A conviction must be a “felony” before it can constitute a “crime of violence” under 18 U.S.C. § 16(b), so as to fall within the crime of violence aggravated felony definition.[372]  Whether “felony” is defined by the state label, or by the maximum possible custody sentence as assessed under the federal “in excess of one year” standard, is an open question in the Ninth Circuit.[373]  A detailed discussion of this issue is found at § 10.87(B), supra.

[372] INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F).  See N. Tooby & J. Rollin, Aggravated Felonies § 5.24 (2006).

[373] Ortega-Mendez v. Gonzales, 450  F.3d 1010 (9th Cir. Jun. 15, 2006) (Ninth Circuit leaves as an open question whether the term “felony” for purposes of 18 U.S.C. § 16(b) is defined by state label or term of imprisonment exceeding one year); see Francis v. Reno, 269 F.3d 162, 166-71 (3d Cir. 2001); Doe v. Hartz, 134 F.3d 1339, 1342-43 (8th Cir. 1998).

Sixth Circuit

ADMISSION - ADJUSTMENT OF STATUS DOES NOT BEGIN A NEW FIVE-YEAR PERIOD
Zhang v. Mukasey, 509 F.3d 313 (6th Cir. Nov. 29, 2007) (adjustment of status does not constitute an "admission" for purposes of starting the five-year period within which a CMT must be committed to trigger deportation under INA 237(a)(2)(A)(i), 8 U.S.C. 1227(a) (2)(A)(i)), agreeing with Shivaraman v. Ashcroft, 360 F.3d 1142, 1146 (9th Cir. 2004); Abdelqadar v. Gonzales, 413 F.3d 668, 673 (7th Cir. 2005); Aremu v. Dep't of Homeland Sec., 450 F.3d 578, 581 (4th Cir. 2006), vacating Matter of Shanu, 23 I. & N. Dec. 754 (BIA 2005), disagreeing with Matter of Shanu, 23 I. & N. Dec. 754 (BIA 2005).

Eighth Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - FELONY - CHARGING PAPER IS NOT DISPOSITIVE AS TO WHETHER CALIFORNIA WOBBLER, ALSO KNOWN AS ALTERNATIVE FELONY-MISDEMEANOR, IS A FELONY, SINCE THE COURT AT SENTENCE MAY REDUCE IT TO A MISDEMEANOR FOR ALL PURPOSES
United States v. Viezcas-Soto, 562 F.3d 903 (8th Cir. Apr. 10, 2009) (in California, the information filed as a felony is not dispositive of the felony-misdemeanor inquiry - i.e. whether the maximum punishment is in excess of one year; a California "wobbler" becomes a felony or misdemeanor only after the court enters judgment imposing a punishment), citing Cal.Penal Code 17(b)(1); see United States v. Brown, 33 F.3d 1014, 1018 (8th Cir.1994); United States v. Gomez-Hernandez, 300 F.3d 974, 978 (8th Cir.2002); United States v. Robinson, 967 F.2d 287, 293 (9th Cir.1992)).