(A) Safe Havens Applicable to All or Many Aggravated Felony Categories.  In examining a particular offense or record of conviction, it is important to consider all possible safe havens, including general safe havens that apply to all or many conviction-based grounds of deportation:

 

(1)       Persons whose citizenship status or nationality renders them immune from the grounds of deportation.

 

                        (a)  United States Citizens, see § 4.5, supra;

                        (b)  Nationals of the United States, see § 4.6, supra;

 

                        (c)  American Indians born in Canada, see § 4.7, supra.

 

(2)       Dispositions that are not considered convictions of a crime.  See § 4.9, supra.

 

                        (a)  Juvenile delinquency dispositions, see § 4.10, supra;

 

(b)  Dispositions under a procedure that is not considered criminal procedure, so the disposition is not considered a conviction of a crime, see § 4.11, supra;

 

                        (c)  Certain foreign convictions for conduct that is not considered

                        criminal under United States law, see § 4.12, supra.

 

(3)       Dispositions of criminal cases that do not constitute convictions, under the immigration-law definition of “conviction.”  See § 4.13, supra.

 

                        (a)  Acquittal, see § 4.15, supra;

 

                        (b)  Dismissal before conviction, see § 4.16, supra;

 

                        (c)  Deferred prosecution, see § 4.17, supra;

 

                        (d)  Deferred verdict, see § 4.18, supra;

 

                        (e)  Deferred sentence, see § 4.19, supra.

 

(4)       Convictions in criminal cases that are not considered sufficiently final to permit the initiation of deportation proceedings, because an appeal is pending or they are still subject to appeal, see § 4.21, supra.

 

(5)       Convictions that have been effectively eliminated for immigration purposes by some form of post-conviction relief, see § 4.24, supra.

 

(a)    Judicial Recommendations Against Deportation, see § 4.25,

         supra;

 

(b)    Executive pardons, see § 4.26, supra;

 

(c)    State rehabilitative relief, see § 4.27, supra;

(d)    Convictions that have been vacated on a ground of legal

         invalidity, see § 4.28, supra;

 

(e)    Sentences that have been modified, reduced, or eliminated by

         post-conviction relief, see § 4.29, supra.

 

(6)       Convictions that are defective on some ground that may be raised in immigration court as a defense to removal, see § 4.30, supra.

 

                        (a)  Convictions by a court that lacks jurisdiction to render a

                        conviction, see § 4.31, supra;

 

                        (b)  Convictions (usually foreign convictions) that are rendered in

                        absentia without adequate notice to the defendant, see § 4.32, supra.

 

(7)       Convictions that do not follow admission do not trigger any ground of removal described in INA § 237(a), 8 U.S.C. § 1227(a).  See § 4.33, supra.

(8)       Convictions for unlisted non-substantive offenses (i.e., non-substantive offenses other than attempt and conspiracy, unless the specific aggravated felony category expressly includes it):

 

      (a)  Accessory After the Fact.  See § 7.8, supra.

 

      (b)  Aiding and Abetting.  See § 7.9, supra.

 

(c)    Facilitation.  See § 7.10, supra.

 

     (d)  Misprision of a Felony.  See § 7.11, supra.

 

(e)  Solicitation.  See § 7.12, supra.

 

(f)  Other Non-Substantive Offenses.  See § 7.13, supra.

 

(9)       Foreign convictions for which release from custody occurred more than 15 years ago.  See § 7.15, supra.

 

(10)     Convictions that did not fit within the applicable aggravated felony category on the date of the plea or plea agreement.  See § 7.3, supra.

 

(11)     Convictions in violation of the law of a local political subdivision, rather than in violation of Federal or State law.  The aggravated felony definition also excludes convictions in violation of the law of an Indian tribal government.  See § 7.16, supra.

 

(12)     Convictions of violating a statute that is not listed in the aggravated felony category.  See § 7.17(A), supra.

(13)     Convictions of an offense that falls within a statute listed in an aggravated felony category, but which does not fall within the limiting language of a parenthetical contained within the category.  See § 7.17(B), supra.

 

(14)     Convictions of an offense that cannot be said to be “related to” an offense listed in an aggravated felony category.  See § 7.17(C), supra.

 

(15)     Convictions of an offense that falls within more than one aggravated felony category, yet does not meet all requirements of all applicable categories.  See § 7.29(B), infra.

Fifth Circuit

DEFINITION OF FELONY - MISDEMEANOR CONVICTION PUNISHABLE BY UP TO 18 MONTHS IMPRISONMENT IS A FELONY FOR IMMIGRATION PURPOSES AGGRAVATED FELONY - CONTROLLED SUBSTANCES OFFENSES - COLORADO MISDEMEANOR SIMPLE POSSESSION PUNISHABLE BY UP TO 18 MONTHS IMPRISONMENT IS AN AGGRAVATED FELONY
U.S. v. Sanchez-Villalobos, __ F.3d __, 2005 WL 1332244 (5th Cir. June 7, 2005) (misdemeanor simple possession, under Colorado Colo.Rev.Stat. 18-1.3- 501(1), punishable by up to 18 months imprisonment is an aggravated felony for sentencing purposes, as it is punishable by imprisonment for more than one year).

Ninth Circuit

AGGRAVATED FELONY - CHOICE OF DHS WHAT TO CHARGE
Bobb v. Atty Gen. of the United States, __ F.3d __ (9th Cir. Aug. 3, 2006) (the DHS is not required to charge noncitizens under the aggravated felony category that best describes the offense of conviction; DHS can charge under any category as long as the offense falls within that category), but see Nugent v. Ashcroft, 367 F.3d 162 (3d Cir. 2004) [offense that is both fraud and theft must meet both sentence and loss requirements]. http://caselaw.lp.findlaw.com/data2/circs/3rd/052891p.pdf