Criminal Defense of Immigrants


§ 10.87 (B)

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(B)  Federal Convictions.  A federal felony conviction will always be considered a “felony” for immigration purposes.  Under federal law, “felony” is generally defined, for use by federal criminal courts, as an offense for which the maximum term of imprisonment is “more than one year.”[351]  Moreover, the U.S. Sentencing Guidelines define “felony” to include “any federal, state or local offense punishable by imprisonment for a term exceeding one year.”[352]  The Ninth Circuit has applied this generic federal definition of felony in a related context.[353] The BIA has applied the federal definition of felony[354] in non-drug related contexts.[355] 

[351] 18 U.S.C. § 3559(a)(5).  Compare 18 U.S.C. § 3559(a)(6) (a Class A misdemeanor is an offense with a maximum sentence of “one year or less but more than six months”).

[352] U.S.S.G. § 2L1.2, Application Note 1.

[353] United States v. Arrellano-Torres, 303 F.3d 1173 (9th Cir. 2002) (Nevada four-year suspended sentence for possession of a controlled substance constituted an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), even though execution was required to be suspended under a state statute forbidding actual incarceration for possession, and was held to be a felony under the federal test for determining whether a conviction is a felony since the maximum sentence possible was in excess of one year).

[354] 18 U.S.C. § 3559(a)(5).

[355] See, e.g., Matter of Crammond, 23 I. & N. Dec. 9 (BIA 2001), vacated by 23 I. & N. Dec. 179 (BIA 2001).



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).