Judicial Amnesty on Chopping Block

July 18, 2019

IRLI urges the Attorney General to cancel judicial sentence alterations

WASHINGTON—The Immigration Reform Law Institute (IRLI) has filed a brief with the U.S. Department of Justice urging the Attorney General to overturn a Board of Immigration Appeals (BIA) ruling giving effect to state-court sentence alterations designed to keep criminal aliens in the country.

By law, an alien who has been convicted of a crime and sentenced to imprisonment for one year has committed an “aggravated felony” and is deportable. But routinely, such aliens, faced with this immigration consequence of their actions, ask the state court that convicted and sentenced them to reduce their sentence to one of less than one year’s confinement. Too often, state court judges go along, and the aliens present the “reduced” sentence to an immigration judge and argue that they have not—now— committed an aggravated felony. The BIA has ruled that immigration judges must give effect to these after-the-fact sentence reductions, and may not order aliens who have received them removed.

In its brief urging the Attorney General to overrule that BIA decision, IRLI shows how Congress drafted the Immigration and Nationality Act (INA) to preclude this form of judicial amnesty. Congress clearly provided that an alien has been convicted of an aggravated felony if he has been sentenced to confinement for one year, and listed no exceptions. And if an alien has been sentenced to a year or more of confinement, nothing a judge may do later can alter that historical fact; judges, whatever their powers, cannot change the past. IRLI also shows that giving effect to judicial alterations by state court judges usurps the federal government’s constitutional prerogative to decide which aliens may remain in the country, and gives state officials the power to undermine federal immigration law enforcement.

“Once again, proponents of amnesty and no borders ask us to ignore reality,” said Dale L. Wilcox, executive director and general counsel of IRLI. “This time, they even claim that judges in state courts can change the past from the bench. But that past—including the fact that an alien has committed a serious crime—remains the same, and that’s what matters under federal law. For the sake of public safety, we hope the Attorney General enforces the INA as written and ends this interference with Congress’s express will—which is to deport aggravated alien felons so they cannot victimize Americans again.”

The case is Matter of Thomas and Thompson, 27 I & N Dec. 556 (A.G. 2019).

For additional information, contact: Brian Lonergan • 202-232-5590 • [email protected]