LEGISLATIVE REFORM: The AEDPA and the IIRIRA: Treating Misdemeanors as Felonies for Immigration Purposes Skip over navigation
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Copyright (c) 2001 Journal of Legislation
Journal of Legislation

LEGISLATIVE REFORM: The AEDPA and the IIRIRA: Treating Misdemeanors as Felonies for Immigration Purposes


27 J. Legis. 477


Dawn Marie Johnson *



In 1996, Congress amended the Immigration and Nationality Act of 1952 (INA) by passing the Antiterrorism and Effective Death Penalty Act (AEDPA) 1 and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). 2 The AEDPA and the IIRIRA greatly increased the list of crimes that constitute "aggravated felonies" for immigration purposes. Prior to 1996, an alien had to actually receive a sentence of five years or more in order for his or her crime to be considered an aggravated felony. 3 Now, crimes with sentences as short as one year can be considered aggravated felonies and aliens do not need to receive the full sentence to be in danger of removal. 4 As long as the crime carries a possible sentence of one-year, an alien may be designated as an aggravated felon. 5 Because many crimes carrying a possible sentence of one year are misdemeanors or non-aggravated felonies, for all practical purposes, the AEDPA and the IIRIRA force judges to recharacterize misdemeanors and non-aggravated felonies as aggravated felonies solely for immigration purposes.

Although some judges do not agree with this recharacterization of misdemeanors as felonies with short potential sentences, courts hesitantly continue to uphold the literal language of the AEDPA and the IIRIRA. For example, in U.S. v. Pacheco, 6 Circuit Judge Miner stated, "in the case before us, we deal with the question of whether Congress can make the word 'misdemeanor' mean 'felony.' As will be seen, ...
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