Victory! Attorney General Deletes Sanctuary State Tactic

July 31, 2020

Agrees with nationwide attorneys’ group

WASHINGTON—Yesterday, Attorney General William Barr, in a case he had referred from the Board of Immigration Appeals (BIA) to himself, cancelled a sanctuary-state tactic for keeping alien felons in the country. In doing so, Barr agreed with a friend-of-the-court brief that Attorneys United for a Secure America (AUSA), a nationwide network of attorneys who support strong immigration law enforcement, had filed in the case. 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.

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 his decision, the Attorney General disagreed. He pointed out that 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 gave sanctuary states a way to keep aggravated felons from being deported,” commented Dale L. Wilcox, executive director and general counsel of IRLI. “All they had 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 applaud the Attorney General for cutting off this strategy, and interpreting the INA as Congress clearly intended.”

The case is Matter of Reyes, 28 I&N Dec. 52 (Attorney General).

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