Expedited injustice: The problems regarding the current law of expedited removal of aggravated felons

Vanderbilt Law Review

Volumn 60, Issue 6, 2007, Pages 1847-1874

  Kennedy, Andrew David ^a  

^a VANDERBILT UNIVERSITY   (United States)

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EID: 39549096006     PISSN: 00422533     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (182)

1. Bill Johnson, Who Committed the Real Crime? The Feds, ROCKY MOUNTAIN NEWS (Denver), Sept. 20, 2006, at 7A.
2. Id.
3. Id.
4. Id.;
5. see also Alan Rimmer, Blitz on Britain: Evil Bin Laden's Bodyguard? He's a Man Utd Fan, Had a White Girlfriend and Left School with Half an O Level, SUNDAY MIRROR (London), Aug. 7, 2005, at 16 (relating the history of similarly named Haroon Rashid Aswat, who allegedly masterminded the July, 2005 London transit bombings).
6. Johnson, supra note 1.
7. Id.
8. Id.
9. Bruce Finley, Pakistani Could Be Deported As Immigration Case Dropped, DENV. POST, Nov. 3, 2006, at A-01.
10. Id.;
11. see also Immigration and Nationality Act of 1952 § 238, 8 U.S.C. § 1228(a) (2000) (enacting expedited removal procedures).
12. Johnson, supra note 1.
13. See id. (noting that federal name misidentification led to Rashid's deportation).
14. See, e.g., Lehman v. United States ex rel. Carson, 353 U.S. 685, 691 (1957) (Black, J., concurring) (noting that deportation is "punishment of the most drastic kind").
15. See 8 U.S.C. § 1228(a) (enacting deportation procedures as separate from incarceration and punishment procedures);
16. see also id. § 1101(a)(43) (2000 & Supp. V 2005) (defining aggravated felonies as vicious crimes such as murder, rape, and sexual abuse of minors, among others).
17. See infra Part II (discussing the controversial history of federal deportation law).
18. See 8 U.S.C. § 1228(a)-(b) (2000) (granting Attorney General wide discretion to establish expedited removal procedures without protections typical to deportations).
19. See 136 CONG. REC. S17, 117-18 (1990) (statement of Sen. Graham) ('The aggravated felony aliens' provisions in the 1988 [Anti-Drug Abuse Act] were important steps toward solving a major problem . . . of how to expeditiously remove from our streets those aliens who are convicted of [violent crimes].");
20. see also 1 CHARLES GORDON, STANLEY MAILMAN & STEPHEN YALELOEHR, IMMIGRATION LAW & PROCEDURE § 2.04(10)(c)(i) (2007) (describing the Anti-Drug Abuse Act of 1988 as "a major statutory effort to cope with the epidemic of narcotics traffic").
21. See Linda Drazga Maxfield, Aggravated Felonies and § 2L1.2 Immigration Unlawful Reentry Offenders: Simulating the Impacts of Proposed Guideline Amendments, 11 GEO. MASON L. REV. 527, 529 (2003) (describing changes in the definition of an aggravated felony).
22. Id.
23. See, e.g., Patrick McGee, Deportations Have Spiked Over Decade, FORT WORTH STARTELEGRAM, Sept. 17, 2006, at A17 (noting legislative trend in classifying minor crimes as "aggravated felonies" to widen deportation options).
24. Id.
25. See 136 CONG. REC. S17,117-18 (1990).
26. See, e.g., Demore v. Kim, 538 U.S. 510, 513 (2003) (reviewing petition of an immigrant who was ordered to be deported under aggravated felony rules after burglary and petty theft convictions);
27. Randhawa v. Ashcroft, 298 F.3d 1148, 1154 (9th Cir. 2002) (reviewing petition of an immigrant who was ordered to be deported under aggravated felony rules after petty mail theft conviction).
28. Lara Jakes Jordan, Re-Arrest Rate Among Illegal Immigrants High, Study Says; Group Questions How "Felon" Was Defined in the Report, FORT LAUDERDALE SUN-SENTINEL, Jan. 9, 2007, at 3A.
29. See, e.g., Comprehensive Immigration Reform Act of 2006, S. 2611, 109th Cong. (2006) (proposing bi-partisan immigration reform).
30. Id. § 202 (proposing adding the crimes of illegal entry and reentry, which carry a sentence of one year or more, to the list of aggravated felonies).
31. See Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, § 7347, 102 Stat. 4181, 4471-72 (1988) (codified as amended at 8 U.S.C. § 1228 (2000)) (authorizing expedited removal of immigrant aggravated felons).
