Aggravated felony

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The term aggravated felony was created by the United States Congress as part of the Immigration and Nationality Act (INA) to define a special category of criminal offenses.[1][2] The INA says that every person "convicted of an aggravated felony shall be considered to have been convicted of a particularly serious crime."[3][4] All aliens, including all "nationals but not citizens of the United States,"[5] who have been convicted of any aggravated felony are statutorily barred from obtaining citizenship of the United States.[6][7][8][9][10][11] Other than a refugee,[12][13][14] every alien who has been convicted of any aggravated felony is statutorily barred from receiving a visa to the United States, and such alien is to be arrested and placed in removal proceedings if found within the country.[15][16]

When the aggravated felony was introduced in 1988, as a response to heightened concerns about drug abuse, it encompassed only murder and felony trafficking in drugs and/or firearms (but not long shotguns, long rifles, and/or ammunition of such legal weapons).[1][17] Every conviction covered by the aggravated felony was manifestly a crime punishable by imprisonment for a term exceeding one year.[1] The 1996 enactment of the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) tremendously expanded the aggravated felony definition by adding a great many more criminal convictions.[18] The chart below lists all the aggravated felonies.

Background and consequences of an aggravated felony conviction[edit]

A 1976 permanent resident card, issued by the former Immigration and Naturalization Service (INS), stating the following: "This is to certify that [John Lennon] has been duly registered according to the law and was admitted to the United States as an immigrant....".[19]

The INA, which was enacted by the U.S. Congress in 1952, states that "[t]he term 'alien' means any person not a citizen or national of the United States."[20] The terms "inadmissible aliens" and "deportable aliens" are synonymous in the INA.[21] Both classes are removable because they do not belong in the United States as a matter of law.[15] It is important to note that an "immigrant" can either be an "alien" or a "national of the United States," which requires a case-by-case analysis and depends mainly on the number of continuous years he or she has spent in the United States as a lawful permanent resident (LPR).[22]

U.S. Presidents and the U.S. Congress have expressly favored some "legal immigrants"[23] because they were originally "admitted" to the United States as refugees, i.e., people who experienced genocides in the past and have no permanent residency in any country other than the United States.[13][14][24] Removing such LPRs from the United States constitutes a grave international crime,[25][26][27][28] especially if they qualify as U.S. nationals or have physically and continuously resided in the United States for over 10 years without committing (in those 10 years) any offense that may trigger removability.[22][29][14][16]

In Landon v. Plasencia, 459 U.S. 21, 32 (1982), the U.S. Supreme Court reminded the U.S. Attorney General that "once an alien gains admission to our country and begins to develop the ties that go with permanent residence, his constitutional status changes accordingly." That opinion was issued after Congress and the Reagan administration brought into the United States thousands of refugee families from countries experiencing wars and genocides, such as Afghanistan, Cambodia, El Salvadore, Liberia, Palestine, Vietnam, etc.[12][30][31] As refugees and LPRs, these people lost their former nationalities and gradually became citizens and nationals of the United States (i.e., Americans). This, however, does not cover the foreign nationals who were provided the Temporary Protected Status (TPS).[32]

Expansion of the definition of "nationals but not citizens of the United States"[edit]

In 1986, less than a year before the United Nations Convention against Torture (CAT) became effective, Congress expressly and intentionally expanded the definition of "nationals but not citizens of the United States" by adding paragraph (4) to 8 U.S.C. § 1408, which reads as follows:

Unless otherwise provided in section 1401 of this title, the following shall be nationals, but not citizens, of the United States at birth: .... (4) A person born outside the United States and its outlying possessions of parents one of whom is an alien, and the other a national, but not a citizen, of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than seven years in any continuous period of ten years—(A) during which the national parent was not outside the United States or its outlying possessions for a continuous period of more than one year, and (B) at least five years of which were after attaining the age of fourteen years. (emphasis added).[5][4]

The natural reading of § 1408(4) demonstrates that it was not exclusively written for the 55,000 American Samoans but for all people who statutorily and manifestly qualify as "nationals but not citizens of the United States."[5][4] This means that any person who shows by a preponderance of the evidence that he or she meets (or at any time has met) the requirements of 8 U.S.C. §§ 1408(4), 1427, 1429, 1436, and/or 1445, is plainly and unambiguously a national but not a citizen of the United States (i.e., an American).[22][29] Such person must never be labelled or treated as an alien.[13][16] "Deprivation of [nationality]—particularly American [nationality], which is one of the most valuable rights in the world today—has grave practical consequences."[33][25][26]

Introduction of "aggravated felony"[edit]

In 1988, Congress introduced the term "aggravated felony" by defining it under 8 U.S.C. § 1101(a).[1] The definition of the term gradually expanded over the years. In February 1995, U.S. President Bill Clinton issued a directive in which he expressly stated the following:

Our efforts to combat illegal immigration must not violate the privacy and civil rights of legal immigrants and U.S. citizens. Therefore, I direct the Attorney General, the Secretary of Health and Human Services, the Chair of the Equal Employment Opportunity Commission, and other relevant Administration officials to vigorously protect our citizens and legal immigrants from immigration-related instances of discrimination and harassment. All illegal immigration enforcement measures shall be taken with due regard for the basic human rights of individuals and in accordance with our obligations under applicable international agreements. (emphasis added).[23][4]

In 1996, Congress enacted the AEDPA and IIRIRA.[18] A year later, mass arrests of aliens began across the United States.[34][35] The first people U.S. immigration officials began arresting and detaining were the long-settled legal immigrants (i.e., potential Americans).[36][14][19] Unlike illegal aliens, legal immigrants have permanent resident cards, Social Security numbers, driver's licenses, state ID cards, bank accounts, credit cards, insurances, etc., and they work legally, own homes and businesses in the United States, and some of them, especially the above refugees-turned-immigrants whose statuses had been lawfully enhanced to permanent residents, statutorily qualified as Americans after continuously residing in the country for at least 10 years without committing any offense that may trigger removability. In other words, despite being LPRs of the United States, they are still "refugees" under the INA and international law.[12][24] As such legal immigrants, they obviously do not owe allegiance to any government but the government of the United States.[19][20]

An "aggravated felony" not only affects "aliens" but also affects those who are recognized as "nationals but not citizens of the United States."[5] The INA makes clear that any such person who at any time has been convicted of any aggravated felony, whether the aggravated felony was committed inside or outside the United States, is "debarred from becoming a citizen of the United States."[6][7][8][9][10][16][11] However, unlike a non-citizen national of the United States, an alien convicted of any aggravated felony is statutorily "removable" from the United States.[15] In other words, such alien cannot:

Challenging an aggravated felony charge[edit]

An alien's "order of deportation" may be reviewed "at any time" and by any immigration judge, any BIA member, and finally by any authorized federal judge.[42] Particular cases, especially those that were adjudicated in any U.S. district court prior to the enactment of the Real ID Act of 2005, can be reopened under Rule 60 of the Federal Rules of Civil Procedure.[43] The review of the order does not require the alien or the non-citizen "U.S. national" to remain in the United States. It can be requested from anywhere in the world via mail (e.g., DHL, FedEx, UPS, Canada Post, etc.) and/or electronic court filing (ECF),[44] and the case can be filed in any court the person finds appropriate.[14] Every illegal deportation claim, U.S. nationality claim, and CAT or asylum claim is adjudicated under 8 U.S.C. §§ 1252(a)(4), 1252(b)(4), 1252(b)(5) and 1252(f)(2). When these specific provisions are invoked, all other contrary provisions of law, especially § 1252(b)(1), must be disregarded because these "claims" manifestly constitute exceptional circumstances.[43][22][29][39][40] In removal proceedings, the focus is simply on whether or not the person belongs in the United States as a matter of law. If he or she does then dismissing the case for lack of jurisdiction or delaying relief is plainly counterproductive. The Supreme Court has pointed out that "the context surrounding IIRIRA's enactment suggests that § 1252(f)(2) was an important—not a superfluous—statutory provision."[45]

