For many of the most common aggravated felonies, the sentence imposed is decisive.  These offenses constitute aggravated felonies if and only if a sentence of one year or more in custody is ordered by the court.  Therefore, for these offenses, the many defenses against a sentence imposed of one year or more constitute complete defenses to aggravated felony status.  See § 3.63, infra.

 

            The following offenses, in alphabetical order, constitute aggravated felonies only if custody of one year or more was ordered by the sentencing court.[492]

 

·        accessory after the fact[493]

·        bribery of a witness[494]

·        burglary[495]

·        commercial bribery[496]

·        counterfeiting[497]

·        crimes of violence[498]

·        document fraud[499]

·        forgery[500]

·        obstruction of justice[501]

·        perjury[502]

·        receipt of stolen property[503]

·        subornation of perjury[504]

·        theft[505]

·        trafficking in vehicles with altered identification numbers[506]

 

The basic rule regarding these particular aggravated felony convictions — which require a one-year sentence before they will be considered aggravated felonies — is as follows:  If a noncitizen, who is convicted in state or federal court of one or more of the common crimes on the “one-year” list, receives an original sentence imposed of less than one year, the conviction is a safe haven because it does not fall within the applicable aggravated felony definition.  Later vacating the one-year sentence imposed entirely, or reducing it to a sentence of less than one year, however, will also eliminate these particular aggravated felony convictions.  See § 3.66, infra.

 

A single conviction may fall into more than one damaging immigration category, and cause immigration problems under a different ground of deportation, even if a non-aggravated felony sentence is obtained.[507]  For this reason, even if a conviction is on this list of one-year offenses, and even if counsel manages to obtain, or reduce the sentence to, a sentence of less than one year, it is necessary to check to make sure the conviction does not trigger adverse immigration consequences under a separate rule.  Avoiding a deportable sentence for the listed aggravated felony convictions is the single most important sentencing technique by which to save great numbers of noncitizens from deportation.  See § 3.66, infra.

[492] See INA § § 101(a)(43)(F), (G), (J), (R), (S).  8 U.S.C. § § 1101(a)(43)(F), (G), (J), (R), (S).

[493] This offense is considered an “obstruction of justice offense.”  Matter of Batista-Hernandez, 21 I. & N. Dec. 955 (BIA 1997); INA § 101(a)(43)(S), 8 U.S.C. § 1101(a)(43)(S).

[494] INA § 101(a)(43)(S), 8 U.S.C. § 1101(a)(43)(S).

[495] INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G).

[496] INA § 101(a)(43)(R), 8 U.S.C. § 1101(a)(43)(R).

[497] INA § 101(a)(43)(R), 8 U.S.C. § 1101(a)(43)(R).

[498] INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F).

[499] INA § 101(a)(43)(P), 8 U.S.C. § 1101(a)(43)(P).

[500] INA § 101(a)(43)(R), 8 U.S.C. § 1101(a)(43)(R).

[501] INA § 101(a)(43)(S), 8 U.S.C. § 1101(a)(43)(S).

[502] INA § 101(a)(43)(S), 8 U.S.C. § 1101(a)(43)(S).

[503] INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G).

[504] INA § 101(a)(43)(S), 8 U.S.C. § 1101(a)(43)(S).

[505] INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G).

[506] INA § 101(a)(43)(R), 8 U.S.C. § 1101(a)(43)(R).

[507] The most common damaging immigration categories into which the INA groups criminal convictions are: aggravated felony convictions, convictions of crimes involving moral turpitude, controlled substance convictions, firearm convictions, and domestic violence convictions.  There are some grounds of deportation and inadmissibility that are based on conduct, rather than a conviction, but they do not arise very often.  See N. Tooby, Criminal Defense of Immigrants § § 2.21 et seq. (2003).

Ninth Circuit

AGGRAVATED FELONY " SENTENCE IMPOSED " ONE YEAR IS DEFINED AS 365 DAYS, REGARDLESS OF LEAP YEARS
Habibi v. Holder, 658 F.3d 977 (9th Cir. Sept. 14, 2011) (the phrase "one year" is defined as 365 days, regardless of leap years; noncitizen was deportable for aggravated felony, under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), even though his sentence was served during a leap year).

Other

SENTENCE - SENTENCE IMPOSED - 12 MONTHS EQUALS ONE YEAR
12 months equals one year in immigration court. See Drakes v. Zimski, 240 F.3d 246, 251 (3d Cir. 2001); United States v. Christopher, 239 F.3d 1191, 1193 (11th Cir. 2001).