32. See U.S. CONST, amends. XLX, XXTV, XXVI (extending the right to vote only to United States citizens older than age 18);
33. see also Romer v. Evans, 517 U.S. 620, 634 (1996) (affirming state power to deny the right to vote to convicted felons).
34. See infra Part II.B (discussing the rapid changes in the expedited removal law since its 1988 introduction).
35. Immigration and Nationality Act of 1952 § 238, 8 U.S.C. § 1228(a) (2000).
36. Id. § 1226(c)(1);
37. see also Demore v. Kim, 538 U.S. 510, 517 (2003) (holding that the government may deny bail when detaining immigrants convicted of aggravated felonies under 8 U.S.C. section 1226(c) without violating the Fifth Amendment's Due Process clause).
38. 8 U.S.C. § 1226(e). Although the statute was deemed unconstitutional by the Third, Fourth, Ninth, and Tenth Circuits, the Supreme Court affirmed its constitutionality in Demore v. Kim. 538 U.S. at 515-16.
39. Demore, 538 U.S. at 541 (Souter, J., dissenting).
40. 8 U.S.C. § 1182(h) (denying issuance of a "waiver" from Attorney General to aggravated felons).
41. Immigration and Nationality Act of 1952 § 238, 8 U.S.C. § 1228(a) (2000).
42. Id. § 1254a.
43. Id. Even if an immigrant can obtain review of the decision to deport her, such appeals seldom result in favorable decisions for aggravated felons. 6 GORDON, MAILMAN & YALE-LOEHR, supra note 16, § 72.05(2)(c).
44. Id. § 72.05(2)(a).
45. Id.
46. Id. § 72.05(2)(c).
47. Id.
48. Id.
49. Id. (citing 8 U.S.C. § 1259(c) (2000)).
50. Id. § 72.05(2)(b)(i).
51. See also Immigration and Nationality Act of 1952 § 238, 8 U.S.C. § 1228(a) (2000).
52. 8 U.S.C. § 1252 (2000 & Supp. V 2005).
53. Id. § 1182 (2000).
54. Id. § 1326.
55. 8 U.S.C. § 1101;
56. see also Maxfield, supra note 17, at 530.
57. United States v. Booker, 543 U.S. 220, 237-39 (2005) (holding that federal sentencing guidelines could not be mandatory because they violated the Due Process Clause by punishing an offender to a predetermined level without consideration of her individual circumstances).
58. See 8 U.S.C. § 1227 (2000 & Supp. V 2005) (categorizing deportable aliens).
59. Pub L. No. 100-690, 102 Stat. 4181 (codified in scattered titles and sections of U.S.C).
60. Id. § 7342 (codified as amended at 8 U.S.C. § 1101(a)(43)).
61. Id.
62. Theresa A. Miller, Citizenship & Severity: Recent Immigration Reforms and the New Penology, 17 GEO. IMMIGR. L.J. 611, 625-26 (2003).
63. Id.
64. Id.
65. Id.
66. See, e.g., 136 CONG. REC S17,106 (daily ed. Oct. 26, 1990) (statement of Sen. Kennedy).
67. See Miller, supra note 53.
68. Id.
69. See infra text accompanying notes 100-06.
70. See infra Parts III & IV.
71. See Anti-Drug Abuse Act of 1988 § 4108.
72. 8 U.S.C. § 1101 (2000 & Supp. V 2005).
73. Id.
74. See 136 CONG. REC. S6586, S6603 (daily ed. May 18, 1990) (noting that as of May 18, 1990, the definition of "aggravated felony" was limited to occurrences of murder, drug trafficking, and firearms/weapons trafficking).
75. Id.
76. See 136 CONG. REC. S17106, S17109 (daily ed. Oct. 26, 1990) (discussing problems faced by the judicial system in deporting convicted aliens).
77. See Brian Haynes, Comment, Matter of A-A: The Board of Immigration Appeals' Statutory Misinterpretation Denies Discretionary Relief to Aggravated Felons, 34 SANTA CLARA L. REV. 247, 254-55 (1993) (discussing expansion of the "aggravated felony" definition to include drug offenses).
78. Immigration Act of 1990 § 501, 8 U.S.C. § 1101(a) (2000 & Supp. V 2005).
79. Id.
80. See Scott Ehlers, Drug Trafficking and Money Laundering, FOREIGN POL'Y FOCUS, June 1998, at 1-3 (detailing the connection between money laundering and the drug trade);
81. see also Peter J. Kacarab, An In Depth Analysis of the New Money Laundering Statutes, 8 AKRON TAX J. 1, 66-67 (1991) (describing money laundering as "the lifeblood of the drug trade and other criminal organizations").
