(C)  State Convictions.  If the conviction is rendered in state court, the question of whether a conviction is a “felony” for immigration purposes is more complex.  There are three factors that can contribute to the conclusion that a conviction is a felony conviction: (1) the level of the offense if it had been prosecuted in federal court (“hypothetical federal prosecution test”); (2) whether the convicting jurisdiction labels it as a felony or misdemeanor; and (3) the maximum sentence to custody possible for the conviction under the law of the jurisdiction of conviction.[356]

 

In some states, such as Arizona and California, it is possible for the sentencing court to set the level of some convictions as a felony or a misdemeanor.  If the court sets the level of the offense as a misdemeanor, that offense will be “labeled” a misdemeanor.

 

                Similarly, the setting of the level of the offense as a misdemeanor rather than as a felony can affect the maximum possible custodial sentence — the second factor that can contribute to a conclusion that a conviction is a misdemeanor rather than a felony.  In states in which the maximum sentence for a misdemeanor is one year or less in custody, setting the level of the offense as a misdemeanor can create a conviction with a maximum sentence of one year or less, which constitutes a misdemeanor sentence under the federal standard in which an offense is a misdemeanor if the maximum is one year or less, and a felony only if the maximum is in excess of one year.  See § 10.76, supra.

 

                The third factor — whether the offense would have been a misdemeanor rather than a felony if it had been prosecuted in federal court — is unaffected by state court action in designating a conviction as a misdemeanor rather than a felony.  This factor was seen as decisive by the United States Supreme Court in determining whether possession offenses constitute aggravated felony drug trafficking convictions.  See § 10.89, infra.

 

Taking these factors together, there are eight logical possibilities:

 

                (1)  Federal Felony; State Felony Label; Maximum Sentence In Excess of One Year.  Under these circumstances, both the state and federal definitions of felony have been met, and the only possible conclusion is that this conviction is a felony for immigration purposes. [357]

 

(2)  Federal Felony; State Felony Label; Maximum Sentence of One Year or Less.  This conviction would be a not be considered a felony under the general federal definition.  This permutation should therefore not be considered a felony for purposes of the crime of violence definition, under 18 U.S.C. § 16(b).  See § 10.90, infra.  This would be considered a felony in the drug trafficking aggravated felony context, since Lopez adopted the hypothetical federal felony test for this purpose.  See § 10.89, infra.  In other contexts, respondent can make a strong argument in favor of a uniform federal standard, which would be achieved by applying the federal definition of a misdemeanor as an offense with a maximum sentence of one year or less.

 

                (3)  Federal Felony; State Misdemeanor Label; Maximum Sentence in Excess of One Year.  In this situation, the conviction is a misdemeanor under the state definition, but would be a felony if it was a federal conviction with the same maximum in excess of one year.[358]  “Where federal and state law classify the offense differently, the Board of Immigration Appeal, apparently has no set rule.  In Matter of Ramos, the BIA did not address whether a misdemeanor Massachusetts DUI offense for which the respondent received two years imprisonment was a felony for purposes of 18 U.S.C. § 16(b) since the BIA held it was not a crime of violence for other reasons.”[359]  Arguably, however, a conviction under this permutation that would otherwise fall within 18 U.S.C. § 16(b) would be considered a “felony” for immigration and sentencing purposes because, despite the state label, the sentence meets the general federal[360] definition.[361]

 

                The Third Circuit held in Francis v. Reno that where state law categorizes an offense as a misdemeanor, it does not meet the definition in 18 U.S.C. § 16(b). The BIA had employed the federal definition of felony to conclude that Francis’ conviction for a Pennsylvania misdemeanor was a felony under federal law since the maximum sentence was more than one year.

 

                In reversing the BIA, the Third Circuit applied principles of statutory construction to reason that since Congress did not use the term “felony” in § 16(a), Congress intended to include felonies and misdemeanors under subsection (a), but only intended to include certain felonies under subsection (b). “Congress was obviously aware that the definition of a “felony” varies from jurisdiction to jurisdiction, and it could certainly have defined an “aggravated felony” under the INA to include any state offense that would be classified as a felony under federal law.  It did not do so.”[362] The court cited decisions from the Eighth Circuit and District of Kansas to support the argument that state classification should govern.

 

                The government argued that interpreting 18 U.S.C. § 16(b) in accordance with the state definition of felony would lead to a lack of uniformity.  The court pointed out, however, that using the federal definition does not eliminate the variation in maximum penalties from jurisdiction to jurisdiction.  For example, one state might impose a maximum sentence of six months for an offense, which would not be a felony under the federal definition, while another might impose a maximum sentence of two years for the same offense, which would be a felony under the federal definition.  Also, the court explained that using the federal definition of felony as an offense for which the maximum sentence exceeds one year fails to give effect to the language of subsection (F) which incorporates the crime of violence definition at 18 U.S.C. § 16 as an offense for which the term of imprisonment is at least one year.  Lastly, the court stated that its interpretation follows the rule of lenity,[363] which requires the court to adopt the less harsh interpretation of an ambiguous statute in favor of the noncitizen.[364]

 

(4)  Federal Felony; State Misdemeanor Label; Maximum Sentence of One Year or Less.   Under this permutation, the state treats as a “misdemeanor” what would be considered a “felony” if the defendant were prosecuted in federal court.  In the crime of violence context, this may be considered a misdemeanor for immigration purposes.  In the drug-trafficking aggravated felony context, however, the Supreme Court in Lopez followed the hypothetical federal felony rule.  See § 10.89, infra.

