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Controversial "aggravated felonies" being reconsidered

A decision by the U.S. Supreme Court surprised many observers last year. It came from an unusual team of justices, made up of a one generally seen as conservative along with four generally seen as liberal.

It was also noticed by many immigrants to the United States and their attorneys. Thanks to the decision, it could now be harder to deporting immigrants for certain offenses that are often minor. To continue such deportations, the idea of “aggravated felony” may now finally have to be clarified.

“Aggravation” is usually an old, uncontroversial idea

When a crime is charged as “aggravated,” the possible punishments increase dramatically. The criminal is seen as outrageously guilty, and their crime is intensely harmful. Typically, crimes considered aggravated are committed in ways, and for reasons, that are so extreme that the usual punishments aren’t enough.

In New Jersey, for example, an assault is when someone injures someone else without a good reason (such as self-defense). A New Jersey aggravated assault, however, suggests the accused didn’t value the victim’s life. They intended to recklessly cause the victim severe injury or death, and in many cases used a deadly weapon like a baseball bat, a gun or an automobile.

The shifting concept of “aggravated felony”

In 1988, the federal government expanded the list of punishments that could be used against people convicted of serious crimes like murder, rape, or smuggling drugs or firearms or explosives. It now included deportation of non-citizen immigrants. This moment in history linked, essentially for the first time, criminal charges to immigration status and introduced the idea of the “aggravated felony.”

Over time, the list of crimes that could be grounds for aggravated felony status grew, and a variety of settled law appeared to shift. For example, an immigrant convicted of an aggravated felony had to be deported and couldn’t appeal the decision in most cases.

Supreme Court finds “aggravated felonies” aggravating

Last year’s case involved a man who lawfully immigrated from the Philippines in 1992. Based on two non-violent burglary convictions, an immigration court ordered him deported for aggravated felonies.

The definition of “aggravated felony” involves a “crime of violence … that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

Deportations for aggravated felonies are often decided not by looking at the specifics of the individual behavior to see if it posed the “substantial risk” mentioned in the law, but by asking whether an “ordinary case” of such crimes poses such risks.

The Supreme Court ruled that this is unconstitutionally vague and can violate due process and be unpredictable and arbitrary. The conservative justice warned that “vague laws invite arbitrary power.”

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