According to § 1252(f)(1), "no court (other than the Supreme Court)" is authorized to determine which two or more people should be recognized as U.S. nationals (Americans).[39] The remaining courts, however, are empowered pursuant to § 1252(f)(2) to, inter alia, issue an injunction to terminate any person's removal proceedings; return a wrongfully removed person to the United States; and/or to confer U.S. nationality upon any person (but only using a case-by-case analysis).[39][40][22] In addition to that, under 8 C.F.R. 239.2, any officer mentioned in 8 C.F.R. 239.1 may sua sponte at any time terminate the case of any person who turns out to be a "national of the United States" or any person who is simply not "removable" under the INA.[15]

Legal conflict between an aggravated felony and a misdemeanor[edit]

According to the Third Circuit, New York's misdemeanor "petit larceny" qualifies as an aggravated felony under 8 U.S.C. § 1101(a)(43)(G) but only if the trial court or sentencing court orders at least one year of imprisonment. Any "street time" (i.e., period of probation, parole, or supervised release) that was ordered by the court as part of the defendant's sentence or punishment does not count as term of imprisonment.[46][47] A sentence of imprisonment with parole is called a "bifurcated sentence,"[48] and various U.S. courts of appeals have held that this is not a suspended sentence.[49][4] Regarding the legal conflict between an aggravated felony and a misdemeanor, Judge Edward Becker of the Third Circuit stated the following:

The line between felonies and misdemeanors is an ancient one. The line has not always been drawn between one year and one year and a day, since it used to be that felonies were all punishable by death.... Furthermore, under federal law, a felony is defined as a crime that has a maximum term of more than one year.... Because, as the government contends, the amended statute's definition of an aggravated theft felony refers to sentences actually imposed and not to potential sentences, it is still possible for a [defendant] to avoid being an aggravated felon if he or she receives a six-month sentence for a theft crime with a maximum possible sentence over one year....[50]

It is important to note that a court cannot defy a clearly-established law.[51] Under the INA, a crime must be punishable by imprisonment for a term "exceeding" one year in order to be considered a "crime involving moral turpitude" or an aggravated felony.[52][15][1][53] Anything to the contrary will lead to an absurd result and a blatant violation of the U.S. Constitution.[25][26][27][28] Plus, it will damage the reputation of the appellate court,[54] which suppose to play a more neutral role in removal proceedings under the INA because they are obviously not criminal proceedings.[16][42] Congress has long stated in 18 U.S.C. § 921(a)(20) that "[t]he term [aggravated felony] does not include . . . any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less." This expressed language of Congress was in effect in 1988 (when the aggravated felony was coined for the first time) and is still in effect today.[1]

Section 921(a)(20) applies to the entire Chapter 44 (§§ 921-931) of title 18. As such, § 921(a)(20) controls 8 U.S.C. § 1101(a)(43), especially subparagraphs (A), (B), (C), (D), (E), (F), and (G).[55] Under § 921(a)(20), Congress says this: "What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held." This simply means that the federal felony definition controls in all immigration-related cases.[56] More importantly, in § 927 ("Effect on State law"), Congress expressly states: "No provision of this chapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which such provision operates to the exclusion of the law of any State on the same subject matter. . . ." The phrase "[n]o provision of this chapter" statutorily covers (among many other crimes) every crime of violence and theft.[55] See also the below section: Comparison of an aggravated felony to a crime involving moral turpitude.

Precedents relating to "crime of violence" under U.S. law[edit]

In 2001, the Fifth Circuit held "that because intentional force against the person or property of another is seldom, if ever, employed to commit the offense of felony DWI, such offense is not a crime of violence within the meaning of 18 U.S.C. § 16(b)."[57] Later in the same year, the Third Circuit held that unintentional vehicular homicide is not an aggravated felony under 8 U.S.C. § 1101(a)(43)(F).[58] In Leocal v. Ashcroft, 543 U.S. 1 (2004), the U.S. Supreme Court held that driving under the influence is not an aggravated felony if the DUI statute that defines the offense does not contain a mens rea element or otherwise allows a conviction for merely negligent conduct.

In Popal v. Gonzales, 416 F.3d 249 (3d Cir. 2005), the Third Circuit held that a Pennsylvania "simple assault," which is a misdemeanor of the second degree (punishable by two years or less), does not constitute a crime of violence under § 16(a) and is therefore not an aggravate felony.[59] "And the Supreme Court recently declared, in Sessions v. Dimaya, 138 S. Ct. 1204, 1223 (2018), that § 16(b) is unconstitutionally vague and, therefore, cannot be the basis for an aggravated felony."[60]

Comparison of an aggravated felony to a crime involving moral turpitude[edit]

The term "crime involving moral turpitude" (CIMT) in the INA refers to a specific criminal conviction in which a court of law has imposed upon an alien a "term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed)."[52][15] Congress made a clear distinction between "permanent residents" and "nonpermanent residents" in this regard.[61][16] In the case of a permanent resident, the CIMT must be committed within 5 years of his or her admission into the United States.[61] However, despite the obvious differences, both classes of aliens are statutorily entitled to waiver of inadmissibility and cancellation of removal, so long as "the maximum penalty possible for the crime of which the alien[s] w[ere] convicted . . . did not exceed imprisonment for one year . . . ." (emphasis added).[52][15] Any period of incarceration or confinement that was subsequently added due to probation/parole violation plainly does not count.[46][49] If the total period served inside a penal institution (for all past convictions) was less than 180 days (6 months),[47] the permanent resident is manifestly entitled to U.S. nationality and citizenship, provided that the remaining nationality and citizenship requirements are fulfilled.[29] Such person may be naturalized in the United States or (in particular cases) at any U.S. embassy around the world.[62][22][29][39][45][14]

The consequences of making a crime an "aggravated felony" are far reaching. One major consequence is that, unlike the deportation ground for a CIMT, an aggravated felony does not necessarily have to be committed within five years from the alien's entry or admission into the United States to make him or her removable.[15] In other words, an alien who cannot demonstrate U.S. nationality is removable even if he or she has committed an aggravated felony in a foreign country before entering the United States.[63] In this regard, Congress expressly states the following:

The term [aggravated felony] applies to an offense described in [8 U.S.C. § 1101(a)(43)] whether in violation of Federal or State law and applies to such an offense in violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years. Notwithstanding any other provision of law (including any effective date), the term [aggravated felony] applies regardless of whether the conviction was entered before, on, or after September 30, 1996. (emphasis added).

"The ordinary meaning of 'notwithstanding' is 'in spite of,' or 'without prevention or obstruction from or by.'"[64] Congress is clearly and unambiguously saying that 8 U.S.C. §§ 1101(f)(8), 1227(a)(2)(A)(iii), and 1427(a) must be overridden by § 1101(a)(43) whenever it is discovered that a criminal alien or a criminal non-citizen national of the United States has committed an aggravated felony prior to his or her entry/admission into the United States. "In statutes, the [notwithstanding any other provision of law] 'shows which provision prevails in the event of a clash.'"[64] Courts have explained that "the phrase 'notwithstanding any other provision of law' expresses the legislative intent to override all contrary statutory and decisional law."[65] What this means is that holdings such as Stone v. INS, 514 U.S. 386, 405 (1995) (case obviously decided prior to IIRIRA of 1996, which materially changed the old "judicial review provisions of the INA"),[18] are statutorily not binding upon any agency or any court.[66][9][43] Congress clearly spoken about this at 8 U.S.C. § 1252(d)(2) (eff. 1996). Its intent was sufficiently shown when amending § 1252 during the enactment of the Real ID Act of 2005. There, it added "(statutory or nonstatutory)" after every relevant "notwithstanding any other provision of law" in § 1252.[67] The overall purpose of this is obviously to protect the United States[68][69][70] and the over 13 million[71] lawful permanent residents against illegal government actions.[25][26][72] In other words, the lives of these vulnerable people should not be in the hands of a few judges,[73][74] who often make serious reversible errors in immigration-related cases.[75] An unknown number of these legal immigrants statutorily qualify as U.S. nationals (Americans).[22] The job of Congress is to equally protect everyone in the United States,[76][72][77][78] not only those who merely possess a simple paper showing U.S. citizenship. In many cases, such documents are forged and/or criminally obtained.[79][80][81][11][82][83] Congress instructed the courts by using plain language in § 1252(f)(2), which is named "[p]articular cases," to apply a case-by-case analysis.[39][45]