 

(5)  Federal Misdemeanor; State Felony Label; Maximum Sentence In Excess of One Year.  Under this permutation, the state treats as a “felony” what would be considered a “misdemeanor” if prosecuted in federal court.  For purposes of the aggravated felony crime of violence definition, such an offense might be considered a felony.  In the drug-trafficking aggravated felony context, however, the Supreme Court in Lopez followed the hypothetical federal felony rule.  See § 10.89, infra.

 

                (6)  Federal Misdemeanor; State Felony Label; Maximum Sentence of One Year or Less.  This situation, though rare, occurs where the state conviction uses a definition of “felony” that differs from the federal definition, and includes under the “felony” label offenses punishable by a year or less imprisonment.  Because of the general federal definition of “felony,”[365] a conviction under this permutation that otherwise falls within 18 U.S.C. § 16(b) should not be considered an aggravated felony crime of violence.  A simple possession conviction, however, will ordinarily not be considered an aggravated felony drug offense.  See § 10.89, infra.

 

(7)  Federal Misdemeanor; State Misdemeanor Label; Maximum Sentence in Excess of One Year.  This situation may arise, again, where the state law draws a different distinction between “felony” and “misdemeanor” than does the federal law.  In the context of a conviction that otherwise falls within 18 U.S.C. § 16(b), a conviction under this permutation arguably would constitute a “felony” for immigration (and sentencing) purposes since the federal definition of “felony”[366] has technically been met, even if the offense is labeled a misdemeanor.

 

In the drug context, this permutation cannot result in an aggravated felony.  See § 10.89, infra.

 

(8)  Federal Misdemeanor; State Misdemeanor Label; Maximum Sentence of One Year or Less.  Under these circumstances, the state considers the conviction to be a misdemeanor, and the conviction is also only a misdemeanor under the federal definition cited above.  Therefore, the only possible conclusion is that this conviction is a misdemeanor for immigration purposes. [367]

 

[356] United States v. Cordova-Arevalo, 456 F.3d 1229 (10th Cir. Aug. 8, 2006) (Colorado conviction for assault in the third degree, in violation of Colo.Rev.Stat. § 18-3-204, although labeled by the State as a misdemeanor, is a felony for illegal re-entry sentencing purposes since the maximum possible punishment for the offense is 18 months).

[357] See, e.g., Matter of Malta, 23 I. & N. Dec. 656 (BIA 2004), reversed, Malta-Espinoza v. Gonzales, 478 F.3d 1080 (9th Cir. March 2, 2007); Chery v. Ashcroft, 347 F.3d 404, (2d Cir. 2003); Omar v. INS, 298 F.3d 710, 717 (8th Cir. 2002).

[358] United States v. Cordova-Arevalo, 456 F.3d 1229 (10th Cir. Aug. 8, 2006) (Colorado conviction for assault in the third degree, in violation of Colo.Rev.Stat. § 18-3-204, although labeled by the State as a misdemeanor, is a felony for illegal re-entry sentencing purposes since the maximum possible punishment for the offense is 18 months).

[359]  Sandy Lin, What is a Felony for Purposes of the Crime of Violence Definition in 18 USC § 16(b), p. 2 (National Lawyers Guild National Immigration Project Memorandum (2004)), citing Matter of Ramos, 23 I. & N. Dec. 336 (BIA 2002) (holding offense was not a crime of violence because it did not involve substantial risk that physical force may be used not because of the classification of the offense).

[360] Francis v. Reno, 269 F.3d 162 (3d Cir. 2001).

[361] 18 U.S.C. § 3559(a)(5).

[362] Farncis v. Reno, supra at 196.

[363] See § 16.38, infra.

[364] Francis v. Reno, supra, at 170.  Sandy Lin, What is a Felony for Purposes of the Crime of Violence Definition in 18 USC § 16(b), p. 2 (National Lawyers Guild National Immigration Project Memorandum (2004), (citations omitted).

[365] 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”).

[366] 18 U.S.C. § 3559(a)(5).

[367] In Matter of Martin, 23 I. & N. Dec. 491 (BIA 2002), for example, the Board of Immigration Appeals held that the respondent’s conviction for an offense categorized as a misdemeanor under Connecticut and federal law could not constitute a crime of violence under 18 U.S.C. § 16(b), although the BIA did treat it as an aggravated felony under 16(a). Similarly, in Matter of Small, 23 I. & N. Dec. 448 (BIA 2002), the BIA noted that a New York misdemeanor conviction for sexual assault of a minor, which was punishable by imprisonment of one year or less, did not come within the definition of § 16(b) because § 16(b) covers only felony offenses.

Eighth Circuit

FEDERAL DEFINITION OF FELONY UNDER FEDERAL CRIMINAL SENTENCING STATUTE
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).