Criminal Defense of Immigrants


§ 10.87 (A)

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(A)  Immigration Law.  The term “felony” is not expressly defined under immigration statutes or regulations, with one exception.  Federal regulations pertaining to eligibility for Temporary Protected Status define “felony” as follows:


            Felony means a crime committed in the United States, punishable by imprisonment for a term of more than one year, regardless of the term such alien actually served, if any, except: When the offense is defined by the State as a misdemeanor and the sentence actually imposed is one year or less regardless of the term such alien actually served. Under this exception for purposes of section 244 of the Act, the crime shall be treated as a misdemeanor.

. . . [346]


Counsel could use this definition, for its persuasive value, in other immigration contexts, such as the question whether a conviction constitutes a felony for purposes of constituting an aggravated felony crime of violence.[347]


                In Lopez v. Gonzales, the Supreme Court adopted a standard, uniform, federal definition of felony in the context of the requirement that a state conviction must be a “felony” to constitute a drug trafficking aggravated felony.  The court held that a state felony conviction for simple possession of a controlled substance cannot be considered an aggravated felony drug trafficking offense[348] since this possession offense would have constituted a misdemeanor if prosecuted in federal court.[349]  The court reasoned that simple possession offenses do not have any element of trafficking, and most of them[350] cannot be considered felonies, under 18 U.S.C. § 924(c)(2), because they would only be misdemeanors if prosecuted in federal court.  See § § 19.57-19.59, infra.  This decision suggests that the court prefers using the same definition for aggravated felonies in both immigration and criminal sentencing proceedings. See § § 19.57-19.59, infra.

[346] 8 C.F.R. § 244.1.

[347] 18 U.S.C. § 16(b); INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B).

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

[349] Lopez v. Gonzales, 549 U.S. ___, 127 S.Ct. 625 (Dec. 5, 2006).

[350]  The only exceptions are in three instances in which possession of a controlled substance would be a felony if prosecuted in federal court: (1) a possession offense in which the prosecution has charged and proven a prior final drug conviction, (2) possession of more than five grams of cocaine base, or (3) possession of any amount of flunitrazepam. 21 U.S.C. §   844.



Eighth Circuit

United States v. Figueroa-Alvarez, ___ F.3d ___, 2015 WL 4620324 (8th Cir. Aug. 4, 2015) (Iowa conviction for committing third-degree attempted burglary, an aggravated misdemeanor punishable by up to two years in prison under state law, Iowa Code 713.6B, 903.1(2), constituted a felony under federal criminal law, for illegal reentry sentencing purposes).