Consequences of illegal re-entry after deportation[edit]

In general, every non-U.S. national (alien) convicted of any aggravated felony and lawfully deported "must remain outside of the United States for twenty consecutive years from the deportation date before he or she is eligible to re-enter the United States."[84] An unknown number of previously removed (deported) aliens are residing inside the United States, some of whom have been deported from the United States about a dozen of times.[85][86]

According to 8 U.S.C. § 1326, it is a federal crime for any non-criminal alien to illegally enter the United States after that alien has been denied entry, excluded, removed, deported, or if he or she has departed the United States while an order of removal was outstanding. The maximum sentence for this crime is 2 years of imprisonment. However, if he or she was a criminal alien and "whose removal was subsequent to a conviction for commission of three or more misdemeanors involving drugs, crimes against the person, or both, or a felony (other than an aggravated felony), such alien shall be fined under title 18, imprisoned not more than 10 years, or both."[87] This sentence can be increased to as high as 20 years of imprisonment in the case of an aggravated felon alien convicted for illegally reentering the United States. Such penalty, however, is extremely rare since no alien has received that many years of imprisonment. Most defendants in such cases receive around 5 years of imprisonment. In Almendarez-Torres v. United States, 523 U.S. 224 (1998), the U.S. Supreme Court held that this increased maximum sentence did not violate the Sixth Amendment to the U.S. Constitution. The only person saved from guilt and serving any imprisonment for illegal reentry after deportation is someone like the petitioner in United States v. Aguilera-Rios, 769 F.3d 626, 628-29 (9th Cir. 2014), who "was not originally removable as charged, and so could not be convicted of illegal reentry."

List of aggravated felonies[edit]

List of aggravated felonies
Letter Grade 8 U.S.C. § 1101(a)(43)
(A) murder, rape, or sexual abuse of a minor;
(B) illicit trafficking in a controlled substance (as defined in section 802 of title 21), including a drug trafficking crime (as defined in section 924(c) of title 18);
(C) illicit trafficking in firearms or destructive devices (as defined in section 921 of title 18) or in explosive materials (as defined in section 841(c) of that title);
(D) an offense described in section 1956 of title 18 (relating to laundering of monetary instruments) or section 1957 of that title (relating to engaging in monetary transactions in property derived from specific unlawful activity) if the amount of the funds exceeded $10,000;
(E) an offense described in — (i) section 842(h) or (i) of title 18, or section 844(d), (e), (f), (g), (h), or (i) of that title (relating to explosive materials offenses); (ii) section 922(g)(1), (2), (3), (4), or (5), (j), (n), (o), (p), or (r) or 924(b) or (h) of title 18 (relating to firearms offenses); or (iii) section 5861 of title 26 (relating to firearms offenses);
(F) a crime of violence (as defined in section 16 of title 18, but not including a purely political offense) for which the term of imprisonment is at least one year;
(G) a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment is at least one year;
(H) an offense described in section 875, 876, 877, or 1202 of title 18 (relating to the demand for or receipt of ransom);
(I) an offense described in section 2251, 2251A, or 2252 of title 18 (relating to child pornography);
(J) an offense described in section 1962 of title 18 (relating to racketeer influenced corrupt organizations), or an offense described in section 1084 (if it is a second or subsequent offense) or 1955 of that title (relating to gambling offenses), for which a sentence of one year imprisonment or more may be imposed;
(K) an offense that — (i) relates to the owning, controlling, managing, or supervising of a prostitution business; (ii) is described in section 2421, 2422, or 2423 of title 18 (relating to transportation for the purpose of prostitution) if committed for commercial advantage; or (iii) is described in any of sections 1581–1585 or 1588–1591 of title 18 (relating to peonage, slavery, involuntary servitude, and trafficking in persons);
(L) an offense described in — (i) section 793 (relating to gathering or transmitting national defense information), 798 (relating to disclosure of classified information), 2153 (relating to sabotage) or 2381 or 2382 (relating to treason) of title 18; (ii) section 421 of title 50 (relating to protecting the identity of undercover intelligence agents); or (iii)section 421 of title 50 (relating to protecting the identity of undercover agents);
(M) an offense that — (i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; or (ii) is described in section 7201 of title 26 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000;
(N) an offense described in paragraph (1)(A) or (2) of section 1324(a) of this title (relating to alien smuggling), except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien’s spouse, child, or parent (and no other individual) to violate a provision of this chapter;
(O) an offense described in section 1325(a) or 1326 of this title committed by an alien who was previously deported on the basis of a conviction for an offense described in another subparagraph of this paragraph;
(P) an offense (i) which either is falsely making, forging, counterfeiting, mutilating, or altering a passport or instrument in violation of section 1543 of title 18 or is described in section 1546(a) of such title (relating to document fraud) and (ii) for which the term of imprisonment is at least 12 months, except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien’s spouse, child, or parent (and no other individual) to violate a provision of this chapter;
(Q) an offense relating to a failure to appear by a defendant for service of sentence if the underlying offense is punishable by imprisonment for a term of 5 years or more;
(R) an offense relating to commercial bribery, counterfeiting, forgery, or trafficking in vehicles the identification numbers of which have been altered for which the term of imprisonment is at least one year;
(S) an offense relating to obstruction of justice, perjury or subornation of perjury, or bribery of a witness, for which the term of imprisonment is at least one year;
(T) an offense relating to a failure to appear before a court pursuant to a court order to answer to or dispose of a charge of a felony for which a sentence of 2 years’ imprisonment or more may be imposed; and
(U) an attempt or conspiracy to commit an offense described in this paragraph.

References[edit]

