. Those at risk include lawful permanent residents (“green card holders”) who have lived here lawfully for decades, and refugees fleeing persecution abroad, as well as other noncitizens who have a means to obtain lawful immigration status such as U.S. citizen family or employer sponsorship. In addition, because the U.S. immigration population is so large, and it is common for families to include both citizens and noncitizens, these deportations break up many families of U.S. citizens. A primary source of the law’s current harshness is the immigration law provisions relating to state and federal criminal offenses deemed to be “aggravated felonies.” The term “aggravated felony” is a term of art used in immigration law, as well as in federal criminal practice for sentencing in illegal re-entry cases. A harsh result of finding an offense to be an “aggravated felony” is that it places the individual at risk of mandatory detention and deportation, without consideration of circumstances such as complete rehabilitation, long residence and extensive family ties in the United States, military or other community service to this country, or even risk of persecution in the country of removal. As broadly defined by Congress particularly in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), and as expansively interpreted by federal immigration enforcement authorities, the term—which sounds as if it is reserved for aggravated or fairly serious felony offenses—may reach relatively minor offenses, such as state-classified misdemeanors that result in little or no jail time. For background, see June 2006 report on “Aggravated Felonies and Deportation” prepared by the Transactional Records Access Clearinghouse. Challenging Mandatory Deportation Based on Overreaching Aggravated Felony Charges. For years, IDP has been supporting challenges to the federal government’s overreaching interpretations of various portions of the deportation law definition of what constitutes conviction of an aggravated felony. Most recently, IDP has provided support to immigrants challenging decisions issued by the federal government that carve out exceptions to the long-recognized categorical approach for determining whether an immigrant’s past conviction may be deemed conviction of an “aggravated felony” or other deportable offense. The categorical approach has traditionally provided that the immigration agency, as well as the immigrant, is bound by what was established by the prior criminal conviction and neither party may go beyond the record of conviction. On January 16, 2009, the Supreme Court granted certiorari in Nijhawan v. Holder, a case challenging the government’s abandonment of the categorical approach with respect to the monetary loss determination required for an offense to be deemed a fraud offense “aggravated felony.” IDP has provided support to petitioner’s counsel and coordinated the efforts of various immigrant rights and criminal justice organizations filing amicus curiae briefs in the case. For the briefs filed before the Supreme Court in this case, click here. In a related case, IDP has supported efforts to challenge former Attorney General Mukasey’s November 7, 2008 opinion in Matter of Silva-Trevino, which largely abandoned the traditional categorical approach for evaluating deportability or inadmissibility based on past conviction of a crime involving moral turpitude and replaced it with an unprecedented inquiry into facts outside the criminal court record. For the most recent amicus curiae filing in this case in which IDP joined others in requesting that new Attorney General Eric Holder withdraw Attorney General Mukasey’s expansive opinion in the case, click here. In the past, IDP supported successful litigation challenging overbroad interpretations of the mandatory deportation aggravated felony ground in Lopez v. Gonzales (see below description of Drug Litigation Initiative) and Leocal v. Ashcroft (see below). Drug Litigation Initiative: Challenging Mandatory Deportation for Low-Level Drug Offenses. IDP has been challenging in multiple courts and before the Board of Immigration Appeals the government’s overbroad interpretations of what constitutes a “drug trafficking crime” aggravated felony. On April 3, 2006, the Supreme Court issued orders granting certiorari in two cases challenging federal circuit court holdings that the "illicit drug trafficking" aggravated felony category includes simple possession offenses. One case arose out of the 8th Circuit in the immigration removal proceedings context. Lopez v. Gonzales (Docket No. 05-547). The other case arose out of the Fifth Circuit in the criminal illegal reentry aggravated felony sentence enhancement context. Toledo-Flores v. U.S. (Docket No. 05-7664). The NYSDA Immigrant Defense Project, along with the National Immigration Project, coordinated amicus briefing and other advocacy to limit this broad interpretation of the aggravated felony mandatory detention and deportation ground. On December 5, 2006, in an 8-1 decision, the U.S. Supreme Court ruled that the federal government has been misapplying the mandatory deportation “drug trafficking” aggravated felony label to simple possession offenses that would be misdemeanors under federal law. See Lopez v. Gonzales, 127 S.Ct. 625 (2006). The Immigrant Defense Project is now supporting litigation to further limit the federal government’s application of the “drug trafficking” aggravated felony mandatory deportation ground to non-trafficking offenses. For more on our drug litigation initiative, click here. Amici Brief: Leocal v. Ashcroft (May 2004) U.S. Supreme Court: In Leocal, 543 U.S. 1 (2004), the Supreme Court held that a driving under the influence offense must have as an element a mens rea of at least recklessness in order to be deemed a “crime of violence” aggravated felony. IDP and fellow amici the Defending Immigrants Partnership, the American Civil Liberties Union, the American Immigration Lawyers Association and the National Association of Criminal Defense Lawyers submitted a brief of amici urging a narrowed reading of the “crime of violence” definition. Amici were represented by Paul A. Engelmayer, Douglas F. Curtis and Jon Connolly of Wilmer, Cutler & Pickering LLP. Amici Brief: Dickson v Ashcroft (November 2002) Second Circuit: IDP’s amicus brief addressed the question of whether New York unlawful imprisonment constitutes a “crime of violence” for designation as an “aggravated felony” under the immigration statute. The brief also addressed the propriety of an Immigration Judge and the Board of Immigration Appeals relying on a presentence report to determine whether a conviction constituted a “crime of violence.”







Last Updated: 5/1/09
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