Criminal Defense of Immigrants


§ 10.88 2. Immigration Consequences

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There are two categories in which a conviction must be a felony conviction before it can constitute an aggravated felony conviction:


(1)  A conviction must be a felony before it can constitute a “crime of violence” under 18 U.S.C. § 16(b), where the statute has no element requiring threat or use of force, but the offense is considered a “crime of violence” because there is a substantial risk that force will be used in the commission of the offense.  See § 19.42, infra.


                Therefore, a conviction that is originally a misdemeanor, infraction, or other lesser level of offense, or which is later reduced to an offense less than a felony, will be a safe haven with respect to this portion of the crime of violence aggravated felony definition. 


(2)  Whether a state conviction of first-offense simple possession of a controlled substance, or other drug offense that would be considered a misdemeanor under federal law will be considered an aggravated felony drug trafficking offense, will depend on whether the conviction would have been a felony if prosecuted in federal court.  See § 10.89, infra. 


                Immigration statutes provide that a noncitizen, who has been convicted of a felony, is ineligible for a number of immigration benefits, including the Legalization Program, the Special Agricultural Worker Legalization Program, the Family Unity Program, Asylum, Restriction on Removal (formerly Withholding of Deportation), and Temporary Protected Status.  See § 10.91, infra.  In these cases, reduction of a felony to a misdemeanor would remove this ground of ineligibility.[368]

[368] See LaFarga v. INS, 170 F.3d 1213 (9th Cir. 1999) (reduction from felony to misdemeanor reduced maximum to one year, so immigrant qualified for the petty offense exception); Garcia-Lopez v. Ashcroft, 334 F.3d 840 (9th Cir. June 26, 2003).