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When Is a Crime an 'Aggravated Felony' for Removal?

By Peter Clarke, JD on June 12, 2015 3:56 PM

Richard Jesus Amos, an immigrant from the Philippines, committed a sexual crime against a minor. After he served his punishment for the crime, the Department of Homeland Security came knocking.

Since the Attorney General has the power to remove any alien "who is convicted of an aggravated felony," the immigration judge heard a strong case against Amos. As might be expected, the judge ordered Amos to be removed and denied motions for reconsideration. When the Board of Immigration Appeals (BIA) dismissed Amos' appeal, he brought the case to the Fourth Circuit.

Removal for an Aggravated Felony

The circuit court considered whether Amos' conviction under state law could be considered an "aggravated felony" within the meaning of the federal definition (necessary to proceed with the removal of an alien).

Under Degren v. State, the "least culpable conduct qualifying as 'causing sexual abuse of a child' satisfied the generic federal offense of 'sexual abuse of a minor.'" The BIA relied on this to find that Amos' actions fell within the meaning of the federal offense.

The BIA's Argument Failed

In reviewing the BIA's argument, the circuit court wasn't convinced. The court relied on this rule of law from Castillo v. Holder: "a state offense is a categorical match with a federal offense only if a conviction of the state offense necessarily involved facts equating to the generic federal offense."

The BIA's analysis failed to define the elements of a generic federal offense, so the court couldn't find that the underlying sate conviction fell within the meaning of the generic federal offense. Applied to Amos' case, the circuit court determined that the federal term "sexual abuse of a minor" didn't necessarily encompass the least culpable conduct under the state statute found Amos guilty of his sexual abuse crime.

As a result, the thrust of the BIA's argument failed. The circuit court vacated the order for Amos' removal.

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