Aggravated Felonies

 

To determine whether a given conviction constitutes an aggravated felony, within the meaning of INA § 101(a)(43), it is necessary to go through the following analysis:

 

(1)        Examine the record of conviction[1] to identify the statute that defines the offense of conviction on the date of the offense.  This examination is limited to determining the section and subsection number or offense of which the person was convicted.[2]

(2)        Determine whether judicial decisions have added essential elements to those specified by the Legislature.[3]

(3)        If the statute of conviction includes only one offense, with one set of essential elements,[4] determine the minimum conduct necessary to satisfy the essential elements of the offense.

(4)        If the statute of conviction punishes multiple offenses, as delineated by subsections or a disjunctive,[5] determine (if possible) the set of elements of which the person was found guilty or to which the person entered a plea.  Then determine the minimum conduct necessary to satisfy the essential elements of the offense.

(5)        Compare the set of elements necessary to convict to the elements of the relevant aggravated felony category.[6]

(6)        If any instance can be imagined, in which all essential elements necessary to convict under the criminal statute are established, yet the offense does not fall within the aggravated felony definition, then the conviction in question must be held not to be an aggravated felony.[7]

 

The nature of a conviction is determined according to the elements of the offense, rather than the facts of the offense.[8]  The courts may not go behind the record of conviction to ascertain the facts of the case,[9] in order to determine whether the facts in the case, beyond the minimum facts necessary to convict, trigger a ground of removal.

 

All reasonable doubts must be found in favor of the noncitizen.[10]

[1] See § § 4.14-4.32, infra.

[2] See § 4.4, infra.

[3] See § 4.5, infra.

[4] See § 4.13, infra.

[5] See § § 4.9-4.12, infra.

[6] See § 4.7, infra; Chapter 5, infra.

[7] See § 4.7, infra.

[8] See § § 4.17-4.19, infra.

[9] See § 4.16, infra.

[10] See § 4.41, infra.