Deportation, “Aggravated Felonies,” and Retroactivity

Claudia Prado (“Prado”) seeks review of the Board of Immigration Appeals’ conclusion that her California felony conviction for possession of marijuana was an “aggravated felony” and an offense “relating to a controlled substance” that rendered her removable. See 8 U.S.C. §§ 1227(a)(2)(A)(iii), (a)(2)(B)(i). Prado claims this conviction is no longer a predicate to removal because it was recalled and reclassified as a misdemeanor under California’s Proposition 64. Because valid state convictions retain their immigration consequences even when modified or expunged for reasons of state public policy, we deny her petition.
As I have noted several times on this blog, the principle that aliens who commit aggravated felonies should be deported is valid, but the definition of “aggravated felony” needs major work. That work can and should be part of a comprehensive immigration reform package that also includes border security, employer verification, relief for immigrants brought here illegally as children, and mandatory notification of ICE by state and local governments of the pending release of aliens with serious criminal convictions.
The absence of employer verification from Administration proposals has been curioius, but it may be changing. Ted Hesson and Anita Kumar report for Politico that it may be added to a package still being drafted.
The primary problem with getting a comprehensive package through Congress, I suspect, is not actually the disagreements on policy. A compromise could be reached if we had Reagan-O’Neal-type cooperation. The problem is that some people are more interested in having an issue to run on in the next election than they are in actually fixing problems.

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