Rethinking the increased focus on penal measures in immigration law as reflected in the expansion of the "aggravated felony" concept.

• Author: Podgorny, Diana R.

1. INTRODUCTION

   Imagine the following scenario, based on an actual case. (1) Mary is a legal permanent resident who has lived in the United States since she was one year old. (2) When she was in her mid-twenties, Mary pulled a woman's hair in a quarrel over a man. (3) Upon the advice of her public defender, Mary pleaded guilty to a misdemeanor and was given a one-year sentence, suspended for a year's probation. (4) More than ten years later, Mary applied to be naturalized as a U.S. citizen, and she revealed her misdemeanor conviction in her application for naturalization. (5) Instead of being sworn in as a U.S. citizen, Mary was presented with a deportation hearing notice, based on her conviction more than ten years earlier. (6) What Mary did not know was that the Immigration Acts of 1996 (the 1996 Acts) defined her trivial misdemeanor, with its one-year suspended sentence, as an "aggravated felony" requiring deportation, and the law applied retroactively to her conviction. (7) The public defender who advised Mary to plead guilty, and the judge who gave her a one-year suspended sentence, could not have foreseen the drastic repercussions this conviction would have on Mary's life ten years later. (8) Mary's case seems like an unbelievable aberration from Congress's intent to remove criminal immigrants from the United States, but unfortunately Mary's case is a common application of the 1996 Acts and their overly expansive "aggravated felony" definition. (9)

   The 1996 Acts were Congress's response to a growing anti-immigration political movement. (10) Comprised of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) (11) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), (12) the 1996 Acts were aimed at precluding criminal immigrants from seeking legal permanent residence and U.S. citizenship. (13 The passage of these laws blurred the line between penal reform and immigration law. (14)

   The definition of aggravated felony for the purpose of removing individuals from the United States has been expanded so that now an aggravated felony need no longer be either aggravated or a felony. (15) Today, many individuals facing deportation are legal permanent residents whose deportations involve conduct that took place before the 1996 Acts, when the person did not have notice that his or her conduct would at some point in the future result in removal from his or her home, job, and family to a country to which he or she may no longer have any ties.

   This Comment explains how these developments have placed a focus on poor predictors of the character of potential U.S. citizens, and how they have resulted in inconsistency, increased litigation, and heightened incentives for illegality and dishonesty. Part II discusses the current state of the criminal provisions present in immigration law as a result of the 1996 Acts. Part III discusses the primary anti-immigration arguments that these laws were trying to address. Part IV argues that the mainstream perception that immigrants are responsible for many of the crimes committed in the United States is unsupported by statistical data, and that in fact, the inconsistent application of the 1996 Acts has resulted in the escalation of the illegality and criminality that these laws were designed to ameliorate. Part V will advocate that reestablishing a rehabilitation focus in immigration law will better address the goals of preventing illegality and criminal behavior in immigration, and that rehabilitation is a better predictor of future productive U.S. citizenship than today's focus on criminality.

2. THE CURRENT STATE OF CRIMINAL PROVISIONS IN IMMIGRATION LAW

   Immigration law has always contained some elements of penal law in its attempt to preempt criminal aliens from seeking naturalization in the United States, (16) but the lines between immigration and penal law have recently become increasingly blurred. Over the past twenty years, there has been a trend toward criminalizing immigration law, as the United States has imported criminal justice norms into a domain that is subject to civil regulation. (17) The Anti-Drug Abuse Act of 1988 (1988 Act) (18) introduced the concept of aggravated felony into immigration law, with a very narrow application consistent with its harsh penalties. (19) Since then, however, subsequent immigration acts have progressively expanded the application of aggravated felony in the immigration context and also increased the harshness of the penalties for being categorized under this expanded definition. (20) In particular, AEDPA and IIRIRA significantly altered both the Immigration and Nationality Act (INA) of 1990 (21) and the 1988 Act.

