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What You Need To Know About The Loopholes That Prevent The Removal Of Many Dangerous Criminal Aliens

3 minute read

WHAT: Loopholes in our immigration system created by judicial rulings have made it nearly impossible to remove many criminal aliens.

In drafting the Immigration and Nationality Act (INA), Congress included that criminal aliens convicted of any number of serious offenses referred to as aggravated felonies should be subject to immigration consequences. Federal courts, however, have created loopholes that prevent some serious criminal convictions from qualifying as aggravated felonies under the INA. As a result, the government is often unable to use the only grounds available to remove many criminal aliens.

For example, in California, a criminal alien found guilty of voluntary manslaughter, robbery, or child abuse would not necessarily be considered an aggravated felon. In Texas, a criminal alien convicted of aggravated assault, deadly conduct, or causing injury to a child, elderly individual, or disabled individual would not necessarily qualify as an aggravated felon. In Oklahoma, a criminal alien convicted of forcible sodomy or assault and battery on a police officer would not necessarily classify as an aggravated felon. As the law currently stands, no burglary crimes in California, Iowa, South Carolina, Oregon, Michigan, and Florida would qualify as an aggravated felony. Due to these judicially-created loopholes, criminal aliens convicted of these egregious crimes could potentially remain in the country.

Efforts to remove criminal aliens were further hamstrung by a recent Supreme Court decision that found unconstitutional a legal provision that was used to define which “crimes of violence” constitute aggravated felonies. In effect, the ruling invalidated a law that empowered Federal authorities to remove many violent felons from our communities.

WHY: Congress must take swift action to close loopholes in our immigration system that threaten the safety and security of American communities. 

President Trump has repeatedly called on Congress to close the judicially-created loopholes in our immigration system, including the aggravated felony loophole, in order to help keep Americans safe. In October 2017, the Administration released its immigration priorities which called on Congress to clarify the aggravated felony definition. The Administration also endorsed a bipartisan proposal this February which would have fixed the aggravated felony loophole.

Calls to fix to the aggravated felony definition have been further echoed by numerous Federal judges. For example, a judge on the Ninth Circuit described the current system as “bizarre and arbitrary” and noted it allows criminals to “escape the consequences that Congress intended.”

Congress needs to act, plain and simple. Without a legislative fix, Federal authorities will remain unable to remove violent criminal aliens, jeopardizing the safety and security of our communities.