On Thursday, December 10th, the Immigration Reform Law Institute (IRLI) filed a friend-of-the-court brief (attached here) with the Board of Immigration Appeals (BIA) on behalf of its client, the Federation for American Immigration Reform (FAIR), that addressed the breadth of the definition of an “aggravated felony” under the Immigration and Nationality Act (INA). Aliens who commit aggregated felonies are subject to immediate removal from the United States.
The BIA specifically requested friend-of-the-court participants address the question of whether in determining if an offense constitutes an aggravated felony under the INA, must false statements be “material” in order to find that the statute “involves deceit.” FAIR advised the BIA to not include materiality as a requirement for convictions that “involve deceit” as the plain language of the INA provision defining an “aggravated felony” includes no such requirement.
The criminal alien who is seeking to avoid deportation in this case argued that materiality is required by the Supreme Court case Kawashima v. Holder, but he incorrectly analyzed and applied the precedent. The Supreme Court has never read an implicit materiality requirement into the text of the INA’s aggravated felony provision at issue. Instead, the Supreme Court has required that the language, “involves deceit,” to be interpreted using the traditional categorical approach, which requires a court not to look at the underlying facts of the case, but only to the elements of the underlying criminal statute to determine if a conviction constitutes an aggravated felony. The federal criminal statute under which the alien was convicted did not require materiality. What is more, the Third Circuit, whose precedent binds the BIA in the instant case, has not required materiality in defining an aggravated felony.