The Board of Immigration Appeals has been given the job of defining a “generic” offense for those portions of the aggravated felony definition that are not written in reference to federal law.[317]  In some cases, the BIA has adopted or decided upon a generic definition for an offense.  The general trend appears to favor establishment of standard federal definitions of the “aggravated felony” categories.  If such a standard definition can be discerned, and if the particular offense falls outside that definition, the conviction would not constitute an aggravated felony.[318]

 

However, in some cases, as with the sexual abuse of a minor aggravated felony, the BIA has refused to adopt a limiting generic definition.  Instead, the BIA may choose to use a federal law as a non-binding guide to whether a conviction will be considered an aggravated felony.  In these circumstances, it can be difficult to predict which state offenses will come within the general terms on the aggravated felony list such as rape, sexual abuse of a minor, obstruction of justice, fraud, perjury, etc.  For example, regarding sexual crimes, does the definition of rape depend on how each state happens to define it — certain states prohibiting forced intercourse, others any kind of aggravated sexual assault — or is there a model federal definition with which the state statute of conviction should be compared?  What age must the victim have and what acts must occur for an offense to fall within the category of “sexual abuse of a minor”?  These questions are not only important to serious criminal offenders who have committed rape or abused children, but also to the large number of people convicted of what can be a relatively minor misdemeanor, statutory rape.  Statutory rape in some states includes consenting sex between two persons one of whom is under the age of 18.

 

Practitioners faced with a state charge that may fall under one of the yet undefined portions of the aggravated felony definition should attempt by any means possible to steer far clear of the danger zone.  Sometimes, however, this is impossible, and the client is faced with choosing among alternatives of greater or less likelihood of a conviction being considered an aggravated felony.

[317] INA § § 101(a)(43)(A), (G), (K)(i), (M)(i), (Q), (R), (S), (T), 8 U.S.C. § § 1101(a)(43)(A), (G), (K)(i), (M)(i), (Q), (R), (S), (T).

[318] See Chapter 5, and Appendices A and B, infra, to determine whether a generic definition has been developed for a particular portion of the aggravated felony definition.

BIA

AGGRAVATED FELONY - GENERIC DEFINITION - BIA DUTY TO FILL IN AMBIGUITIES IN CONGRESSIONAL INTENT
Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, ___ (BIA May 20, 2008) ("If that language constitutes a plain expression of congressional intent, it must be given effect. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., supra, at 842-43. When Congress's intent is not plainly expressed, however, it is our duty to resolve any ambiguities and fill any statutory gaps in a reasonable manner, at least insofar as they pertain to portions of the statute that fall within the scope of our expertise. INS v. Aguirre-Aguirre, 526 U.S. 415, 424-33 (1999) (following Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., supra, at 843-44). In doing so, we bear in mind that "the words of a statute must be read in their context and with a view to their place in the overall statutory scheme." Food and Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (quoting Davis v. Michigan Dep't of Treasury, 489 U.S. 803, 809 (1989)); see also Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997).").

Sixth Circuit

AGGRAVATED FELONY - GENERIC DEFINITION
Negrete-Rodriguez v. Mukasey, 518 F.3d 497 (7th Cir. Mar. 3, 2008) ("Negrete is arguing that defined in and described in are synonymous. We reject this argument, primarily because it renders the distinction between the terms described in and defined in meaningless. See United States v. Michalek, 54 F.3d 325, 335-36 (7th Cir. 1995). Also, it does not follow that, because Congress has defined some crimes in general terms, it had to define all crimes in general terms in order for the offense's state law counterpart to be included within the definition of an aggravated felony. Indeed, many firearms offenses are not susceptible to being easily described in general terms, see, e.g., 18 U.S.C. 922(g)(4) (offense of possession of a firearm or ammunition by someone who has been adjudicated as a mental defective or who has been committed to a mental institution); while others are dependent on other provisions in a statutory scheme. See, e.g., 18 U.S.C. 922(o) (making it unlawful for a person to possess a "machinegun," where that term is defined elsewhere in the National Firearms Act). Congress could therefore rationally have decided to describe those offenses by reference to the statutory provision where they were located rather than conjuring up an awkward general descriptor, or having to recopy several parts of a statutory scheme.").

Ninth Circuit

AGGRAVATED FELONY - DEFINITION OF AGGRAVATED FELONY - WHERE THE AGGRAVATED FELONY DEFINITION CONTAINS A PHRASE CONGRESS HAS DEFINED UNDER FEDERAL CRIMINA LAW, THE COURT WILL FIRST LOOK TO THAT FEDERAL DEFINITION IN DEFINING THE PHRASE
Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. Oct. 17. 2008) (en banc) (where the aggravated felony definition uses a phrase used elsewhere in federal law, the court will first look at a statute defining that phrase as a federal criminal offense).