(A)  General Rule.  It has become well established that, in general, a conviction need not be a felony conviction to fall within the aggravated felony definitions.[481]  All circuits to consider this issue agree.[482]  The two exceptions are the portion of the crime of violence definition contained in 18 U.S.C. § 16(b), see § 3.59, infra, and the drug trafficking aggravated felony definition.  See § 3.60, infra.

 

If the conviction is not a felony, arguably the offense should not be held an aggravated felony.  However, beginning with United States v. Graham,[483] many courts have held or suggested, sometimes reluctantly, that the classification of an offense as a misdemeanor under state law does not automatically exclude it from the category of “aggravated felony” where it otherwise meets the statutory definition.  The courts felt bound by the statutory provisions defining as aggravated felonies certain offenses where a one-year sentence is imposed, e.g., theft with a term of imprisonment of one year. 

 

            In Matter of Crammond,[484] the BIA had originally held that a conviction for “sexual abuse of a minor” must be defined as a felony offense in the jurisdiction of conviction in order for the crime to be considered an aggravated felony.[485]  However, once it learned that the petitioner had departed the country during the pendency of the appeal, the Board reconsidered and vacated its ruling for lack of jurisdiction.[486]

 

The BIA then reversed itself, holding that a misdemeanor conviction could constitute an aggravated felony as a sexual abuse of a minor offense.[487] The majority of the circuits agrees that a state misdemeanor conviction of sexual abuse of a minor constitutes an aggravated felony.[488]

 

A misdemeanor conviction, therefore, is not a safe plea by which to avoid the sexual abuse of a minor aggravated felony ground and should not be relied upon, even in circuits that have not yet addressed the question.

[481] Matter of Martin, 23 I. & N. Dec. 491 (BIA 2002); Matter of Small, 23 I. & N. Dec. 448 (BIA 2002).

[482] United States v. Pacheco, 225 F.3d 148 (2d Cir. 2000) (RI conviction of misdemeanor theft of a small video game valued at approximately $10, for which the individual received a one year suspended sentence); United States v. Graham, 169 F.3d 787 (3d Cir. 1999) (misdemeanor NY petty larceny); Wireko v. Reno, 211 F.3d 833 (4th Cir. 2000)(misdemeanor sexual battery, with 12-month suspended sentence, held crime of violence and therefore aggravated felony); United States v. Urias-Escobar, 281 F.3d 165, 167-168 (5th Cir. 2002), cert. denied, 122 S.Ct. 2377 (2002); United States v. Gonzales-Vela, 276 F.3d 763, 766-68 (6th Cir. 2001); Guerrero-Perez v. INS, 242 F.3d 727, 730-37 (7th Cir.), reh’g denied, 256 F.3d 546 (7th Cir. 2001); United States v. Alvarez-Gutierrez, 394 F.3d 1241 (9th Cir. Jan. 14, 2005) (Nevada conviction for statutory sexual seduction, for having had sexual intercourse with a 14-year-old girl, in violation of Nev.Rev.Stat. § § 200.364, 368 (2002), constituted a sexual abuse of a minor aggravated felony under INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A) (2003), for purposes of imposing an eight-level illegal re-entry sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(C) (2003), even though it was a gross misdemeanor punishable by a sentence of up to one year, Nev.Rev.Stat. § 193.140 (2002)) (see lengthy and well-reasoned dissent by Judge Berzon); United States v. Saenz-Mendoza, 287 F.3d 1011, 1014 (10th Cir. 2002), cert. denied, 123 S.Ct. 315 (2002) (Utah conviction of child abuse, cruelty toward child, qualified as an crime of violence “aggravated felony” as defined by 8 U.S.C. 1101(a)(43)(F), for purpose of enhancement under U.S.S.G. § 2L1.2, of illegal re-entry sentence, even though Utah classified it as a misdemeanor); United States v. Marin-Navarette, 244 F.3d 1284, 128687 (11th Cir. 2001); United States v. Christopher, 239 F.3d 1191 (11th Cir. 2001) (misdemeanor Georgia theft by shoplifting, with 12 months suspended sentence).