  1. ^ a b c d e f "Subtitle J—Provisions Relating to the Deportation of Aliens Who Commit Aggravated Felonies, Pub. L. 100-690, 102 Stat. 4469-79, § 7342". U.S. Congress. November 18, 1988. p. 289-90. Retrieved July 22, 2018. Section 101(a) (8 U.S.C. 1101(a)) is amended by adding at the end thereof the following new paragraph: '(43) The term 'aggravated felony' means murder, any drug trafficking crime as defined in section 924(c)(2) of title 18, United States Code, or any illicit trafficking in any firearms or destructive devices as defined in section 921 of such title, or any attempt or conspiracy to commit any such act, committed within the United States.'
  2. ^ 8 U.S.C. § 1101(a)(43)
  3. ^ a b c 8 U.S.C. § 1158(b)(2)(B)(i); see also Matter of G-G-S-, 26 I&N Dec. 339, 341, 347 n.6 (BIA 2014).
  4. ^ a b c d e Alabama v. Bozeman, 533 U.S. 146, 153 (2001) ("The word 'shall' is ordinarily the language of command.") (internal quotation marks omitted).
  5. ^ a b c d 8 U.S.C. § 1408 ("Nationals but not citizens of the United States at birth"); see also 8 U.S.C. § 1436.
  6. ^ a b 8 U.S.C. § 1101(a)(19)
  7. ^ a b 8 U.S.C. § 1101(f)(8) ("No person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established is, or was ... (8) one who at any time has been convicted of an aggravated felony (as defined in subsection (a)(43))....") (emphasis added).
  8. ^ a b "8 U.S.C. § 1427(d)-(e)". U.S. Congress. Cornell Law School. Retrieved 2018-07-11.
  9. ^ a b c Al-Sharif v. United States Citizenship and Immigration Services, 734 F.3d 207, 212 (3d Cir. 2013) (en banc).
  10. ^ a b Mobin v. Taylor, 598 F.Supp.2d 777 (E.D. Va. 2009) (Ellis III, District Judge).
  11. ^ a b c Adiel Kaplan, ed. (July 9, 2018). "Miami grandma targeted as U.S. takes aim at naturalized immigrants with prior offenses". Miami Herald. Retrieved July 11, 2018.
  12. ^ a b c 8 U.S.C. § 1101(a)(42) ("The term 'refugee' means ... any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable ... to return to, and is unable ... to avail himself ... of the protection of, that country because of persecution ... on account of race, religion, nationality, membership in a particular social group, or political opinion....") (emphasis added).
  13. ^ a b c d e f Ahmadi v. Ashcroft, et al., No. 03-249 (E.D. Pa. Feb. 19, 2003) ("Petitioner in this habeas corpus proceeding, entered the United States on September 30, 1982 as a refugee from his native Afghanistan. Two years later, the Immigration and Naturalization Service (the 'INS') adjusted Petitioner's status to that of a lawful permanent resident.... The INS timely appealed the Immigration Judge's decision to the Board of Immigration Appeals (the 'BIA').") (Baylson, District Judge); Ahmadi v. Att’y Gen., 659 F. App’x 72 (3d Cir. 2016) (Slip Opinion, pp.2, 4 n.1) (invoking statutorily nullified case law, the court dismissed an obvious illegal deportation case by asserting that it lacks jurisdiction to get to the merit of the claim solely due to 8 U.S.C. § 1252(b)(1)) (non-precedential); Ahmadi v. Sessions, No. 16-73974 (9th Cir. Apr. 25, 2017) (same; unpublished single-paragraph order); Ahmadi v. Sessions, No. 17-2672 (2d Cir. Feb. 22, 2018) (same; unpublished single-paragraph order); cf. United States v. Wong, 575 U.S. ___, ___, 135 S.Ct. 1625, 1632 (2015) ("In recent years, we have repeatedly held that procedural rules, including time bars, cabin a court's power only if Congress has clearly stated as much. Absent such a clear statement, ... courts should treat the restriction as nonjurisdictional.... And in applying that clear statement rule, we have made plain that most time bars are nonjurisdictional.") (citations, internal quotation marks, and brackets omitted) (emphasis added); see also Bibiano v. Lynch, 834 F.3d 966, 971 (9th Cir. 2016) ("Section 1252(b)(2) is a non-jurisdictional venue statute") (collecting cases) (emphasis added); Andreiu v. Ashcroft, 253 F.3d 477, 482 (9th Cir. 2001) (en banc) (the court clarified "that § 1252(f)(2)'s standard for granting injunctive relief in removal proceedings trumps any contrary provision elsewhere in the law.").
  14. ^ a b c d e f g h 8 U.S.C. § 1229a(e)(2) ("The term 'removable' means—(A) in the case of an alien not admitted to the United States, that the alien is inadmissible under section 1182 of this title, or (B) in the case of an alien admitted to the United States, that the alien is deportable under section 1227 of this title."); see also Tima v. Attorney General of the U.S., ___ F.3d ___, ___, No. 16-4199, p.11 (3d Cir. Sept. 6, 2018) ("Section 1227 defines '[d]eportable aliens,' a synonym for removable aliens.... So § 1227(a)(1) piggybacks on § 1182(a) by treating grounds of inadmissibility as grounds for removal as well.").
  15. ^ a b c d e f Edwards v. Sessions, No. 17-87, p.3 (2d Cir. Aug. 24, 2018) ("In removal proceedings involving an LPR, the government bears the burden of proof, which it must meet by adducing clear, unequivocal, and convincing evidence that the facts alleged as grounds for deportation are true.") (internal quotation marks omitted) (summary order); accord 8 C.F.R. 1240.46(a); 8 U.S.C. § 1229a(b)(5)(A); Matter of Pichardo, 21 I&N Dec. 330, 333 (BIA 1996) (en banc); Mondaca-Vega v. Lynch, 808 F.3d 413, 429 (9th Cir. 2015) ("The burden of proof required for clear, unequivocal, and convincing evidence is greater than the burden of proof required for clear and convincing evidence."); Ward v. Holder, 733 F.3d 601, 604–05 (6th Cir. 2013); United States v. Thompson-Riviere, 561 F.3d 345, 349 (4th Cir. 2009) ("To convict him of this offense, the government bore the burden of proving beyond a reasonable doubt that (inter alia) he is an 'alien,' which means he is 'not a citizen or national of the United States,'" (citations omitted) (emphasis added); Francis v. Gonzales, 442 F.3d 131, 138 (2d Cir. 2006); Berenyi v. Immigration Dir., 385 U.S. 630, 636-37 (1967) ("When the Government seeks to strip a person of [U.S. nationality] already acquired, or deport a resident alien and send him from our shores, it carries the heavy burden of proving its case by 'clear, unequivocal, and convincing evidence.' . . . [T]hat status, once granted, cannot lightly be taken away...." (footnotes omitted)); Woodby v. INS, 385 U.S. 276, 285 (1966); Chaunt v. United States, 364 U.S. 350, 353 (1960).
  16. ^ 18 U.S.C. § 921(a)(17); 26 U.S.C. § 5845; see also 18 Pa. Cons. Stat. § 6102; 18 U.S.C. § 927 ("Effect on State law").
  17. ^ a b c Othi v. Holder, 734 F.3d 259, 264-65 (4th Cir. 2013) ("In 1996, Congress 'made major changes to immigration law' via IIRIRA. . . . These IIRIRA changes became effective on April 1, 1997.").
  18. ^ a b c 8 U.S.C. § 1101(a)(20) ("The term 'lawfully admitted for permanent residence' means the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant ...."); see also 8 U.S.C. § 1101(a)(15) (defining the term "immigrant").