82. 8 U.S.C. § 1101(a).
83. See generally UNITED STATES DEPARTMENT OF JUSTICE, PRELIMINARY SEMIANNUAL UNIFORM CRIME REPORT (2006), available at http://www.fbi.gov/ucr/prelim06/index.html (providing crime statistics by region).
84. Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, Pub. L. No. 102-232, § 306(a)(10), 105 Stat. 1733, 1751 (1991) (codified as amended at 8 U.S.C § 1182).
85. Id.
86. See infra Part IV (discussing possible solutions to aggravated felony issues).
87. See generally Marie A. Taylor, Immigration Enforcement Post-September 11: Safeguarding the Civil Rights of Middle Eastern-American and Immigrant Communities, 17 GEO. IMMIGR. L.J. 63 (2002) (describing the effect that the September 11 attacks had on American immigration policies).
88. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, § 321, 110 Stat. 3009, 3009-627 (1996) (codified as amended at 8 U.S.C. § 1101(a)(43));
89. Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, § 440(e), 110 Stat. 1214, 1277-79 (1996) (codified as amended at 8 U.S.C. § 1101(a)(43)).
90. Immigration Reform and Immigrant Responsibility Act § 321.
91. Id.
92. Illegal Immigration Reform and Immigrant Responsibility Act § 321; Antiterrorism and Effective Death Penalty Act § 440.
93. Illegal Immigration Reform and Immigrant Responsibility Act § 321; Antiterrorism and Effective Death Penalty Act § 1.
94. See Taylor, supra note 77, at 73.
95. Ralph Blumenthal, Release of Oklahoma City Bombing Figure Kindles Fears, N.Y. TIMES, Jan. 19, 2006, at A3.
96. Id.
97. 142 CONG. REC. E645 (daily ed. Apr. 25, 1996) (statement of Patsy T. Mink) ("[I]t is wrong to place upon legal immigrants a higher penalty for crimes which in themselves are not related to terroristic actions. Deportation should be reserved for only the most heinous of crimes rendering the person unfit to remain in the country.").
98. 8 U.S.C. § 1101(a)(43)(F) (2000 & Supp. V 2005).
99. See Kevin Dayton, Old Crimes Still Count for Some Non-Citizens, HONOLULU ADVERTISER, Dec. 21, 2006, at Al, available at http://the.honoluluadvertiser.com/article/2006/Dec/21/ln/ FP612210331.html (discussing how the 1996 aggravated felony definition reform affects immigrants).
100. Id.
101. See generally 8 U.S.C. § 1101(a)(43) (2000 & Supp. V 2005) (enumerating offenses that qualify as aggravated felonies).
102. See generally id.
103. See id.
104. As it stands today, the twenty categories of offenses are: (1) "murder, rape, or sexual abuse of a minor"; (2) drug trafficking offenses; (3) weapons trafficking offenses; (4) money laundering offenses; (5) firearms offenses; (6) "crime[s] of violence"; (7) theft offenses; (8) offenses involving ransom demands (9) child pornography offenses; (10) RICO and gambling offenses (11) prostitution and slavery offenses; (12) fraud offenses; (14) alien smuggling offenses; (15) offenses committed by those previously deported; (15) document fraud offenses; (16) failure to appear (17) bribery, forgery or counterfeiting; (18) obstruction of justice and perjury offenses; (19) additional failure to appear offenses; and (20) inchoate offenses related to the other enumerated offenses. Id.
105. Id.;
106. see also Matt Birkbeck, Feds Giving Boot to More Immigrants: Aggressive OneStrike-and-Out Deportation Policy Targets Criminals, MORNING CALL (Allentown), May 21, 2006, at A1 (describing proposed bills in both the Senate and the House that propose expanding the definition of aggravated felonies);
107. see also Lisa Hoppenjans, Family Searches for Answers; "Whose Mom Is It Going to Take to Make a Difference?," NEWS & OBSERVER (Raleigh), Apr. 25, 2006, at B1 (mentioning a proposal to expand aggravated felonies to include DUI offenses);
108. Face the Nation: Congressman James Sensenbrenner and Dick Durbin Discuss Controversies Over Illegal Immigration (CBS television broadcast Apr. 2, 2006) (discussing a proposed bill that would make all undocumented aliens aggravated felons and therefore expand "aggravated felony" exponentially).
