A conviction must fall within a particular aggravated felony category to trigger deportation.  While the statute expressly provides that the definition applies to convictions rendered before or after the 1996 amendments to the statute, there is a question whether due process forbids retroactive application of an expanded aggravated felony definition to a conviction entered in reliance on the fact that the conviction did not trigger deportation as an aggravated felony at the time of the plea.[1]

            The most comprehensive discussion of the elements of each aggravated felony conviction is contained in N. Tooby, Aggravated Felonies (2003), which is too extensive to reproduce here.  The basic elements of the aggravated felony grounds for removal are: (1) alienage; (2) conviction; (3) after the effective date; (4) after admission; and (5) of an offense qualifying as an aggravated felony.  Unless each of these elements exists, the noncitizen is not deportable on account of this ground of deportation.  Whether a particular offense meets the federal “aggravated felony” definition is discussed in more detail in Aggravated Felonies, Chapter 5 (aggravated felony categories) and Aggravated Felonies, Appendix A (complete index of cases concerning whether a particular conviction falls within a particular Aggravated Felony category).[2]  All cases holding that a given conviction is not an aggravated felony are included in Chapter 8, infra, organized by type of crime.

 

[1] United States v. Ubaldo-Figueroa, 364 F.3d 1042 (9th Cir. April 7, 2004) (illegal re-entry conviction reversed on grounds deportation order was invalid due to IJ failure to properly advise of relief or right to appeal; concurring opinion stated respondent was prejudiced since he had plausible arguments that he was eligible for former § 212(c) relief, and that retroactive application of the expanded aggravated felony definition violated due process); Gonzalez-Gonzalez v. Weber, Case No. 03-RB-0678 (MJW) (D. Colo. May 22, 2003) (unpublished) (petition for writ of habeas corpus granted holding that a possession conviction could not be considered an aggravated felony, under Yanez, where the defendant relied upon existing law that it was not an aggravated felony at the time of the plea).  Petitioner was represented by Jim Salvator of Lafayette, Colorado.

[2] See N. Tooby, Aggravated Felonies § 3.2 (2003).

AGGRAVATED FELONY"STATUTORY INTERPRETATION"INVOLVING MEANS NECESSARILY ENTAILS
Kawashima v. Holder, 132 S.Ct. 1166 (Feb. 21, 2012) (statutory definition of fraud aggravated felony, under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), courts general test for whether the conviction was for an offense involving fraud or deceit was whether it was an offense with elements that necessarily entail fraudulent or deceitful conduct.).

BIA

STATUTORY INTERPRETATION - IIRAIRA CRIMINAL DEPORTATION GROUNDS - CONGRESSIONAL INTENT - BROAD INTERPRETATION
Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, ___ (BIA May 20, 2008) ("In seeking to identify the "federal policies" underlying section 237(a)(2)(E)(i), we find it significant that the provision was enacted pursuant to the IIRIRA as part of an aggressive legislative movement to expand the criminal grounds of deportability in general and to create a "comprehensive statutory scheme to cover crimes against children" in particular. Matter of Rodriguez-Rodriguez, supra, at 994. In addition to the changes brought about through the enactment of section 237(a)(2)(E)(i), for example, Congress also expanded the aggravated felony definition to encompass offenses involving the "sexual abuse of a minor." See IIRIRA 321(a)(1), 110 Stat. at 3009-627 (amending section 101(a)(43)(A) of the Act); see also United States v. Corona-Sanchez, 234 F.3d 449, 454 (9th Cir. 2000) (referring to the IIRIRA as "expansive legislation" and recognizing, in the aggravated felony context, that the statute was "intended to sweep a broad range of offenses" into the grounds of deportability); H.R. Rep. No. 104-828, at 505-06 (1996) (Conf. Rep.) (Joint Explanatory Statement of the Committee of Conference). Prior to the enactment of the IIRIRA, the immigration laws did not subject aliens convicted of crimes against children to any particular disadvantage vis-a-vis other criminal aliens. By enacting section 237(a)(2)(E)(i) of the Act and other provisions augmenting the aggravated felony definition, however, Congress clearly intended to single out those who have been convicted of maltreating or preying upon children. In view of the fact that section 237(a)(2)(E)(i) of the Act is the product of a significant expansion of the grounds of deportability and was aimed at facilitating the removal of child abusers in particular, it is our view that the term "crime of child abuse" should be interpreted broadly in this context.").

STATUTORY INTERPRETATION - IIRAIRA CRIMINAL DEPORTATION GROUNDS - CONGRESSIONAL INTENT - BROAD INTERPRETATION
Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, ___ (BIA May 20, 2008) (broad statutory purposes cannot carry interpretation past the language of the statute: "Thus, while we agree with the DHS that Congress intended section 237(a)(2)(E)(i) to be construed broadly, the statute's general purpose cannot supersede its language, which plainly focuses on those crimes of which an alien has been "convicted." We note in this regard that Congress's broad, enforcement-oriented purposes have not prevented courts from determining that other criminal grounds of deportability are subject to the categorical approach. See, e.g., Gonzales v. Duenas-Alvarez, 127 S. Ct. at 818 (discussing the applicability of the categorical approach in the context of a "theft offense" aggravated felony); Medina v. Ashcroft, 393 F.3d 1063, 1065-66 (9th Cir. 2005) (applying the categorical approach in the context of a "controlled substance violation" under section 237(a)(2)(B)(i) of the Act); United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir. 1999) (applying the categorical approach in the context of a "sexual abuse of a minor" aggravated felony).").

Second Circuit

SENTENCE - DATE OF CONVICTION - SENTENCE REQUIRED TO CONSTITUTE CONVICTION
Puello v. BCIS, 511 F.3d 324 (2d Cir. Dec. 20, 2007) (under INA 101(f)(8), 8 U.S.C. 1101(f)(8), the date of conviction is the date of sentence: "In sum, we hold that, under the plain meaning of the definition of "conviction" in 8 U.S.C. 1101(a)(48)(A), the entry of a "formal judgment of guilt . . . by a court" occurs when judgment is entered on the docket, not when a defendant pleads guilty."); see Perez v. Elwood, 294 F.3d 552, 562 (3d Cir. 2002) (the date of conviction under the INA is the date of either sentencing or entry of judgment on the docket); Abimbola v. Ashcroft, 378 F.3d 173, 181 (2d Cir. 2004) (an Alford plea coupled with a sentence constitutes a conviction under the INA, and noting that "Congress focused the sanction of removal on a criminal conviction as opposed to an admission of guilt"); Mugalli v. Ashcroft, 258 F.3d 52, 62 (2d Cir. 2001) (in the deportation context, a New York state conviction mitigated by a Certificate of Relief is still a conviction under the INA because the defendant "entered a plea of guilty, and the court entered a formal judgment of guilt").