  19. ^ a b 8 U.S.C. § 1101(a)(3) (emphasis added); see also 8 U.S.C. § 1101(a)(22) ("The term 'national of the United States' means (A) a citizen of the United States, or (B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States.") (emphasis added); 8 U.S.C. § 1101(a)(31) ("The term 'permanent' means a relationship of continuing or lasting nature, as distinguished from temporary, but a relationship may be permanent even though it is one that may be dissolved eventually at the instance either of the United States or of the individual, in accordance with law."); 8 U.S.C. § 1101(a)(33) ("The term 'residence' means the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent."); Black's Law Dictionary at p.87 (9th ed., 2009) (defining the term "permanent allegiance" as "[t]he lasting allegiance owed to a state by its citizens or [permanent resident]s.") (emphasis added); Ricketts v. Attorney General of the U.S., ___ F.3d ___, ___, No. 16-3182, p.5 note 3 (3d Cir. July 30, 2018) ("Citizenship and nationality are not synonymous."); Jennings v. Rodriguez, 138 S.Ct. 830, 855-56 (2018) (Justice Thomas concurring) ("The term 'or' is almost always disjunctive, that is, the words it connects are to be given separate meanings."); Chalmers v. Shalala, 23 F.3d 752, 755 (3d Cir. 1994) (same); Mobin v. Taylor, 598 F.Supp.2d 777, 783-84 (E.D. Va. 2009) (same); Matter of Rotimi, 24 I&N Dec. 567, 569-70 n.2 (BIA 2008) (same).
  20. ^ Galindo v. Sessions, ___ F.3d ___, ___, No. 17-1253, p.4-5 (7th Cir. July 31, 2018).
  21. ^ a b c d e f g h Khalid v. Sessions, ___ F.3d ___, ___, No. 16‐3480‐ag, p.6 (2d Cir. Sept. 13, 2018) ("Khalid is a U.S. citizen and the Department of Homeland Security (DHS) must terminate removal proceedings against him.") (oral argument (audio)); Jaen v. Sessions, 899 F.3d 182 (2d Cir. 2018) (same); Anderson v. Holder, 673 F.3d 1089, 1092 (9th Cir. 2012) (same); Dent v. Sessions, ___ F.3d ___, ___, No. 17-15662, p.10-11 (9th Cir. Aug. 17, 2018) ("An individual has third-party standing when [(1)] the party asserting the right has a close relationship with the person who possesses the right [and (2)] there is a hindrance to the possessor's ability to protect his own interests.") (quoting Sessions v. Morales-Santana, 582 U.S. ___, ___, 137 S.Ct. 1678, 1689 (2017)) (internal quotation marks omitted); Gonzalez-Alarcon v. Macias, ___ F.3d ___, No. 16-2263 (10th Cir. Mar. 19, 2018); Hammond v. Sessions, No. 16-3013, p.2-3 (2d Cir. Jan. 29, 2018) ("It is undisputed that Hammond's June 2016 motion to reconsider was untimely because his removal order became final in 2003.... Here, reconsideration was available only under the BIA's sua sponte authority. 8 C.F.R. 1003.2(a). Despite this procedural posture, we retain jurisdiction to review Hammond's U.S. [nationality] claim."); accord Duarte-Ceri v. Holder, 630 F.3d 83, 87 (2d Cir. 2010) ("Duarte's legal claim encounters no jurisdictional obstacle because the Executive Branch has no authority to remove a [national of the United States]."); 8 C.F.R. 239.2; see also Yith v. Nielsen, ___ F.3d ___, ___, No. 16-15858, p.5-6 (9th Cir. Feb. 7, 2018) ("Once applicants have exhausted administrative remedies, they may appeal to a district court."); 8 U.S.C. § 1447(b) ("Request for hearing before district court").
  22. ^ a b "60 FR 7885: ANTI-DISCRIMINATION" (PDF). U.S. Government Publishing Office. February 10, 1995. p. 7888. Retrieved July 16, 2018. See also Zuniga-Perez v. Sessions, ___ F.3d ___, ___, No. 17-996, p.11 (2d Cir. July 25, 2018) ("The Constitution protects both citizens and non‐citizens.") (emphasis added).
  23. ^ a b McCormick, Andrew (August 25, 2017). "Strangers in their homeland: the Khmerican Cambodians Trump deported". South China Morning Post (SCMP). Retrieved 2018-10-01.
  24. ^ a b c d "Deprivation Of Rights Under Color Of Law". U.S. Department of Justice. August 6, 2015. Retrieved 2018-08-17. Section 242 of Title 18 makes it a crime for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States. For the purpose of Section 242, acts under 'color of law' include acts not only done by federal, state, or local officials within the their lawful authority, but also acts done beyond the bounds of that official's lawful authority, if the acts are done while the official is purporting to or pretending to act in the performance of his/her official duties. Persons acting under color of law within the meaning of this statute include police officers, prisons guards and other law enforcement officials, as well as judges, care providers in public health facilities, and others who are acting as public officials. It is not necessary that the crime be motivated by animus toward the race, color, religion, sex, handicap, familial status or national origin of the victim. The offense is punishable by a range of imprisonment up to a life term, or the death penalty, depending upon the circumstances of the crime, and the resulting injury, if any. (emphasis added).
  25. ^ a b c d 18 U.S.C. §§ 241249; United States v. Lanier, 520 U.S. 259, 264 (1997) ("Section 242 is a Reconstruction Era civil rights statute making it criminal to act (1) 'willfully' and (2) under color of law (3) to deprive a person of rights protected by the Constitution or laws of the United States."); United States v. Lanier, 123 F.3d 945 (6th Cir. 1997); Hope v. Pelzer, 536 U.S. 730, 736-37 (2002); United States v. Acosta, 470 F.3d 132, 136 (2d Cir. 2006) (holding that 18 U.S.C. §§ 241 and 242 are "crimes of violence"); see also 42 U.S.C. §§ 19811985; Ziglar v. Abbasi, 582 U.S. ___ (2017); Lyttle v. United States, 867 F.Supp.2d 1256, 1270 (M.D. Ga. 2012) (case about a U.S.-born citizen deported from the United States by the ICE "as an 'alien who is convicted of an aggravated felony.'").
  26. ^ a b "Article 16". Office of the United Nations High Commissioner for Human Rights. Retrieved July 15, 2018. [The United States] shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. (emphasis added).
  27. ^ a b "Chapter 11 - Foreign Policy: Senate OKs Ratification of Torture Treaty" (46th ed.). CQ Press. 1990. p. 806-7. Retrieved August 8, 2018. The three other reservations, also crafted with the help and approval of the Bush administration, did the following: Limited the definition of 'cruel, inhuman or degrading' treatment to cruel and unusual punishment as defined under the Fifth, Eighth and 14th Amendments to the Constitution.... (emphasis added).
  28. ^ a b c d e Ricketts v. Attorney General of the U.S., ___ F.3d ___, ___, No. 16-3182, p.2 (3d Cir. July 30, 2018) ("When an alien faces removal under the Immigration and Nationality Act, one potential defense is that the alien is not an alien at all but is actually a national of the United States."); Mohammadi v. Islamic Republic of Iran, 782 F.3d 9, 15 (D.C. Cir. 2015) ("The sole such statutory provision that presently confers United States nationality upon non-citizens is 8 U.S.C. § 1408."); Matter of Navas-Acosta, 23 I&N Dec. 586, 587 (BIA 2003) ("If Congress had intended nationality to attach at some point before the naturalization process is complete, we believe it would have said so."); 8 U.S.C. § 1436 ("A person not a citizen who owes permanent allegiance to the United States, and who is otherwise qualified, may, if he becomes a resident of any State, be naturalized upon compliance with the applicable requirements of this subchapter...."); 8 U.S.C. § 1101(a)(23) ("The term 'naturalization' means the conferring of [U.S. nationality] upon a person after birth, by any means whatsoever.") (emphasis added); TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) ("It is a cardinal principle of statutory construction that a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.") (internal quotation marks omitted); see also Saliba v. Att’y Gen., 828 F.3d 182, 189 (3d Cir. 2016) ("Significantly, an applicant for naturalization has the burden of proving 'by a preponderance of the evidence that he or she meets all of the requirements for naturalization.'"); In re Petition of Haniatakis, 376 F.2d 728 (3d Cir. 1967); In re Sotos' Petition, 221 F. Supp. 145 (W.D. Pa. 1963).
