IRLI, on behalf of its client the Federation for American Immigration Reform (FAIR), submitted a friend-of-the-court brief at the request of the Board of Immigration Appeals (BIA) to address whether certain California controlled substances laws qualify as aggravated felonies under the U.S. Supreme Court’s modified categorical approach to comparing state and federal criminal laws for sentence enhancement and immigration removal purposes.
The U.S. Supreme court has grappled with this highly complex question regarding aggravated felonies since 1990. The court has generally attempted to graft its criminal law analysis onto immigration cases. A “modified categorical approach” has been adopted, where only the element of the offenses are to be compared, except where states include both covered federal offenses and other crimes that are not aggravated felonies. In those cases, the immigration courts are allowed to examine certain charging and conviction documents in the record. Intense disputes over which parts of the record may be examined are the main point used by the immigration bar to attempt to exempt as many criminal aliens as possible from the aggravated felony removal process, which bars discretionary grants of relief.
IRLI brief supported the government’s assertion that J C-C should be removed from the United States for committing an aggravated felony. IRLI brief provided a statutory analysis to show that a violation of the specific California statute, which related to drugs, should be considered an aggregated felony for immigration purposes and once classified as an aggravated felon, J C-C could be removed from the United States.