109. Kathryn Harrigan Christian, National Security and the Victims of Immigration Law: Crimes of Violence After Leocal v. Ashcroft, 35 STETSON L. REV. 1001, 1004 (2006).
110. Restoration of Fairness in Immigration Act of 2003, H.R. 47, 108th Cong. § 202 (2003);
111. Gang Prevention and Effective Deterrence Act of 2004, S. 1735, 108th Cong. §§ 104(1)(B), 106-107, 208(b)(3)(A)(ii), 208(b)(3)(B), 209 (as reported by S. Comm. on the Judiciary, July 16, 2004);
112. CONG. REC. E32-33 (daily ed. Jan. 8, 2003) (statement of Rep. Conyers).
113. 8 U.S.C. § 1101(a)(43) (2000 Supp. V 2005).
114. See Comprehensive Immigration Reform Act of 2006, S. 2611, 109th Cong. § 203 (2006) (expanding the list of aggravated felonies).
115. Immigration Act of 1990 §§ 505, 514, 515, 8 U.S.C. §§ 1158 (b)(2)(B)(i), 1182(a)(9)(A)(i), 1227(a)(2)(A)(iii), 1227(b), 1228(5) (2000);
116. see also Haynes, supra note 68, at 258 (summarizing those barriers that currently exist).
117. See supra text accompanying notes 66-67.
118. See supra Part II (illustrating the various impetuses for expansion of the definition of aggravated felonies, none of which were primarily immigration related).
119. 8 U.S.C. § 1101(a)(43)(F) (2000 & Supp. V 2005).
120. Id. § 1101(a)(43)(G), (S).
121. Antiterrorism and Effective Death Penalty Act § 435, 8 U.S.C. § 1227(a)(2)(A)(i)(II) (2000) (providing that it is now irrelevant whether an offense has been served fully, but rather whether the original sentence was in excess of one year);
122. see also Atilla Bogdan, Guilty Pleas by Non-Citizens in Illinois: Immigration Consequences Reconsidered, 53 DEPAUL L. REV. 19, 31 (2003) (defining the status of those who had previously pled guilty to aggravated felonies as one in which they are in danger of being deported in the future).
123. For example, the sentence could be suspended or the defendant could be sentenced to probation or community correction.
124. See Bogdan, supra note 104.
125. Compare Lopez v. Gonzales, 127 S. Ct. 625, 627 (2006) (exempting state felonies that do not involve trafficking from the definition of "aggravated felonies"), with Gonzales v. DuenasAlvarez, 127 S. Ct. 815, 818 (2007) (holding that aiding and abetting the theft of a vehicle qualifies as a deportable offense, because theft can be punishable by a sentence of more than a year in California).
126. 127 S. Ct. at 627.
127. Duenas-Alvarez, 127 S. Ct. at 818.
128. th Circuit Court's prior ruling, which opposed the Supreme Court's holding).
129. See Duenas-Alvarez, 127 S. Ct. at 818 (2007) (holding that aiding and abetting the theft of a vehicle, since a theft crime in California with a possible punishment over one year, qualifies as a deportable offense);
130. Lopez, 127 S. Ct. at 632-33 (2006) (holding that state felonies that are not federal felonies and do not involve trafficking are not aggravated felonies).
131. 8 U.S.C. § 1101(a)(43)(F), (G), (J), (Q)-(T) (2000 & Supp. V 2005).
132. Id. § 1101(a)(43)(A)-(E), (H)-(I), (K)-(P), (U).
133. Id. § 1101(a)(43)(M).
134. See id. § 1228.
135. Bryan Lonegan, Op-Ed., Forced to Go Home Again, N.Y. TIMES, Feb. 27, 2005, at 11;
136. see Bogdan, supra note 104, at 49-50 (noting that for states that do not have such a requirement, underthe current convoluted system of aggravated felonies, an immigrant could quite possibly sign away her right to stay in this country without even realizing it).
137. Lonegan, supra note 116 (noting that there is no current proposal to remedy the situation)
138. Id.
139. See id.
140. 8 U.S.C. §§ 1229a(b)(4), (b)(5)(C), (c)(4), 1229b (2000 & Supp. V 2005).
141. These immigrants have had their day in court to contest their original felony convictions. Considering the gravity of the consequences of deportation, however, that is not the most sufficient safeguard, especially when considering the fact that they may have been unaware of the immigration consequences of a conviction or guilty plea at the time of trial. See id. § 1228 (describing the expedited removal process for aggravated felons).