  29. ^ Federis, Marnette (March 3, 2018). "Some Vietnamese immigrants were protected from deportation, but the Trump administration may be changing that policy". Public Radio International (PRI). Retrieved September 25, 2018.
  30. ^ Levin, Sam (November 10, 2017). "Detained and divided: how the US turned on Vietnamese refugees". The Guardian. Retrieved September 25, 2018.
  31. ^ 8 U.S.C. § 1254a(f) ("Benefits and status during period of temporary protected status"); Saliba v. Att’y Gen., 828 F.3d 182 (3d Cir. 2016); see also Melissa Etehad, ed. (July 19, 2018). "The Trump administration wants more than 400,000 people to leave the U.S. Here's who they are and why". Chicago Tribune. Retrieved July 21, 2018.
  32. ^ Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160 (1963) (citation and internal quotation marks omitted); see also Arizona v. United States, 567 U.S. 387, 395 (2012) ("Perceived mistreatment of aliens in the United States may lead to harmful reciprocal treatment of American citizens abroad."); "Certificates of Non Citizen Nationality". Bureau of Consular Affairs. U.S. Department of State. Retrieved August 28, 2018.
  33. ^ Michael Shally-Jensen (December 22, 2010). Encyclopedia of Contemporary American Social Issues [4 volumes]. ABC-CLIO. p. 640. ISBN 978-0-3133-9205-4.
  34. ^ Tometi, Opal (April 29, 2016). "Black Lives Matter Co-Founder: The Immigration Challenge No One Is Talking About". Time. Retrieved August 19, 2018.
  35. ^ Evangelista v. Ashcroft, 359 F.3d 145, 148 (2d Cir. 2004).
  36. ^ 8 U.S.C. § 1227(a)(2)(A)(vi)
  37. ^ See generally 8 C.F.R. 239.2(e) ("When a notice to appear is canceled or proceedings are terminated under this section any outstanding warrant of arrest is canceled."); 8 U.S.C. § 1229b; 8 U.S.C. § 1254a(e) ("Relation of period of temporary protected status to cancellation of removal"); Nguyen v. Sessions, ___ F.3d ___, ___, No. 15-72747, p.3 (9th Cir. Aug. 23, 2018); Lopez v. Sessions, ___ F.3d ___, ___-___, No. 15-72747, pp.10-14 (9th Cir. Aug. 22, 2018) (regarding INA § 212(c) relief); "I-191, Application for Relief Under Former Section 212(c) of the Immigration and Nationality Act (INA)". USCIS. Retrieved August 24, 2018.
  38. ^ a b c d e f Jennings v. Rodriguez, 583 U.S. ___, 138 S.Ct. 830, 875 (2018) (p.42 here); Wheaton College v. Burwell, 134 S.Ct. 2806, 2810-11 (2014) ("Under our precedents, an injunction is appropriate only if (1) it is necessary or appropriate in aid of our jurisdiction, and (2) the legal rights at issue are indisputably clear.") (internal quotation marks and brackets omitted); Lux v. Rodrigues, 561 U.S. 1306, 1308 (2010); Correctional Services Corp. v. Malesko, 534 U.S. 61, 74 (2001) (stating that "injunctive relief has long been recognized as the proper means for preventing entities from acting unconstitutionally."); Alli v. Decker, 650 F.3d 1007, 1010-11 (3d Cir. 2011) (same); Andreiu v. Ashcroft, 253 F.3d 477, 482-85 (9th Cir. 2001) (en banc) (same); see also 8 U.S.C. § 1326(d) ("Limitation on collateral attack on underlying deportation order").
  39. ^ a b c Singh v. USCIS, 878 F.3d 441, 443 (2d Cir. 2017) ("The government conceded that Singh's removal was improper.... Consequently, in May 2007, Singh was temporarily paroled back into the United States by the Attorney General, who exercised his discretion to grant temporary parole to certain aliens."); Orabi v. Att’y Gen., 738 F.3d 535, 543 (3d Cir. 2014) ("The judgment of the BIA will therefore be reversed, with instructions that the Government... be directed to return Orabi to the United States in accordance with the ICE regulations cited."); Avalos-Palma v. United States, No. 13-5481 (FLW), 2014 WL 3524758, p.3 (D.N.J. July 16, 2014) ("On June 2, 2012, approximately 42 months after the improper deportation, ICE agents effectuated Avalos-Palma's return to the United States."); In re Vikramjeet Sidhu, A044 238 062, at 1-2 (BIA Nov. 30, 2011) ("As related in his brief on appeal, the respondent was physically removed from the United States in June 2004, but subsequently returned to this country under a grant of humanitarian parole (Brief at 2).... Accordingly, the proceedings will be terminated.") (three-member panel).
  40. ^ Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018); see also 8 U.S.C. § 1252(a)(4) ("Claims under the United Nations Convention").
  41. ^ a b 8 U.S.C. § 1101(a)(47); Reyes Mata v. Lynch, 576 U.S. ___, ___, 135 S.Ct. 2150, 1253 (2015); Nassiri v. Sessions, No. 16-60718 (5th Cir. Dec. 14, 2017); Alimbaev v. Att'y, 872 F.3d 188, 194 (3d Cir. 2017) (explaining that "even when presented with these discretionary decisions, we may review colorable claims or questions of law, such as whether the BIA misapplied the legal standard.... And, of course, when our jurisdiction is unclear, we have jurisdiction to determine whether we have jurisdiction.") (citations, internal quotation marks and brackets omitted); Bonilla v. Lynch, 840 F.3d 575, 581-82 (9th Cir. 2016) ("But we have not specifically addressed whether we have jurisdiction to review the Board's denial of a motion to reopen sua sponte for the limited purpose of determining whether the Board based its decision on legal or constitutional error. Several circuits have held that courts of appeal do have such limited jurisdiction ... we agree with those decisions.") (citations omitted); Matter of A-N- & R-M-N-, 22 I&N Dec. 953 (BIA 1999) (en banc) ("Aliens seeking to reopen exclusion proceedings to apply for asylum and withholding of deportation who have presented evidence establishing materially changed circumstances in their homeland or place of last habitual residence, such that they meet the general requirements for motions to reopen, need not demonstrate 'reasonable cause' for their failure to appear at the prior exclusion hearing.") (emphasis added).
  42. ^ a b c United States v. Bueno-Sierra, No. 17-12418, p.6-7 (6th Cir. Jan. 29, 2018) ("Rule 60(b)(1) through (5) permits a district court to set aside an otherwise final judgment on a number of specific grounds, such as mistake, newly discovered evidence, an opposing party’s fraud, or a void or satisfied judgment. Rule 60(b)(6), the catch-all provision, authorizes a judgment to be set aside for 'any other reason that justifies relief.' Rule 60(d)(3) provides that Rule 60 does not limit a district court’s power to 'set aside a judgment for fraud on the court.'") (citations omitted) (unpublished); Herring v. United States, 424 F.3d 384, 386-87 (3d Cir. 2005) ("In order to meet the necessarily demanding standard for proof of fraud upon the court we conclude that there must be: (1) an intentional fraud; (2) by an officer of the court; (3) which is directed at the court itself; and (4) in fact deceives the court."); 18 U.S.C. § 371; 18 U.S.C. § 1001 (court employees (including judges and clerks) have no immunity from prosecution under this section of law); Luna v. Bell, 887 F.3d 290, 294 (6th Cir. 2018) ("Under Rule 60(b)(2), a party may request relief because of 'newly discovered evidence.'"); United States v. Handy, ___ F.3d ___, ___, No. 18-3086, p.5-6 (10th Cir. July 18, 2018) ("Rule 60(b)(4) provides relief from void