Safe Havens

(B)  Different Definitions of “Felony.”  Different definitions of felony may be used for different immigration and criminal law purposes, and there is a lack of clarity concerning the definition of “felony” for these purposes.  Several different definitions may be employed:

            (1)  The conviction may be labeled a felony under applicable state law in the state of conviction.  If so, it is considered a felony under the drug-trafficking prong of the aggravated felony illicit trafficking category that is in force in the BIA decisions and the majority of federal circuits.  See § 7.22(E), infra.

            (2)  The federal conviction may be considered a felony under federal law, which is generally defined as a conviction of an offense which may be punished by a sentence in excess of one year in custody.  This rule is in force in all circuits.

            (3)  The conviction may be labeled a misdemeanor under applicable state law, and yet have a maximum possible sentence under state law in excess of one year in custody, and thus qualify as a felony under the federal definition if it had been punishable as such if prosecuted in federal court.  If so, it is considered a misdemeanor under the drug-trafficking prong of the aggravated felony illicit trafficking category that is in force in the BIA decisions and the majority of federal circuits, and is thus not an aggravated felony under either prong.  See § 7.22(E), infra.

            (4)  The conviction may be labeled as a felony under applicable state law, yet have a maximum possible sentence of one year or less, which would qualify it as a misdemeanor under the federal definition of felony.  This is the “hypothetical federal felony” rule in force in the Second, Third, and Ninth Circuits.  See § 7.22(A), infra.