   1. THE HISTORICAL INTERSECTION OF PENAL LAW AND IMMIGRATION LAW

      Criminal law and immigration law have been intertwined to some extent for the past two decades. (22) The requirement of "good moral character" for naturalization was already in place before the 1996 Acts to screen out potentially undesirable citizens. However, this screening process has become more drastic over the past twenty years and has increasingly become a tool for discrimination.

      Section 101(f) of the INA describes the "good moral character" requirement by contrasting it to conduct that demonstrates a lack of good moral character and bars naturalization. (23) The following are barred: habitual drunkards, criminals, smugglers, aliens who were previously removed, people dependent on illegal gambling or who have a conviction of two or more gambling offenses, people who have given false testimony to obtain a benefit under the INA, people with a previous confinement for 180 days or more as a result of a conviction, and people convicted of an aggravated felony. (24)

      Other aliens who are barred from naturalization under [section] 101(f) are those who have been convicted of a crime involving "moral turpitude," or those who admit to having committed a crime involving "moral turpitude" or acts that constitute the essential elements of such a crime. (25) However, deportation can only be ordered for a single crime involving moral turpitude if it was committed within five years after entry and resulted in the imposition of a sentence of one year or more. (26) Two or more convictions of crimes involving moral turpitude subject an alien to deportation without time limit, if they did not arise out of a "single scheme of criminal misconduct." (27)

      Courts have never clearly defined the term "moral turpitude." However, the term is generally understood to connote something more than mere illegality or criminality, and consequently, it is evaluated based on moral, rather than legal, standards. (28) Courts have described moral turpitude as "an act of baseness, vileness[,] or depravity in the private and social duties which a man owes to his fellow men or to society in general, contrary to the accepted and customary rule of right and duty between man and man." (29) Specific crimes that have been held to involve moral turpitude include the following: deceptive practices designed to affect the public market price of stocks or shares at the expense of the investing public, (30) obtaining student loans by fraud or false statements, (31) tax evasion, (32) receiving stolen property, (33) conspiracy to launder the proceeds of illegal drug trafficking, (34) knowingly providing false information to a police officer to prevent apprehension or obstruct the prosecution of a person, (35) and aggravated assault against a peace officer. (36) Although morality has always been a requirement for naturalization--with morality defined to include undesirable moral traits as well as some crimes--deportation was generally reserved for repeat offenders. The 1988 Act was the first in a series of acts that expanded the nature of the offenses mandating deportation.

   2. THE 1988 ACT INTRODUCED THE NOTION OF AGGRAVATED FELONY AS A BASIS FOR REMOVAL

      The policy goal of the 1988 Act was a "drug free America." (37) The Act sought to curb drug abuse by reducing the number of drug users and decreasing the availability of illegal drugs. (38) The 1988 Act introduced the definition of aggravated felony to immigration law, to which it attached harsh penalties for immigrants. (39) The penalties for an aggravated felony conviction included detention, expedited deportation proceedings, and an expanded bar on reentry into the United States. (40) An aggravated felony conviction mandated removal if the defendant received a sentence of at least five years imprisonment. (41) Because of the severity of these penalties for immigrants, the 1988 Act advanced a very narrow definition of aggravated felony, which included only murder, weapons trafficking, and drug trafficking. (42)

   3. DISCRETIONARY RELIEF FROM DEPORTATION UNDER THE IMMIGRATION AND NATIONALITY ACT OF 1990

      Through the INA, the Attorney General gained broad discretion to deport aliens, and the deportation of certain criminal aliens became compulsory. (43) However, the Attorney General cannot deport an alien when the deportation "would threaten his life or freedom on account of race, religion, nationality, membership in a particular social group, or political opinion," except in cases where the alien was convicted of a serious crime that "constitutes a danger to the community." (44) The INA historically contained [section] 212(c), which provided that the Attorney General could exercise discretion in deciding whether to waive deportation of an alien subject to deportation or removal. (45) In order to qualify for [section] 212(c) suspension of deportation, the alien had to demonstrate that deportation would cause "extreme hardship" to the alien or his or her family, that the alien had accrued at least seven years of continuous presence in the United States, that his or her individual absences from the United States were "brief, casual, and innocent," and that he or she had good moral character. (46) These factors made...