judgments, which are legal nullities.... [W]hen Rule 60(b)(4) is applicable, relief is not a discretionary matter; it is mandatory. And the rule is not subject to any time limitation.") (citations, brackets, and internal quotation marks omitted); Mattis v. Vaughn, No. 99-6533, p.3-4 (E.D. Pa. June 4, 2018); accord Satterfield v. Dist. Att'y of Phila., 872 F.3d 152, 164 (3d Cir. 2017) ("The fact that . . . proceeding ended a decade ago should not preclude him from obtaining relief under Rule 60(b) if the court concludes that he has raised a colorable claim that he meets this threshold actual-innocence standard ...."); see also United States v. Olano, 507 U.S. 725, 736 (1993) ("In our collateral review jurisprudence, the term 'miscarriage of justice' means that the defendant is actually innocent.... The court of appeals should no doubt correct a plain forfeited error that causes the conviction or sentencing of an actually innocent defendant....") (citations omitted); Davis v. United States, 417 U.S. 333, 346-47 (1974) (regarding "miscarriage of justice" and "exceptional circumstances"); Gonzalez-Cantu v. Sessions, 866 F.3d 302, 306 (5th Cir. 2017) (same); Pacheco-Miranda v. Sessions, No. 14-70296 (9th Cir. Aug. 11, 2017) (same); In re Wagner Aneudis Martinez, A043 447 800 (BIA Jan. 12, 2016) (same; unpublished three-member panel decision); In re Vikramjeet Sidhu, A044 238 062 (BIA Nov. 30, 2011) (same; unpublished three-member panel decision); accord Matter of G-N-C-, 22 I&N Dec. 281, 285 (BIA 1998) (en banc); Matter of JJ-, 21 I&N Dec. 976 (BIA 1997) (en banc).
  43. ^ See generally Toor v. Lynch, 789 F.3d 1055, 1064-65 (9th Cir. 2015) ("The regulatory departure bar [(8 C.F.R. 1003.2(d))] is invalid irrespective of the manner in which the movant departed the United States, as it conflicts with clear and unambiguous statutory text.") (collecting cases); see also Blandino-Medina v. Holder, 712 F.3d 1338, 1342 (9th Cir. 2013) ("An individual who has already been removed can satisfy the case-or-controversy requirement by raising a direct challenge to the removal order."); United States v. Charleswell, 456 F.3d 347, 351 (3d Cir. 2006) (same); Kamagate v. Ashcroft, 385 F.3d 144, 150 (2d Cir. 2004) (same); Zegarra-Gomez v. INS, 314 F.3d 1124, 1127 (9th Cir. 2003) (holding that because petitioner's inability to return to the United States for twenty years as a result of his removal was "a concrete disadvantage imposed as a matter of law, the fact of his deportation did not render the pending habeas petition moot").
  44. ^ a b c Nken v. Holder, 556 U.S. 418, 443 (2009) (Justice Alito dissenting with Justice Thomas).
  45. ^ a b 8 U.S.C. § 1101(a)(48)(B); In re Juan Ignacio Ruela, A077 485 879 (BIA May 5, 2014); accord Matter of Cota, 23 I&N Dec. 849, 852 (BIA 2005); United States v. Pray, 373 F.3d 358, 361 (3d Cir. 2004) ("We hold that the term 'imprisonment' ... does not include parole.... A person who is on parole, although subject to some restraints on liberty, is not 'imprisoned' in the sense in which the term is usually used. For example, if a parolee were informed at the end of a parole revocation hearing that the outcome was 'imprisonment,' the parolee would not think that this meant that he was going to be returned to parole.") (citations omitted); United States v. Benz, 282 U.S. 304, 306-07 (1931); United States v. Pettus, 303 F.3d 480 (2d Cir. 2002) (regarding "street time"); Young v. Pa. Board of Probation and Parole, No. 361 C.D. 2016 (Commonwealth Court of Pa. June 12, 2018) ("However, if the Parole Board does award credit, the parolee no longer has 'time spent at liberty on parole,' i.e., 'street time.' Id.") (emphasis added); Commonwealth v. Conahan, 589 A.2d 1107, 1110 (Pa. 1991); Young v. Pa. Board of Probation and Parole, 409 A.2d 843, 846-47 (Pa. 1979) ("To attempt to equate a parole status with that of custody is to ignore reality."); accord Morrissey v. Brewer, 408 U.S. 471, 482 (1972).
  46. ^ a b Garcia-Mendoza v. Holder, 753 F.3d 1165, 1169 (10th Cir. 2014).
  47. ^ State v. Cole, 262 Wis.2d 167, 177, 663 N.W.2d 700 (Wis. 2003).
  48. ^ a b United States v. Parsons, No. 15-2055, at p.10 (3d Cir. Nov. 10, 2016); accord United States v. Frias, 338 F.3d 206, 211 (3d Cir. 2003); United States v. Rodriguez-Bernal, 783 F.3d 1002, 1006 (5th Cir. 2015); United States v. Rodriguez-Arreola, 313 F.3d 1064, 1066 (8th Cir. 2002); see also 18 U.S.C. § 924(e)(1) ("In the case of a person who violates section 922(g) ... the court shall not suspend the sentence of, or grant a probationary sentence to, such person ....") (emphasis added); 42 Pa. Cons. Stat. § 9756(b) ("The court shall impose a minimum sentence of confinement which shall not exceed one-half of the maximum sentence imposed.") (emphasis added).
  49. ^ United States v. Graham, 169 F.3d 787, 792 (3d Cir. 1999); see also Francis v. Reno, 269 F.3d 162, 167-71 (3d Cir. 2001)
  50. ^ In re Trump Entertainment Resorts Unite Here Local 54, 810 F.3d 161, 167 (3d Cir. 2016); Lamie v. United States Trustee, 540 U.S. 526, 534 (2004) ("It is well established that 'when the statute's language is plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it according to its terms.'"); Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984); United States v. Menasche, 348 U.S. 528, 538-539 (1955) ("It is our duty to give effect, if possible, to every clause and word of a statute." (internal quotation marks omitted); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30 (1937).
  51. ^ a b c 8 U.S.C. § 1182(a)(2)(A)(ii)(II); 8 U.S.C. § 1101(f)(7); see also, generally Arias v. Lynch, 834 F.3d 823, 831 (7th Cir. 2016); Flores-Molina v. Sessions, 850 F.3d 1150, 1171-72 (10th Cir. 2017) (collecting cases); Ildefonso-Candelario v. Att’y Gen., 866 F.3d 102, 105-06 n.4 (3d Cir. 2017); Lozano-Arredondo v. Sessions, 866 F.3d 1082, 1086 (9th Cir. 2017); Romero v. Sessions, Nos. 16-73655, 17-70848 (9th Cir. June 1, 2018) (unpublished); Garcia-Martinez v. Sessions, 886 F.3d 1291, 1294 (9th Cir. 2018); Beltran-Tirado v. INS, 213 F.3d 1179, 1183 (9th Cir. 2000); Matter of Serna, 20 I&N Dec. 579, 584 (BIA 1992); Matter of Espinosa, 10 I&N Dec. 98 (BIA 1962); Matter of G-, 8 I&N Dec. 315 (BIA 1959).
  52. ^ Alabama v. Shelton, 535 U.S. 654, 670 n.10 (2002) ("In Pennsylvania, for example, ... only those charged with 'summary offenses' (violations not technically considered crimes and punishable by no more than 90 days' imprisonment, ... may receive a suspended sentence uncounseled. (Typical 'summary offenses' in Pennsylvania include the failure to return a library book within 30 days, ... and fishing on a Sunday [.])" (citations omitted).
  53. ^ United States v. Olano, 507 U.S. 725, 732 (1993).
  54. ^ a b See generally United States v. Barret, ___ F.3d ___, No. 14-2641-cr (2d Cir. Sept. 10, 2018); United States v. Pereira-Gomez, ___ F.3d ___, ___, No. 17-952-cr, p.6 note 4 (2d Cir. Sept. 7, 2018) (defining "crime of violence").
  55. ^ Lopez v. Gonzales, 549 U.S. 47 (2006) ("The question raised is whether conduct made a felony under state law but a misdemeanor under the Controlled Substances Act is a "felony punishable under the Controlled Substances Act." 18 U.S.C. § 924(c)(2). We hold it is not.").
  56. ^ United States v. Chapa-Garza, 243 F.3d 921, 928 (5th Cir. 2001).
  57. ^ Francis v. Reno, 269 F.3d 162, 171-75 (3d Cir. 2001).
