Attorney General to Nix Sanctuary State Tactic?

January 21, 2020

Nationwide attorneys group urges AG to close court-crafted loophole

WASHINGTON – Last Friday, at the invitation of Attorney General Barr, Attorneys United for a Secure America (AUSA), a nationwide network of attorneys who support strong immigration law enforcement, filed a friend-of-the-court brief in a case the Attorney General had referred to himself from the Board of Immigration Appeals (BIA). AUSA is a project of the Immigration Reform Law Institute (IRLI).

The BIA had held that an alien felon who had been convicted of second degree grand larceny in New York, an offense that can be committed by either theft or fraud, that carries a jail sentence of over one year, and that involves a loss to the victim of over $10,000, had not committed an aggravated felony under the Immigration and Nationality Act (INA), and thus should not be deported. In its brief, AUSA takes issue with that ruling.

The INA provides that aliens convicted of theft – defined as taking another’s property without consent, with a sentence of over a year’s imprisonment – and also aliens convicted of fraud – defined as taking another’s property worth more than $10,000 with consent obtained by fraudulent means – are aggravated felons who should be deported. Nevertheless, the BIA reasoned that because a conviction under the New York grand larceny statute did not imply that any particular INA aggravated felony had been committed, but only implied that either aggravated felony theft or aggravated felony fraud had been committed, the New York law did not state an aggravated felony under the INA, and could not be the basis for deportation.

In its brief, AUSA shows that this reading is an unwarranted elevation of form over substance. Clearly, Congress intended that aliens convicted of an aggravated felony be deported. It is certain that an alien convicted of second degree grand larceny in New York has been convicted of an aggravated felony. What is not certain is which aggravated felony – theft or fraud – the alien committed. But the INA treats aliens who commit aggravated felony theft and aliens who commit aggravated felony fraud exactly the same: it calls for their deportation. Thus, the question of which particular aggravated felony the alien committed is unimportant for purposes of the INA.

“The BIA decision would give sanctuary states a way to keep aggravated felons from being deported,” commented Dale L. Wilcox, executive director and general counsel of IRLI. “All they have to do is merge certain offenses together in their laws so that a conviction doesn’t imply that any particular aggravated felony has been committed, even if it implies that some aggravated felony has been committed. We hope the Attorney General cuts off this strategy, and interprets the INA as Congress clearly intended.”

The case is Matter of Reyes, 27 I&N Dec. 708 (Attorney General).

For additional information, contact:

Brian Lonergan • 202-232-5590 • [email protected]