Safe Havens

(A)  Aggravated Felonies.[29]  See § 7.84, supra.

            The statute includes as an aggravated felony “an offense described in § § 875, 876, 877, or 1202 of title 18, United States Code (relating to the demand for or receipt of ransom).”[30]  Since this definition specifically refers to several federal statutes, a state conviction must have identical elements to one of these federal statutes for a state conviction to be considered an aggravated felony under this theory.  There is no sentence imposed requirement.  Therefore, a qualifying conviction with no custody imposed at all will still qualify as an aggravated felony under this theory.  Kidnapping may also be considered an aggravated felony crime of violence,[31] depending on the elements of the statute violated.

Second Circuit:

Dickson v. Ashcroft, 346 F.3d 44 (2d Cir. Sept. 9, 2003) (New York conviction of unlawful imprisonment in the first degree, in violation of N.Y. Penal Law § 135.10, with sentence of one to three years, held not to be an aggravated felony crime of violence within the meaning of INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for deportation purposes, since the statute of conviction was divisible and the record of conviction did not establish that the particular conviction fell within the crime of violence portion of the statute, since it was improper to consider the narrative statement of facts contained in the presentence report as part of the record of conviction).

[29] See N. Tooby, Aggravated Felonies § 5.33 (2003).

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

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