The statute defining “crimes of violence,” for purposes of determining whether a state conviction constitutes an aggravated felony, is 18 U.S.C. § 16,[166] which contains two subdivisions: (a) and (b).  A conviction meeting the definition of a crime of violence under 18 U.S.C. § 16(b), but not under 18 U.S.C. § 16(a), will be a safe haven with respect to this aggravated felony category if it is (a) not a felony conviction originally, or (b) later reduced to a misdemeanor or other lesser level of offense.[167]  For this purpose, if the maximum possible custodial sentence is one year or less, the conviction will be considered a misdemeanor under the federal definition of felony.[168]

 

            Section 16(a) does not require an offense to be a felony in order to be classed as a crime of violence, as long as the statute requires as an element the use or threatened use of physical force against the person or property of another.  See § 7.44, infra.  Thus, even if the conviction is only a misdemeanor, an assault conviction which has force as an element may be considered a crime of violence under § 16(a), and thus an aggravated felony, if a sentence of one year or more is imposed.

Section 16(b), on the other hand, defines “crime of violence” to include “(b) any other offense [i.e., any offense which does not have use or threat of force as an element as required under § 16(a)] that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”[169]  This section has been used by the BIA to hold that offenses such as statutory rape, residential burglary, and involuntary manslaughter are crimes of violence, even though these offenses do not require proof of violence or the threat of violence as an element.  If the elements of the offense do not include the use or threat of force, then the conviction must be a felony in order to qualify as an aggravated felony under § 16(b) the “crime of violence” definition.

 

            Because of this felony requirement, a conviction considered to be an aggravated felony under 18 U.S.C. § 16(b), but not under § 16(a), will no longer constitute an aggravated felony once it has been reduced to a misdemeanor.[170]  This reasoning holds true not only for immigration cases, but also for illegal re-entry sentencing cases.  See § 7.23, infra.

[166] INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F).

[167] 18 U.S.C. § 16(b) specifies that the offense must be “any other offense that is a felony. . . .”  For example, a federal district court has held that a California conviction for possession of a dangerous weapon cannot constitute a crime of violence under 18 U.S.C. § 16(b) because it encompasses misdemeanors.  United States v. Villanueva-Gaxiola, 119 F. Supp.2d 1185, 1190 (D. Kansas 2000).

[168] 18 U.S.C. § 3559(a)(5).

[169] 18 U.S.C. § 16(b) (emphasis added).

[170] Matter of Song, 23 I. & N. Dec. 173 (BIA 2001).  See also LaFarga v. INS, 170 F.3d 1213 (9th Cir. 1999).

Ninth Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - 18 U.S.C. 16(B) - FELONY DEFINITION
Ortega-Mendez v. Gonzales, ___ F.3d ___, 2006 WL 1642755 (9th Cir. Jun. 15, 2006) (Ninth Circuit leaves as an open question whether the term "felony" for purposes of 18 U.S.C. 16(b) is defined by state label or term of imprisonment exceeding one year). See Francis v. Reno, 269 F.3d 162, 166-71 (3d Cir.2001); Doe v. Hartz, 134 F.3d 1339, 1342-43 (8th Cir.1998).

On August 30, 2006, the government filed a petition for rehearing in Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9th Cir. 2006).

Tenth Circuit

FELONY/MISDEMEANOR DEFINITION - SENTENCING CONTEXT
United States v. Hernandez-Garduno, __ F.3d __ (10th Cir. Aug. 21, 2006) (although labeled by Colorado state, conviction of a "misdemeanor" punishable by a maximum of 18 months imprisonment is a "felony" for purposes of illegal re-entry sentencing enhancement that requires conviction of a "felony" crime of violence).