Rethinking the Increased Focus on Penal Measures in Immigration Law as Reflected in the Expansion of the "Aggravated Felony" Concept

By Podgorny, Diana R. | Journal of Criminal Law and Criminology, Winter 2009 | Go to article overview
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Rethinking the Increased Focus on Penal Measures in Immigration Law as Reflected in the Expansion of the "Aggravated Felony" Concept

Podgorny, Diana R., Journal of Criminal Law and Criminology


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.


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.

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Rethinking the Increased Focus on Penal Measures in Immigration Law as Reflected in the Expansion of the "Aggravated Felony" Concept


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