Aggravated Felonies

(A)  Why Charge One or the Other?  As described in § 5.73, supra, the sexual abuse of a minor category requires that the victim be a minor.  The crime of violence category does not have this requirement.  On the other hand, the crime of violence category requires that the offense have as an element the use, attempted use or threatened use of force in the commission of the offense,[666] or that the offense is a felony and involves a substantial risk that force will be used in the commission of the offense.[667]  The crime of violence category also requires that a sentence of one year or more be imposed before the conviction will trigger deportation.[668]  The sexual abuse of a minor category does not any of these requirements.

            Since many convictions arguably fall under both categories counsel can argue that, under the analysis in Nugent v. Ashcroft,[669] the offense must meet the requirements of both categories (i.e., the offense must require proof of age, and the imprisonment imposed be at least one year).

[666] See § § 5.17-5.22, supra.

[667] See § § 5.23-5.33, supra.

[668] See § 5.16, supra.

[669] Nugent v. Ashcroft, 367 F.3d 162 (3d Cir. May 7, 2004) (because theft by deception falls in both the theft and fraud portions of the aggravated felony definition, a conviction for theft by deception must be punished by at least one year imprisonment, and there must be a loss to the victim in excess of $10,000).  See § 5.55, supra.