  58. ^ A number of the remaining circuits have agreed and adopted this conclusion, see, e.g., Fernandez-Ruiz v. Gonzales 466 F.3d 1121, 1129 (9th Cir. 2006) (en banc).
  59. ^ Dent v. Sessions, ___ F.3d. ___, ___, No. 17-15662, p.21 (9th Cir. Aug. 17, 2018).
  60. ^ a b 8 U.S.C. § 1229b(a) (titled "Cancellation of removal for certain permanent residents"); 8 U.S.C. § 1229b(b) (titled "Cancellation of removal and adjustment of status for certain nonpermanent residents") see also 8 U.S.C. § 1227(a) ("Any alien (including an alien crewman) in and admitted to the United States shall, ... be removed if the alien is within one or more of the following classes of [remov]able aliens:.... Any alien who at the time of ... adjustment of status was within one or more of the classes of aliens inadmissible by the law existing at such time [or] who is present in the United States in violation of th[e] [INA] or any other law of the United States, ... is [remov]able."); but see Matter of Ortega-Lopez, 27 I&N Dec. 382, 391-98 (BIA 2018) (coming to a conflicting conclusion); Matter of Velasquez-Rios, 27 I&N Dec. 470 (BIA 2018) (same).
  61. ^ 8 U.S.C. § 1445(e) ("A person may file an application for naturalization other than in the office of the Attorney General, and an oath of allegiance administered other than in a public ceremony before the Attorney General or a court, if the Attorney General determines that the person has an illness or other disability which—(1) is of a permanent nature and is sufficiently serious to prevent the person’s personal appearance, or (2) is of a nature which so incapacitates the person as to prevent him from personally appearing.") (emphasis added); see also 8 U.S.C. § 1446(a) ("The Attorney General may, in his discretion, waive a personal investigation in an individual case or in such cases or classes of cases as may be designated by him.") (emphasis added).
  62. ^ Matter of Vasquez-Muniz, 23 I&N Dec. 207, 211 (BIA 2002) (en banc); see also "Suspected Islamic State member accused of killing police officer in Iraq arrested in Sacramento, where he settled as a refugee". Alene Tchekmedyian. Los Angeles Times. August 15, 2018. Retrieved August 16, 2018.
  63. ^ a b NLRB v. SW General, Inc., 580 U.S. ___, ___, 137 S.Ct. 929, 939 (2017).
  64. ^ In re JMC Telecom LLC, 416 B.R. 738, 743 (C.D. Cal. 2009) (internal quotation marks and brackets omitted) (emphasis added) (A. Howard Matz, District Judge); see also In re Partida, 862 F.3d 909, 912 (9th Cir. 2017) ("That is the function and purpose of the 'notwithstanding' clause."); Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1083 (9th Cir. 2014) ("As a general matter, 'notwithstanding' clauses nullify conflicting provisions of law."); Jones v. United States, No. 08-645C, p.4-5 (Fed. Cl. Sep. 14, 2009); Kucana v. Holder, 558 U.S. 233, 238-39 n.1 (2010); Andreiu v. Ashcroft, 253 F.3d 477, 482 (9th Cir. 2001) (en banc) (the court clarified "that § 1252(f)(2)'s standard for granting injunctive relief in removal proceedings trumps any contrary provision elsewhere in the law."); Cisneros v. Alpine Ridge Group, 508 U.S. 10, 18 (1993) (collecting cases).
  65. ^ Citizens United v. FEC, 558 U.S. 310, 362-63 (2010) ("Our precedent is to be respected unless the most convincing of reasons demonstrates that adherence to it puts us on a course that is sure error."); see also Missouri v. Jenkins, 495 U.S. 33, 45 (1990) ("We have no authority to extend the period for filing except as Congress permits."); cf. United States v. Wong, 135 S.Ct. 1625, 1632 (2015).
  66. ^ "H.R. Rep. No. 109-72: SEC. 106. JUDICIAL REVIEW OF ORDERS OF REMOVAL" (PDF). United States Congress. May 3, 2005. pp. 80–82. Retrieved 2018-07-16.
  67. ^ "ICE attorney sentenced to nearly 18 years on corruption charges stemming from multi-agency probe involving ICE OPR". U.S. Dept. of Homeland Security. March 21, 2011. Retrieved 2018-08-29.
  68. ^ "Homeland Security agents took $15M in bribes, closed their eyes". Ron Nixon, The New York Times. The Seattle Times. December 28, 2016. Retrieved 2018-08-29.
  69. ^ Saul, Josh (May 19, 2017). "Immigration Officer Bribe Arrest Adds to Homeland Security Corruption Woes". Newsweek. Retrieved 2018-08-29.
  70. ^ "Estimates of the Lawful Permanent Resident Population in the United States: January 2014" (PDF). James Lee; Bryan Baker. U.S. Department of Homeland Security. Retrieved 2018-06-29.
  71. ^ a b Amy Lieu, ed. (August 19, 2018). "Former ICE agent arrested on sexual assault, rape charges, agency says". Fox News. Retrieved 2018-08-19.
  72. ^ Brittny Mejia, ed. (June 28, 2018). "It's not just people in the U.S. illegally — ICE is nabbing lawful permanent residents too". Los Angeles Times. Retrieved 2018-06-29.
  73. ^ "In a secretive court system with a huge backlog of immigration cases, ICE and others draw little accountability". Deborah Sontag and Dale Russakoff. Philadelphia Media Network. April 17, 2018. Retrieved 2018-08-29.
  74. ^ Trump v. Hawaii, 585 U.S. ___ (2018) (Ninth Circuit reversed); Reyes Mata v. Lynch, 576 U.S. ___, ___, 135 S.Ct. 2150, 1253 (2015) (Fifth Circuit reversed); Taylor v. Barkes, 575 U.S. ___, ___, 135 S.Ct. 2042, 2045 (2015) (Third Circuit reversed); Ziglar v. Abbasi, 582 U.S. ___ (2017) (Second Circuit reversed); Pereira v. Sessions, 585 U.S. ___, 138 S. Ct. 2105 (2018) (Slip Opinion, pp.7-8) (reversing the 1st, 2nd, 4th, 6th, 7th, 9th and 11th Circuits).
  75. ^ United States v. Maravilla, 907 F.2d 216 (1st Cir. 1990) (addressing the pre-amended version of 18 U.S.C. § 242 in an immigration-related case that involved the kidnapping, robbing and cold-blooded murder of a visiting businessman by two U.S. immigration officers); 18 U.S.C. § 242 ("Notes: 1994—.... Pub. L. 103–322, § 320201(b), substituted 'any person in any State' for 'any inhabitant of any State' and 'on account of such person' for 'on account of such inhabitant'....")
  76. ^ Christine Hauser, ed. (June 28, 2018). "Former ICE Lawyer Who Stole Immigrants' Identities Gets 4 Years in Prison". The New York Times. Retrieved 2018-07-23.
  77. ^ Vince Lattanzio, ed. (March 3, 2015). "Federal Immigration Agent Stole Cash from Deportees, Nabbed in Sting: DA". WCAU. Retrieved 2018-07-23.
  78. ^ "Illegal Alien Convicted Of Passport Fraud, False Claim Of U.S. Citizenship And Aggravated Identity Theft". U.S. Dept. of Justice. August 14, 2013. Retrieved 2018-08-30.
  79. ^ Chardy, Alfonso (January 9, 2016). "Immigrant pleads guilty to using fake birth certificate to obtain a U.S. documents". Miami Herald. Retrieved 2018-08-30.
  80. ^ "Illegal immigrant from Mexico pleads guilty to using fake identity to steal $361,000 in government benefits". Fox News. March 4, 2018. Retrieved 2018-08-30.
  81. ^ Liza Hearon, ed. (August 30, 2018). "Trump Administration Denies Passports To Americans Living On Border: Report". Huffpost. Retrieved 2018-08-30.
  82. ^ Saliba v. Att’y Gen., 828 F.3d 182 (3d Cir. 2016); Nesari v. Taylor, 806 F. Supp. 2d 848 (E.D. Va. 2011)
  83. ^ 8 C.F.R. 1212.2
  84. ^ Katherine Lam, ed. (July 16, 2018). "Illegal immigrant accused of attacking wife with chainsaw was deported 11 times, officials say". Fox News. Retrieved July 16, 2018.
  85. ^ Lucia I. Suarez Sang, ed. (August 10, 2018). "Mexican citizen previously deported with long rap sheet arrested in US for 10th time". Fox News. Retrieved August 10, 2018.
  86. ^ 8 U.S.C. § 1326(b)(1)

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