(B)  Safe Havens Applicable to Specific Aggravated Felony Categories.  The discussion in this chapter will identify safe haven dispositions with respect to the definitions of particular aggravated felony offenses, organized alphabetically according to the name of the offense in question.  Note that a safe haven applicable to a certain aggravated felony category may trigger deportation by falling within a different aggravated felony category, so it is important to make sure that the conviction does not fall within more than one category.

 

            The fact that one conviction might fall within two or more different aggravated felony categories can give rise to a safe haven argument that to trigger deportation, the conviction must meet the requirements of both categories.  The Third Circuit has held to this effect with respect to a conviction that fell within the theft offense and fraud offense categories, holding that it must meet both the one-year sentence imposed requirement of the theft category, and the loss in excess of $10,000 requirement of the fraud category, before it would trigger deportation as an aggravated felony.[270]  The court reasoned that when an offense is both an aggravated felony theft offense and an offense involving fraud or deceit (“a hybrid offense”), the term “theft offense” INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G) becomes a sub-class of the term any “offense” in INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i).  Imagine a diagram with (M)(i) (any offense) as the outer circle and (G) (any offense that involves theft) as the inner circle.  Since everything in the inner circle must have all the characteristics of the outer circle, all such hybrid offenses must both be punishable by at least one year in prison, and the victim must have suffered a loss of at least $10,000 or more.  Where the $10,000 requirement (part of the bigger circle) is not met, the offense cannot be an aggravated felony.   This argument could be applied to other aggravated felony categories as well.

 

[270] Nugent v. Ashcroft, 367 F.3d 162 (3d Cir. May 7, 2004) (Pennsylvania conviction of theft by deception, in violation of 18 Pa. Cons. Stat. Ann. § 3922(a) (West 1983 & Supp. 2000), with an indeterminate sentence from a minimum of six months to a maximum of 23 months, does not trigger removal as an aggravated felony fraud conviction under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), since the loss to the victim was under $10,000, and because it is a hybrid offense, as a theft offense as well as a fraud offense, it must qualify as an aggravated felony under both categories or it does not trigger removal).

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