It has become well established that, in general, a conviction need not be a felony conviction to fall within the aggravated felony definitions.[164]  All circuits to consider this issue agree.[165]  The two exceptions are the portion of the crime of violence definition contained in 18 U.S.C. § 16(b), see § 7.21, infra, and the drug trafficking aggravated felony definition.  See § 7.22, infra.

[164] Matter of Martin, 23 I. & N. Dec. 491 (BIA 2002); Matter of Small, 23 I. & N. Dec. 448 (BIA 2002).

[165] E.g.,United States v. Pacheco, 225 F.3d 148 (2d Cir. 2000) (RI conviction of misdemeanor theft of a small video game valued at approximately $10, for which the individual received a one year suspended sentence); United States v. Graham, 169 F.3d 787 (3d Cir. 1999) (misdemeanor NY petty larceny); United States v. Alvarez-Gutierrez, 394 F.3d 1241 (9th Cir. Jan. 14, 2005) (Nevada conviction for statutory sexual seduction, for having had sexual intercourse with a 14-year-old girl, in violation of Nev.Rev.Stat. § § 200.364, 368 (2002), constituted a sexual abuse of a minor aggravated felony under INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A) (2003), for purposes of imposing an eight-level illegal re-entry sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(C) (2003), even though it was a gross misdemeanor punishable by a sentence of up to one year, Nev.Rev.Stat. § 193.140 (2002)), following United States v. Gonzalez-Tamariz, 310 F.3d 1168, 1172 (9th Cir. 2002) (see lengthy and well-reasoned dissent by Judge Berzon); United States v. Pallares-Galan, 359 F.3d 1088, 1102 n.7 (9th Cir. 2004) (holding that “state misdemeanor convictions relating to child sexual matters constitute aggravated felonies of ‘sexual abuse of a minor’ under § 1101(a)(43)(A).”); Valdez-Camacho v. Ashcroft, 110 Fed.Appx. 808, 2004 WL 2203948 (9th Cir. Sept. 29, 2004) (unpublished) (conviction of statutory rape constitutes sexual abuse of minor aggravated felony even though it was reduced to a misdemeanor); United States v. Robles-Rodriguez, 281 F.3d 900, 902-03 (9th Cir. 2002) (“‘Aggravated felonies’ are not necessarily a subset of felonies; for instance, an offense classified by state law as a misdemeanor can be an ‘aggravated felony’ ... if the offense otherwise conforms to the federal definition of ‘aggravated felony’ found in 8 U.S.C. § 1101(a)(43).”); United States v. Christopher, 239 F.3d 1191 (11th Cir. 2001) (misdemeanor GA theft by shoplifting, with 12 months suspended sentence); United States v. Holguin-Enriquez, 120 F.Supp.2d 969 (D.Kan. 2000) (misdemeanor Washington state conviction of assault with 365-day suspended sentence); Erewele v. Reno, 2000 U.S. Dist. LEXIS 11765 (N.D. Ill. 2000) (misdemeanor shoplifting with one-year suspended sentence held to be an aggravated felony theft offense); Jaafar v. INS, 77 F.Supp.2d 360 (W.D.N.Y. 1999) (misdemeanor NY petty larceny held aggravated felony); United States v. Graham, 927 F.Supp. 619 (W.D.N.Y. 1996) (misdemeanor NY criminal sale of marijuana).

Other

SAFE HAVENS " FEDERAL " MISDEMEANORS " OFFENSES WITH ONE YEAR MAXIMUM Finding and Creating Federal Misdemeanors with One-Year Maximum Sentences
The federal accessory-after-the-fact statute, 18 U.S.C. 3, can be a tool for creating misdemeanors. Any federal offense with a two-year maximum can be reduced to a misdemeanor (with a one-year maximum) by pleading to accessory after the fact to that offense. This is useful where it is important to have a misdemeanor conviction, rather than a felony. E.g., aggravated felony crimes of violence under 18 U.S.C. 16(b); TPS felony disqualification. It is also useful to reduce a two-year maximum to a one-year maximum, to qualify for the Petty Offense Exception to CMT inadmissibility. See LaFarga v. INS, 170 F.3d 1213 (9th Cir. 1999). Counsel can do a database search of the entire United States Code and of the Code of Federal Regulations for phrases like "not more than two years" and "not more than 2 years." Two-year offenses are rare, but it would be nice to add them to the stock of offenses which we can use in negotiating misdemeanor pleas. For valuable lists of federal misdemeanors, see http://ocdw.com/pdf/102907/Federal%20Misdemeanors.pdf; http://nycrimbar.org/Members/briefs/Misdemeanors.pdf Thanks to Joe Beeler.