Criminal Defense of Immigrants
§ 10.90 b. Aggravated Felony Crimes of Violence Under 18 U.S.C. 16(b)
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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).
