Safe Havens
§ 7.3 A. Elements of the Aggravated Felony Deportation Ground
For more text, click "Next Page>"
A conviction must fall within a particular aggravated felony category to trigger deportation. While the statute expressly provides that the definition applies to convictions rendered before or after the 1996 amendments to the statute, there is a question whether due process forbids retroactive application of an expanded aggravated felony definition to a conviction entered in reliance on the fact that the conviction did not trigger deportation as an aggravated felony at the time of the plea.[1]
The most comprehensive discussion of the elements of each aggravated felony conviction is contained in N. Tooby, Aggravated Felonies (2003), which is too extensive to reproduce here. The basic elements of the aggravated felony grounds for removal are: (1) alienage; (2) conviction; (3) after the effective date; (4) after admission; and (5) of an offense qualifying as an aggravated felony. Unless each of these elements exists, the noncitizen is not deportable on account of this ground of deportation. Whether a particular offense meets the federal “aggravated felony” definition is discussed in more detail in Aggravated Felonies, Chapter 5 (aggravated felony categories) and Aggravated Felonies, Appendix A (complete index of cases concerning whether a particular conviction falls within a particular Aggravated Felony category).[2] All cases holding that a given conviction is not an aggravated felony are included in Chapter 8, infra, organized by type of crime.
[1] United States v. Ubaldo-Figueroa, 364 F.3d 1042 (9th Cir. April 7, 2004) (illegal re-entry conviction reversed on grounds deportation order was invalid due to IJ failure to properly advise of relief or right to appeal; concurring opinion stated respondent was prejudiced since he had plausible arguments that he was eligible for former § 212(c) relief, and that retroactive application of the expanded aggravated felony definition violated due process); Gonzalez-Gonzalez v. Weber, Case No. 03-RB-0678 (MJW) (D. Colo. May 22, 2003) (unpublished) (petition for writ of habeas corpus granted holding that a possession conviction could not be considered an aggravated felony, under Yanez, where the defendant relied upon existing law that it was not an aggravated felony at the time of the plea). Petitioner was represented by Jim Salvator of Lafayette, Colorado.
[2] See N. Tooby, Aggravated Felonies § 3.2 (2003).
