Several offenses, for which the actual sentence is irrelevant,[266] are defined as aggravated felonies on the basis of the potential or maximum possible sentence that may be imposed either for the particular offense or some related offense: organized crime (RICO) offenses and the two varieties of failure to appear in court in criminal cases (to answer a charge, or to appear for sentence).  See § § 7.73 ff. (failure to appear), 7.95 (RICO), infra.

            For example, a RICO offense “for which a sentence of one year or more may be imposed,” constitutes an aggravated felony.[267]  The aggravated felony category also includes two different aggravated felonies of failing to appear (a) to answer a criminal charge “pursuant to a court order to answer or dispose of a charge of a felony for which a sentence of 2 years’ imprisonment or more may be imposed,”[268] or (b) for sentencing “if the underlying offense is punishable by imprisonment for a term of five years or more . . . .”[269]

 

            A conviction would constitute a safe haven, even if it meets these definitions, if the maximum possible sentence for the applicable offense is less than that specified in the definition.

 

            If the Constitution limits the sentence the criminal court can impose, immigration counsel could argue that the maximum legal sentence does not exceed the constitutionally permitted level.  See § 5.57(D), supra.

[266] See N. Tooby, Aggravated Felonies § 3.30 (2003).

[267] INA § 101(a)(43)(J), 8 U.S.C. § 1101(a)(43)(J) (emphasis supplied).

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

[269] INA § 101(a)(43)(Q), 8 U.S.C. § 1101(a)(43)(Q) (emphasis supplied).

Ninth Circuit

AGGRAVATED FELONY " CHILD PORNOGRAPHY
Aguilar-Turcios v. Holder, 740 F.3d 1294 (9th Cir. Jan. 23, 2014) (military conviction for violation of Article 92 of the Uniform Code of Military Justice, providing that official use of government computers does not include viewing pornography, does not categorically constitute a aggravated felony, because one could violate the article without necessarily being guilty of all the elements of a generic federal child pornography offense).

AGGRAVATED FELONY " CHILD PORNOGRAPHY
Aguilar-Turcios v. Holder, 740 F.3d 1294 (9th Cir. Jan. 23, 2014) (military conviction for violation of Article 92 of the Uniform Code of Military Justice, providing that official use of government computers does not include viewing pornography, does not categorically constitute a aggravated felony, because one could violate the article without necessarily being guilty of all the elements of a generic federal child pornography offense).