The aggravated felony definition includes state convictions as well as federal convictions: “The term [‘aggravated felony’] applies to an offense described in this paragraph whether in violation of Federal or State law . . . .”[135]  This provision clarifies that both state and federal convictions “described in” INA § 101(a)(43) can be aggravated felonies.[136]  This does not resolve the question of which state offenses are actually “described” by a reference to a federal statute or a common-law term.[137]  The label given to the offense under state law is not determinative — the offense must be evaluated to determine whether it falls within an aggravated felony that qualifies as such under the federal definition.[138]  See § 4.39, infra.

 

            Most courts have ruled that a state conviction constitutes an aggravated felony if the conduct defined by the elements of conviction falls within the zone of a federal criminal statute listed in the aggravated felony definition, rather than limiting such listed offenses to federal convictions for violating that statute.  It is possible to argue, however, under the plain meaning doctrine, that Congress intended to include as aggravated felonies defined by a specific federal criminal statute only federal convictions for violating that statute.  See § 3.23(A), infra.

 

            Puerto Rico is considered a state for purposes of including convictions in violation of the law of Puerto Rico as aggravated felonies.  The same is true for the U.S. Virgin Islands and the District of Columbia.  See § 3.23(B), infra.

[135] 8 U.S.C. § 1101(a)(43) (first paragraph after subparagraph (U).

[136] INA § 101(a)(43), 8 U.S.C. § 1101(a)(43), as amended by Immigration Act of 1990 § 501(a).  Before passage of the Immigration Act of 1990, it was unclear whether state offenses should be held to be aggravated felonies.  The 1990 Act codified the BIA’s holding in Matter of Barrett, 20 I. & N. Dec. 171 (BIA 1990), that state offenses are aggravated felonies if they are exact analogues of federal felonies; that is, the state offense must fall within the federal felony offense. The clarification that state as well as federal convictions are aggravated felonies applies as if it was enacted as part of the Anti-Drug Abuse Act of 1988 (i.e., it applies to any conviction that would be defined as an aggravated felony).  Immigration Act of 1990, § 501(b)

[137] See ILRC § 9.5. 

[138] Sui v. INS, 250 F.3d 105 (2d Cir. 2001).

AGGRAVATED FELONY - STATE CONVICTIONS - AGGRAVATED FELONY CATEGORIES SPECIFICALLY COUCHED AS FEDERAL OFFENSES MAY NOT INCLUDE STATE CONVICTIONS
Lopez v. Gonzales, 549 U.S. ___,127 S.Ct. 638 (Dec. 5, 2006) (the language in the aggravated felony definition including certain state convictions "has two perfectly straightforward jobs to do: it provides that a generic description of "an offense . . . in this paragraph," one not specifically couched as a state offense or a federal one, covers either one, and it confirms that a state offense whose elements include the elements of a felony punishable under the CSA is an aggravated felony.").

     Footnote 6 in Lopez indicates that INA 101(a)(43)(B) -- the drug trafficking crime prong -- indicates some state convictions are included as drug trafficking crimes in 18 U.S.C. 924(c)(2) and therefore in 101(a)(43)(B), but that's a separate question from the question whether the sentence at the foot of 101(a)(43) after (U) means that all the aggravated felony categories, even those defined by reference to a specific federal statute, include state analogues. The post-U language can be explained as necessary to clarify that (B) includes some state offenses, and that the generic "murder"-type offenses include state offenses, without forcing the conclusion that the offenses defined in terms of specific federal statutes include state analogues as well. Can you really say that a state offense is "described in" a federal statute? There is a perfectly good plain meaning argument that it is not.