[483] United States v. Pacheco, 225 F.3d 148 (2d Cir. 2000) (RI conviction of misdemeanor theft of a small video game valued at approximately $10, for which the individual received a one year suspended sentence); United States v. Graham, 169 F.3d 787 (3d Cir. 1999) (misdemeanor NY petty larceny); Wireko v. Reno, 211 F.3d 833 (4th Cir. 2000)(misdemeanor sexual battery, with 12-month suspended sentence, held crime of violence and therefore aggravated felony); United States v. Urias-Escobar, 281 F.3d 165, 167-168 (5th Cir. 2002), cert. denied, 122 S.Ct. 2377 (2002); United States v. Gonzales-Vela, 276 F.3d 763, 766-68 (6th Cir. 2001); Guerrero-Perez v. INS, 242 F.3d 727, 730-37 (7th Cir.), reh’g denied, 256 F.3d 546 (7th Cir. 2001); United States v. Alvarez-Gutierrez, 394 F.3d 1241 (9th Cir. Jan. 14, 2005) (Nevada conviction for statutory sexual seduction, for having had sexual intercourse with a 14-year-old girl, in violation of Nev.Rev.Stat. § § 200.364, 368 (2002), constituted a sexual abuse of a minor aggravated felony under INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A) (2003), for purposes of imposing an eight-level illegal re-entry sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(C) (2003), even though it was a gross misdemeanor punishable by a sentence of up to one year, Nev.Rev.Stat. § 193.140 (2002)) (see lengthy and well-reasoned dissent by Judge Berzon); United States v. Saenz-Mendoza, 287 F.3d 1011, 1014 (10th Cir. 2002), cert. denied, 123 S.Ct. 315 (2002) (Utah conviction of child abuse, cruelty toward child, qualified as an crime of violence “aggravated felony” as defined by 8 U.S.C. 1101(a)(43)(F), for purpose of enhancement under U.S.S.G. § 2L1.2, of illegal re-entry sentence, even though Utah classified it as a misdemeanor); United States v. Marin-Navarette, 244 F.3d 1284, 128687 (11th Cir. 2001); United States v. Christopher, 239 F.3d 1191 (11th Cir. 2001) (misdemeanor Georgia theft by shoplifting, with 12 months suspended sentence).

[484] Matter of Crammond, 23 I. & N. Dec. 9 (BIA 2001), vacated by 23 I. & N. Dec. 179 (BIA 2001). 

[485] INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A) (Supp. V 1999).

[486] Matter of Crammond, supra.

[487] Matter of Small, 23 I. & N. Dec. 448 (BIA 2002) (en banc) (misdemeanor conviction of sexual abuse of a minor, in violation of New York Penal Law § 130.60(2), with a sentence of one year in custody, constitutes an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F)).

[488] United States v. Marin-Navarette, 244 F.3d 1284 (11th Cir. 2001) (attempted third degree child molestation); Guerrero-Perez v. INS, 256 F.3d 546 (7th Cir.  2001) (Illinois Class A misdemeanor conviction for criminal sexual abuse); United States v. Gonzales-Vela, 276 F.3d 763 (6th Cir. 2001) (misdemeanor second degree sexual abuse). 

Other

SAFE HAVENS " FEDERAL " MISDEMEANORS " OFFENSES WITH ONE YEAR MAXIMUM Finding and Creating Federal Misdemeanors with One-Year Maximum Sentences
The federal accessory-after-the-fact statute, 18 U.S.C. 3, can be a tool for creating misdemeanors. Any federal offense with a two-year maximum can be reduced to a misdemeanor (with a one-year maximum) by pleading to accessory after the fact to that offense. This is useful where it is important to have a misdemeanor conviction, rather than a felony. E.g., aggravated felony crimes of violence under 18 U.S.C. 16(b); TPS felony disqualification. It is also useful to reduce a two-year maximum to a one-year maximum, to qualify for the Petty Offense Exception to CMT inadmissibility. See LaFarga v. INS, 170 F.3d 1213 (9th Cir. 1999). Counsel can do a database search of the entire United States Code and of the Code of Federal Regulations for phrases like "not more than two years" and "not more than 2 years." Two-year offenses are rare, but it would be nice to add them to the stock of offenses which we can use in negotiating misdemeanor pleas. For valuable lists of federal misdemeanors, see http://ocdw.com/pdf/102907/Federal%20Misdemeanors.pdf; http://nycrimbar.org/Members/briefs/Misdemeanors.pdf Thanks to Joe Beeler.