Criminal Aliens Bank on Confusion

April 19, 2021

IRLI, attorneys’ group, urge common sense in reading state statute

WASHINGTON—The Immigration Reform Law Institute (IRLI) has filed a friend-of-the-court brief before the Board of Immigration Appeals, the nation’s appellate immigration court, on an issue that will determine whether certain criminal aliens may be deported as aggravated felons.

By federal law, aliens lawfully in the country who commit an aggravated felony are to be deported. Specifically, an alien who has been convicted of violating a state law setting forth an offense Congress has defined as an aggravated felony qualifies for this adverse immigration consequence. The Supreme Court has interpreted the law as requiring courts to decide whether the state criminal statute an alien was convicted under cannot be violated except by committing an offense Congress has defined as an aggravated felony.

Congress has defined theft by taking property as an aggravated felony. In Iowa, this offense is set forth in a statute that also sets forth other theft offenses, some of which are not aggravated felonies. The issue before the Board is whether this statute is divisible into theft by taking and these other kinds of theft, making the theft by taking part, in effect, a separate statute—in which case aliens shown by court records to have violated it must be deported. IRLI, in its brief, and also Attorneys United for a Secure America (AUSA), in its own brief, use Iowa state case law to demonstrate that the statute is clearly divisible. (AUSA is a project of IRLI.)

 “The Board should resist this attempt to twist statutes away from their clear meaning—here, a meaning clear on the face of the statute and also obvious to the state courts of Iowa—to obtain favorable immigration consequences for criminal aliens,” said Dale L. Wilcox, executive director and general counsel of IRLI. “At present we face an overwhelming border crisis brought on by unlawful government policies. But for years we have faced the crisis of a systematic weakening of our immigration laws caused by lawsuit after lawsuit meant to hollow out the law gradually. We have to keep fighting on both fronts if we are to ensure that our immigration system functions as intended by Congress.”

The case is Amicus Invitation No. 21–15–03 (B.I.A.).

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