By Attorney Farhad Sethna © 2015
Under the Immigration Act, an alien may be removed (deported) from the United States for a number of reasons, including criminal convictions. Perhaps the most heinous criminal convictions under immigration law are those considered to be “aggravated felonies” as defined under the Immigration and Nationality Act. A list of those crimes can be found at INA §101 (a)(43)(A)-(u).
There are two main prongs to whether a state or federal offense may be considered an aggravated felony for immigration purposes. These are, first, the duration of the imprisonment that may be imposed (imprisonment of one-year or more is considered to be an aggravated felony for immigration purposes); or, second, whether the amount of the loss or fraud in question exceeds $10,000.
The defendant in this particular 8th Circuit case, Jeylani Mowlana, was found to have violated the food stamp trafficking laws. The amount of the violation appears to have been well in excess of $10,000 since the Court ordered restitution (payback) of $206,000 to the United States Department of Agriculture.
The government argued that Mr. Mowlana was removable from the United States as an aggravated felon, specifically, INA §101 (a)(43)(m)(i)(1) which is an offense that “involves fraud or deceit in which the loss to the victim or victims exceeds $10,000”.
The government asserted that the loss to the victim (the U.S. government in this case) was $10,000 or more, and hence Mr. Mowlana’s crime amounted to an aggravated felony for immigration purposes.
Mowlana appealed, claiming that his food stamp violations were not aggravated felonies and therefore he should not be removed from the United States. His main argument appears to be that the conduct of unlawfully using, transferring, acquiring, and possessing food stamps did not necessarily involve fraud or deceit, which are essential elements of the aggravated felony statute.
In a lengthy discussion, the three judge panel found that Mowlana’s conduct did indeed involve fraud or deceit. The Court quoted the Supreme Court case of Liparota v U.S., 471 U.S. 419, 434 (1985), which defined the mens rea requirements under the food stamp statute.
The Court also went on to cite the Supreme Court case of Kawashima v Holder, 132 S.Ct. 1166, 1172 (2012), holding that “8 U.S.C. §1101 (a)(43)(m)(1) “is not limited to offenses that include fraud or deceit as formal elements [but also include] offenses that involve fraud or deceit- meaning offenses that necessarily entail fraudulent or deceitful conduct.””
Applying the categorical approach the 8th Circuit decided that because Mowlana’s conduct involved fraud or deceit – whether or not those were formal elements of the statute or not – Mowlana’s conduct fell into a category which involved the fraud or deceit elements contained in the Immigration and Nationality Act. (ie, 101(a)(43)(m)(i)(1). Hence, it was an aggravated felony under the INA.
The law is very severe and can be interpreted in ways that typically penalize the respondent for egregious conduct, as is the case here. Food stamp trafficking in excess of $10,000 is therefore an aggravated felony for immigration purposes and can – as in the case here – result in removal from the United States. Had the value not been over $ 10,000, however, it is still possible that Mowlana would have found himself in removal proceedings for commission of a Crime (or crimes) Involving Moral Turpitude (CIMT), which is the subject of other articles on this blog.
About the author: Attorney Farhad Sethna has practiced law for over 20 years. Since 1996, he has been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio. He is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. With offices in Cuyahoga Falls, Akron and Dover, Ohio, Attorney Sethna represents clients in all types of immigration cases. Our number is: (330)-384-8000. Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.
This is only general legal information. Please consult a qualified immigration attorney for advice on your specific case.