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House of Representatives Expands Aggravated Felony Definition

Cite as "AILA InfoNet Doc. No. 05051863 (posted May. 18, 2005)"

The House of Representatives passed The Gang Deterrence and Community Protection Act of 2005" (H.R. 1279) on May 11 by a vote of 279-144. Among other troubling provisions, this bill would expand the definition of the federal "crime of violence" and, by extension, the aggravated felony definition for immigration law purposes. Because Representative Sensenbrenner (R-WI) added this provision to the bill in the manager's amendment, there was no opportunity either for debate or to strike it during House floor consideration.

Current law defines a crime of violence as one that involves a substantial risk that physical force will be used against person or property. The Supreme Court recently interpreted this statute (see Leocal v. Ashcroft (11/94)) and held that driving under the influence offenses requiring a mens rea of negligence do not constitute crimes of violence and therefore do not qualify as aggravated felonies under the Immigration and Nationality Act.

Representative Sensenbrenner's provision seeks to expand the crime of violence definition to include nonviolent, negligent acts or omissions - such as driving under the influence - that place another person or property at risk of injury, even if no injury actually occurs. Expanding this definition simultaneously expands the class of crimes treated as aggravated felonies for immigration purposes. Crimes so classified carry incredibly harsh immigration-related consequences, including mandatory detention and removal - even for longtime lawful permanent residents.

The bill now moves to the Senate, where Senators Feinstein (D-CA) and Hatch (R-UT) are pushing their own version of the bill (S. 155). While the Senate version does not currently include this expanded definition, proponents of this measure may try to amend it to S. 155 when the Senate Judiciary Committee considers the bill. No timetable for Senate action on S. 155 has been set at this time.

An Action Alert with guidance on opposing this and other troubling provisions in the bill will be posted to INFONET shortly.

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