Second, everyone not included in the first group is considered an โalienโ as defined by the INA. 8 U.S.C. ยง1101(a)(3). Finally, the term โimmigrantโ is defined as any โalienโ not specified in twenty-two separate categories.
Question presented:Whether a state offense constitutes an aggravated felony under 8 U.S.C. ยง 1101(a)(43), on the ground that the state offense is โdescribed inโ a specified federal statute, where the federal statute includes an interstate commerce element that the state offense lacks.Lower court opinion: Torres v. Holder, 764 F.3d 152 (2nd Cir. 2014)DocketScotusblog pageLast week we saw the decision in Johnson v. U.S., involving the โresidual clauseโ of the Armed Career Criminal Actโs definition of a โviolent felony,โ which had defied consistent application by sentencing judges. Today the Court takes another case involving a question about the meaning of a federal statute that triggers certain consequences based on a personโs prior convictions.
The INA sets forth a multi-part definition of the term โaggravated felony,โ which applies to violations of federal and state law. 8 U.S.C. ยง 1101(a)(43).DISCUSSIONThe โaggravated felonyโ ground of deportability is found at 8 U.S.C. ยง 1227(a)(2)(A)(iii).
Amos appealed, but the BIA denied Petitionerโs motion for reconsideration. The question on appeal was whether Petitionerโs conviction, under the former Maryland statute, qualifies as the aggravated felony of โsexual abuse of a minor,โ within the meaning of 8 U.S.C ยง 1101(a)(43)(A). Petitioner contended that his Maryland conviction did not render him removable under 8 U.S.C ยง 1101(a)(43)(A), because โthe conduct proscribed by the former Maryland statute is not encompassed within the generic federal offense of โsexual abuse of a minor.โ
The U.S. Supreme Court today agreed to hear a case asking whether the IIRIRA definition of โadmission,โ INA ยง 101(a)(13)(C)(v), applies to individuals who were convicted prior to IIRIRAโs enactment then left the United States after enactment. Vartelas v. Holder, No. 10-1211 (U.S. Sept. 27, 2011).The question presented, as described in the Solicitor Generalโs Brief in Opposition, states:In 1996, Congress amended 8 U.S.C. 1101(a)(13) to specify that those aliens seeking โadmissionโ to the United States include lawful permanent resident aliens who are returning to the United States from travel abroad and who โha[ve] committed an offense identified in [8 U.S.C.] 1182(a)(2).โ 8 U.S.C. 1101(a)(13)(C)(v).
See new 8 CFR 214.2(h)(4)(ii). Per 8 U.S.C. ยง 1101(a)(15)(H)(i)(b), only โintending employer[s]โ may apply for H-1B nonimmigrant visas. For comparison, the U.S. Department of Laborโs elemental rule, long followed by the United States Citizenship and Immigration Services (USCIS) (since 1991) and adopted into the H-1B regulations, defines an employer as (1) a โperson, firm, corporation, contractor, or other association or organization in the United States which suffers or permits a person to work in the United Statesโ that (2) โmay hire pay, fire, supervise or otherwise control the work of any such employeeโ and (3) which โhas an IRS tax identification number.โ
The proclamation adds that โthe Secretary of Labor shall also undertake, as appropriate, investigations pursuant to section 212(n)(2)(G)(i) of the INA (8 U.S.C. ยง 1182(n)(2)(G)(i)).โ For background, this section provides the Secretary of Labor with the authority to investigate employersโ compliance with obligations regarding wages paid and working conditions associated with employees who hold H-1B visas (8 U.S.C. ยง 1101(a)(15)(H)(i)(b) (defining specialty occupation workers)), with attention to โan employerโs practices or employment conditions, or an employerโs compliance with the employerโs labor condition application.โ The labor condition application is a precursor filing by the H-1B visa employer with the DOL that certifies working conditions and a minimum prevailing wage.There is authority for this review.
On January 24, 2001, after Ojo had turned seventeen, the Circuit Court for Montgomery County, Maryland (the โMaryland state courtโ), entered a judgement for adoption. During Ojoโs twenties he was convicted of two drug-related offensesโeither of which qualified as an โaggravated felonyโ under 8 U.S.C. ยง 1101(a)(43)(B). On May 6, 2013, in light of Ojoโs convictions, and alleging that Ojo had not derived citizenship as an adopted child under 8 U.S.C. ยง 1101(b)(1)(E), the Department of Homeland Security (โDHSโ) charged Ojo with removability form the Unites States under 8 U.S.C. ยง 1227(a)(2)(A)(iii).
One of the crimes listed as an aggravated felony is โsexual abuse of a minor.โ 8 U.S.C. ยง 1101(a)(43)(A). In this case the Supreme Court holds that โin the context of statutory rape offenses that criminalize sexual intercourse based solely on the age of the participants, the generic federal definition of sexual abuse of a minor requires that the victim be younger than 16.โ
Under U.S. law, the term โimmigrantโ means โevery alien except an alien who is within one of the [enumerated] classes of nonimmigrant aliens.โ INA 101(a)(15), 8 U.S.C. 1101(a)(15). This encompasses non-citizens who intend to reside in the United States permanently, including lawful permanent residents (known as โgreen card holdersโ or LPRs).