The statute includes as an aggravated felony “an offense relating to a failure to appear before a court pursuant to a court order to answer to or dispose of a charge of a felony for which a sentence of 2 years’ imprisonment or more may be imposed . . . .”[367]   This category therefore appears to have the following elements:

 

            (1)  a conviction of an offense

            (2)  relating to a failure to appear

            (3)  before a court

            (4)  pursuant to a court order

            (5)  to answer to or dispose of a charge

            (6)  of a felony

            (7)  for which two years imprisonment or more may be imposed.

 

The language used in this section, however, arguably has two different possible meanings:

 

            (a) it might require a conviction of a Failure To Appear offense for which a sentence of two years’ imprisonment or more may be imposed; or

 

            (b) it might require a conviction of an offense relating to a failure to appear to dispose of an underlying felony charge, for which underlying felony a sentence of two years’ imprisonment or more may be imposed.

 

Although the language of the statute appears to mention two layers of offenses, the clause referring to the punishment is similar in structure to INA § § 101(a)(43)(F), (G), (R) and (S).  It is possible to argue that in (Q), Congress expressly referred to the “underlying” offense to address the punishment for that offense and by not using that term in (T), meant for the “2 years’ imprisonment” language to refer to the maximum possible punishment for the failure to appear itself, not the underlying offense.

 

This category has many safe havens or defenses:

 

            (1)  If the criminal court simply makes a finding of failure to appear, and revokes bail or own recognizance release, that does not constitute a conviction for an offense of failure to appear and cannot constitute an aggravated felony under this category because there was no criminal charge or plea. 

 

(2)  Moreover, if the conviction was under a statute that did not require, as an element, that the failure to appear must violate a court order, then the conviction does not constitute an aggravated felony under this category.  Many state failure to appear statutes do not have this as an essential element.  A felony conviction in Connecticut for failing to appear when legally called was held not to constitute an aggravated felony conviction for failing to appear to answer a felony in violation of court order,[368] because the elements of the statute did not establish that the failure to appear was in violation of the court order, rather than the defendant’s mere promise to appear.  The INS was not permitted to go behind the elements of the state statute of conviction, nor to rely on the reporter’s transcript of the sentencing hearing, nor on general procedures used in Connecticut criminal cases.[369] 

 

            (3)  This category (possibly) requires a two-year potential sentence before the offense is considered an aggravated felony.  A safe haven can be created if a disposition can be arranged with a plea of guilty to a failure to appear offense to answer (a) a misdemeanor, or (b) a felony with a potential sentence of less than two years.  See § 3.65, supra.  It may be possible to create a safe haven by later reducing the level of the offense from a felony to a misdemeanor, or from a felony with a maximum of two years or more to a lesser degree of felony with a maximum of less than two years.  Sentence reductions are binding on immigration and federal courts for purposes of assessing the immigration consequences of a conviction.  See § 6.19, infra.

 

            If the plea bargain limited the maximum sentence to a term of less than two years imprisonment, arguably “a sentence of 2 years’ imprisonment or more may [not] be imposed” for this offense, and the failure to appear would not constitute an aggravated felony (assuming the plea bargain was still enforceable after the failure to appear).

 

            Even if the statutory maximum for the offense was two years or more, if the Constitution limited the maximum sentence to a term of less than two years, the offense should not qualify under this aggravated felony category, since there should be an implicit requirement that the potential sentence must be a lawful sentence to qualify.  See § 3.65, supra.

 

The maximum sentence that “may be imposed” for a conviction is the standard maximum referred to by the United States Supreme Court, in Blakely v. Washington,[370] which held it violates the constitutional right to trial by jury to sentence a defendant on the basis of facts that were not included in the elements of the offense nor admitted factually by the defendant at plea or sentencing.  Blakely applies to immigration cases because the United States Constitution prohibits a sentence greater than allowed by the rule of that case.

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

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

[369] Barnaby v. Reno, 142 F.Supp.2d 277 (D. Conn. 2001).

[370] Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531 (2004).

Ninth Circuit

AGGRAVATED FELONY - FAILURE TO APPEAR - FAILURE TO APPEAR
Renteria-Morales v. Mukasey, 551 F.3d 1076 (9th Cir. Dec. 12, 2008), withdrawing previous opinion, 532 F.3d 949 (9th Cir. July 10, 2008) (federal conviction of failure to appear, in violation of 18 U.S.C. 3146, qualifies as an aggravated felony obstruction of justice conviction, under INA 101(a)(43)(S), 8 U.S.C. 1101(a)(43)(S), if a sentence of one year or more was imposed, because the statute requires an intentional failure to appear; conviction is not an aggravated felony "failure to appear" conviction, under INA 101(a)(43)(T), 8 U.S.C. 1101(a)(43)(T).)

AGGRAVATED FELONY - FAILURE TO APPEAR - FAILURE TO APPEAR
Renteria-Morales v. Mukasey, 551 F.3d 1076 (9th Cir. Dec. 12, 2008), withdrawing previous opinion, 532 F.3d 949 (9th Cir. July 10, 2008) (federal conviction of failure to appear, in violation of 18 U.S.C. 3146, is broader than the aggravated felony definition of failure to appear, under INA 101(a)(43)(T), since 18 U.S.C. 3146 can be violated by failing to appear for a misdemeanor, for reasons other than to dispose of a charge, and based upon orders other than those issued by a court).

AGGRAVATED FELONY - FAILURE TO APPEAR
Renteria-Morales v. Mukasey, 551 F.3d 1076 (9th Cir. Dec. 12, 2008), withdrawing previous opinion, 532 F.3d 949 (9th Cir. July 10, 2008) ("The subsection includes any offense "relating to" the following elements: (1) a failure to appear before a court; (2) pursuant to a court order; (3) to answer to or dispose of a charge of a felony; (4) where the felony was one for which a sentence of two years' imprisonment or more may be imposed.").