Aggravated Felons May Not Really Be Aggravated Felons

Author: N. Peter Antone
Published on: November 23, 2021

Congress decided in 1996 to label non-citizens who commit certain offences “aggravated felons”. The offenses they commit are called “aggravated felonies”. Such perpetrators are barred from the United States practically for life, without the possibility of any relief, at least not in practical terms. It does not matter if they already have a green card, if they are married to U.S. citizens, or if they have children who are born and raised here. The law simply devastates such families, forcing the family to be either separated or uprooted and moved elsewhere just because one of the parents is charged with an aggravated felony.

The average citizen may very well agree with Congress that those who commit heinous crimes should be uprooted from the United States. Should their families suffer, that is the responsibility of the wrongdoer, and not of Congress. This may be a feasible conclusion, until one realizes that many of those aggravated felonies are actually misdemeanors, an offense that is treated much less harshly under our legal system.

Congress has chosen to label certain offenses “aggravated felonies”, even though the offense itself under state or federal law sometimes is not even a felony, but a misdemeanor. Hence, a U.S. citizen, who commits the offenses, might not even get a day in jail, whereas the same offense committed by a non-citizen will destroy the non-citizen and his family’s lives.

The question arises as to why Congress labeled some of them “aggravated felonies.”  if they are not really felonies under state or federal law. The answer appears to me to be that Congress wanted to portray those aliens in a most negative light, but has chosen a morally suspect vehicle by which to do so. Mislabeling those wrongdoers’ deeds as “aggravated felonies” may have been intended to convince the public that those individuals are getting what they deserve, knowing that few politicians will have the courage to speak out in defense of individuals, whom our laws label as “aggravated felons”. Therefore, the labeling merely is intended to shut down the debate and discourages other lawmakers from trying to correct this inequity.

Why did Congress take this action? I do not know so I can only guess. In the last decade or so, it has been fashionable for policy makers to blame non-citizens for all of the problems of our society. These individuals are by definition a very weak group who cannot vote and cannot defend itself effectively in our legal process. Stereotyping and scapegoating are traditional tools used by unscrupulous governments to blame certain sectors of society for all of society’s problems. Apparently, the policy works. Many lawmakers are openly proud their tough policies with regards to non-citizens, even if the toughness is nothing short of unnecessary brutality.

Examples of offenses labeled as “aggravated felonies,” but might not be so under article or criminal federal law, include: sale of marijuana, even if it is viewed as a misdemeanor under state law, telephone facilitation offenses, use of a communication device to sell controlled substances, using the telephone or mail to threaten individuals, damaging property, assaults or offenses where there was an intent to harm, assaults in the second and third degree, burglary of a non-residential structure or vehicle, stalking, unauthorized trespassing, unauthorized use of vehicle, driving under the influence, attempted possession of stolen property, theft of services, possession of stolen mail, theft involving fraud, forging of certain instruments, commercial bribery, forgery, bribery of a witness, any attempt or conspiracy to commit any of the above offenses, certain firearm violations, violation of selected services laws, traveling to areas restricted because of national emergency, protective order violations, violators or domestic violence injunctions, etc.

We are not saying that people who commit the above listed offenses have done nothing wrong. On the contrary, they deserve to be punished for their crimes. They deserve to spend whatever time in jail the criminal law judge imposes on them. However, if they are to be deported for aggravated felonies, it would make sense that the law would allow the Immigration Service to grant a waiver in unusual cases, or in cases where there are family members in the U.S., a U.S. spouse, other substantive ties to the U.S., etc. Conversely, the current situation, frequently, is that a U.S. citizen convicted of those crimes hardly spends any time in jail, whereas a comparable non-citizen is banished from the U.S. without any consideration as to his length of stay in the U.S. and his ties to the U.S., and that appears to be inconsistent with civil society, at least in my view.

This is a very difficult subject. The desire of society to be safe from criminals makes this a very difficult matter to rectify. Nonetheless, those who have been labeled as “aggravated felons” are after all human beings. Whatever law we apply to them should be guided by concepts and knowledge that many U.S. citizens have paid their debt to society and become upstanding citizens with time. To banish someone from the U.S. forever for an offense that a U.S. citizen would hardly spend any time in jail for, and perhaps destroy his ties to his family appears to be a drastic overreaction by our society and legislators.