Aggravated Felonies

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.