Resolving the inconsistency between the definitions of “conviction” and “aggravated felony” under immigration and criminal law and other charges

Increasingly over the last two decades, Congress has arbitrarily expanded the categories of people subject to deportation and exclusion, sweeping up families, workers, and others with deep roots in our country, substantial contributions to our society, and long records of lawful behavior. Under immigration law, the definition of “conviction” is considerably more expansive than under comparable state criminal law. An immigrant can be found “convicted” even when a criminal court has withheld adjudication of guilt or vacated the conviction after the individual has successfully completed a rehabilitation program. Many of these laws stem from policy shifts during the 1990s. In New York State, for example, there is often a preference for participation in deferred adjudication programs. However, participation in these programs usually requires an initial plea of guilty. For purposes of immigration law, a deferred adjudication program that results in the dismissal of all charges is still considered a “conviction” if the defendant had pled guilty. These individuals would then face mandatory removal, even though under criminal law their charges have been dismissed.

An immigrant convicted of an “aggravated felony” faces mandatory detention and likely deportation. Aggravated felonies permanently bar lawful permanent residents and non-lawful permanent residents from applying for asylum, naturalization, cancellation of removal, and voluntary departure. Over the years, the definition of “aggravated felony” has been greatly expanded to include offenses that are neither felonies nor aggravated under criminal law definitions. As initially enacted in 1988, the term “aggravated felony” referred only to murder, federal drug trafficking, and illicit trafficking of certain firearms and destructive devices. Congress has since expanded the definition of “aggravated felony” on numerous occasions, but has never removed a crime from the list. Today, the definition of “aggravated felony” covers more than thirty types of offenses, including simple battery, theft, filing a false tax return, and failing to appear in court. It is imperative that the Immigration and Nationality Act reflect our common understanding of fairness under the criminal justice system and that both the criminal laws and the immigration laws be used to protect all of our rights to due process, dignity, and fair treatment.

To restore due process in the immigration system, Congress should:

• Change the definitions of “conviction” and “aggravated felony” in the immigration law to be consistent with current federal and state criminal laws.
• De-criminalize the immigration system by repealing the 1996 laws;
• End the retroactive application of the 1996 laws;
• Only allow bars to entry based on “moral character” in exceptional cases;
• All bars to entry based on prostitution should be eliminated;
• Restore discretion and due process for all individuals who come into contact with the criminal justice and immigration systems; and
• End permanent deportation.