The Eighth Circuit Court of Appeals in St. Louis, Missouri recently handed down a decision interpreting the "aggravated felony" definition for immigration law. Petr Spacek, a native and citizen of Czechoslovakia, entered the U.S. as a refugee on July 18, 1984 and adjusted status to an LPR on October 18, 1985. Spacek was convicted of felony theft in Minnesota in 1987, simple assault in North Dakota in 1995, and racketeering in North Dakota in 2010.
After his 2010 conviction, Spacek was placed in removal proceedings. Spacek conceded removability, sought a waiver for his crimes under INA § 212(h), and applied for non-LPR cancellation of removal pursuant to INA § 240A(b). The immigration judge (IJ) found that Spacek was eligible for both forms of relief. He denied the 212(h) waiver of inadmissibility in the exercise of his discretion but granted Spacek’s application for cancellation of removal. DHS appealed the judge’s grant of cancellation of removal, and Spacek appealed the judge’s denial of his 212(h) waiver.
The Board of Immigration Appeals held that Spacek was not eligible for non-LPR cancellation of removal because he had been convicted of an aggravated felony. The BIA also held that Spacek was not eligible for a 212(h) waiver because he had been convicted of an aggravated felony after being “admitted” to the U.S. as an LPR.
The 8th Circuit upheld that BIA’s decision that Spacek was convicted of an aggravated felony. INA §101(a)(43)(J) states that an offense described in 18 U.S.C. § 1962, related to racketeering, is an aggravated felony. Spacek’s state racketeering conviction is an aggravated felony even though the state statute did not include an element that the crime involve interstate or foreign commerce as required in the federal racketeering statute. The Court explained that the jurisdictional element in the federal racketeering statute is included due to constitutional limitations under the Commerce Clause, and this element does not exclude a conviction under state law with the same substantive elements from being an aggravated felony. Furthermore, the Court noted that INA § 101(a)(43) states that an aggravated felony includes any offense described therein “whether in violation of Federal or State law,” making clear Congress’ intent to include state convictions with similar substantive elements to convictions under federal law. The 8th Circuit affirmed the BIA’s decision that Spacek was not eligible for non-LPR cancellation of removal due to his aggravated felony conviction.
The 8th Circuit upheld the BIA’s decision that Spacek was not eligible for a 212(h) waiver because he had been convicted of an aggravated felony after being “admitted” to the U.S. as an LPR. The Court found that Spacek was admitted to the U.S. as an LPR when he adjusted status under INA § 209(a)(1), which requires that a refugee “return or be returned to the custody of the Department of Homeland Security for inspection and examination for admission to the United States as an immigrant.”