Safe Havens

(A)  Necessary Elements.  To identify, or construct a safe haven, it may be critical to establish that a conviction is not a felony, in order to avoid various grounds of deportation.  Because the determination of the level of the offense may be quite complicated, counsel must in order to ascertain whether a given disposition constitutes a deportable conviction first establish (a) whether the conviction is called a felony under applicable state law, (b) what is the maximum possible length of incarceration that may be imposed as a sentence for the conviction, and (c) what would be the level of the offense if the offense had been prosecuted in federal court.  Then, it is necessary to see what rule is applied as to the particular ground of deportation, in the particular circuit, to determine whether a given conviction is considered a felony for deportation purposes.