142. See id.
143. Id. § 1228(a)(3)(A), (c)(3).
144. See id. § 1182(a)(2)(A) (describing classes of aliens convicted of certain crimes who are inadmissible).
145. See J. Ryan Moore, Note, Reinterpreting the Immigration and Nationality Act's Categorical Bar to Discretionary Relief for "Aggravated Felons" in Light of International Law: Extending Beharry v. Reno, 21 ARIZ J. INT'L & COMP. L. 535, 537-38 (2004) (explaining that immigrants have no recourse to judicial review of deportation orders incident to conviction for an aggravated felony).
146. See supra text accompanying notes 1-11.
147. U.S. v. Booker, 543 U.S. 259 (2005).
148. 8 U.S.C. § 1254.
149. 8 U.S.C. § 1229c.
150. See supra text accompanying note 39.
151. See supra Part II.
152. See supra notes 14-20 and accompanying text.
153. 8 U.S.C. § 1326;
154. see supra text accompanying notes 45-48.
155. See supra text accompanying notes 2-14 (discussing potential effects of a lack of safeguards in the deportation proceedings, including loss of an immigrant's adopted home, separation from loved ones and involuntary removal to a birthplace with which she may have little or no connection).
156. See supra text accompanying notes 29-48.
157. See Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, § 4108, 102 Stat. 4181, (putting into place the system of deportation of aggravated felons).
158. See supra Part II.A (discussing current obstacles, including ineligibility for asylum, fewer opportunities to appeal, and inability to leave the country voluntarily).
159. See 136 CONG. REC. S17,117-18 (1990) (statement of Sen. Graham);
160. see supra note 16.
161. See supra text accompanying notes 122-124 (discussing the desire for efficiency as one goal of eliminating procedural safeguards).
162. See supra Part III.
163. It appears that if left unchecked, this is the direction in which the law is headed. In twenty years, Congress has steadily expanded the class of offenses considered aggravated felonies without ever reducing it. See supra Part II.E. That, coupled with increasing public concerns about the dangers presented by immigrants, indicates that the current path of the law leads us towards a much stricter definition of aggravated felony.
164. See Hoppenjans, supra note 94 (discussing U.S. Representative Sue Myrick's proposal to deport any illegal immigrant convicted of driving while intoxicated).
165. See supra text accompanying note 14 (discussing the extensive collateral consequences that accompany deportation).
166. See supra Part II.
167. BLACK'S LAW DICTIONARY 71 (8th ed. 2004).
168. Granted, one could argue that the term "aggravated felony" is a mere anachronism and the true purpose of the law as it stands today is to provide for expedited removal of all immigrants convicted of any type of felony. However, such an approach turns a blind eye to the problem of the conflict between the statutory text and its application. The punishment was installed for a reason and that reason needs to be addressed, not ignored.
169. Such a list would include those offenses which normally would be considered aggravated, such as murder and rape, as well as those which fit within the Black's Law Dictionary definition of aggravated crimes.
170. BLACK'S LAW DICTIONARY 651 (8th ed. 2004).
171. 8 U.S.C. § 1228 (2000); see also id. § 1231.
172. See supra text accompanying note 20 (discussing instances in which shoplifting and other minor offenses may be classified as an aggravated felonies).
173. See 8 U.S.C. § 1227(a)(2)(A)(i)(II) ("Any alien who . . . is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable.")
174. Id.
175. See 8 U.S.C. § 1227 (the statute delineates 5 different categories of criminal behavior by aliens, each with its own subcategories).
176. U.S. SENTENCING COMM'N, 2005 FEDERAL SENTENCING GUIDELINE MANUAL §3E1.1 (Nov. 2005), available at http://www.ussc.gov/2005guid/tabcon05_1.htm.
177. Community correction is the current nomenclature for a halfway house. Considering that it is categorically different from a prison setting, sentences served in community correction should not be incorporated into the calculation of time served in prison under a sentence.
178. 6 GORDON, MAILMAN & YALE-LOEHR, supra note 16, § 72.05.
179. See supra Part II (analyzing the different laws, passed at different times for different purposes, that affect the rights of immigrants).
180. See Birkbeck, supra note 94 (describing efforts by both the U. S. Senate and the House of Representatives to prioritize deportation of criminal aliens).
181. See supra Part III.A (discussing the likelihood that the ever-expanding list of aggravated felonies will eventually eliminate the use of conventional deportation procedures).
182. See id.