(B)  Immigration Consequences of Misdemeanor.  A misdemeanor conviction has a number of different immigration consequences. 

 

(1)  Aggravated Misdemeanors.[380]  It has become well established that, in general, a conviction need not be a felony conviction to fall within the aggravated felony definitions.[381]  All circuits to consider this issue agree.[382]  The two exceptions are the portion of the crime of violence definition contained in 18 U.S.C. § 16(b), see § 10.90, supra, and the drug trafficking aggravated felony definition.  See § 10.89, supra.  In Matter of Crammond,[383] the BIA had originally held that a conviction for “sexual abuse of a minor” must be defined as a felony offense in the jurisdiction of conviction in order for the crime to be considered an aggravated felony.[384]  However, once it learned that the petitioner had departed the country during the pendency of the appeal, the Board reconsidered and vacated its ruling for lack of jurisdiction.[385]  The BIA then reversed itself, holding that a misdemeanor conviction could constitute an aggravated felony as a sexual abuse of a minor offense.[386] The majority of the circuits agrees that a state misdemeanor conviction of sexual abuse of a minor constitutes an aggravated felony.[387]

 

A misdemeanor conviction, therefore, is not a safe plea by which to avoid the sexual abuse of a minor aggravated felony ground and should not be relied upon, even in circuits that have not yet addressed the question.

 

                (2)  Ordinary Meaning Argument.  The ordinary meaning of “aggravated felony,” however, obviously does not include misdemeanor convictions.  The Supreme Court has adopted an ordinary meaning approach to deciding whether a conviction falls within the aggravated felony definition.[388]  This argument could be raised to argue against including convictions labeled by the jurisdiction of conviction as misdemeanors within the aggravated felony definition, and has fresh energy in light of Supreme Court’s repeated emphasis on ordinary meaning interpretations of the aggravated felony definition.

 

There is a general plain-meaning argument, however, that if the conviction is not a felony, the offense should not be held to be an aggravated felony.              In both Leocal and Lopez, the Supreme Court took a common-sense “ordinary meaning” approach to defining two different categories of aggravated felony.[389]  This is refreshing, since the lower courts’ interpretations of this statute have often been arcane and counter-intuitive.  A larger question is also susceptible to this analysis: whether Congress actually intended to include misdemeanors within the definition of “aggravated felony.” Federal[390] and immigration courts[391] have held a conviction need not be a felony conviction to fall within the definition of “aggravated felony.”  But in attaching the harshest of all adverse immigration consequences to the concept of “aggravated felony,” is it really likely that Congress in fact intended to include within the aggravated felony concept, not only aggravated felonies, but also garden-variety felonies, relatively minor felonies, and even misdemeanor convictions?  In light of the fact that on December 6, 2006, Justice Breyer issued a stay of deportation in a case raising the question whether a misdemeanor Colorado assault conviction can constitute an aggravated felony, the Supreme Court may grant certiorari on this question in the relatively near future.[392] A plain-language approach to this question might again set the lower courts’ legalistic parsing of the plain meaning of the statute straight.  However, beginning with United States v. Graham,[393] many courts have held or suggested, sometimes reluctantly, that the classification of an offense as a misdemeanor under state law does not automatically exclude it from the category of “aggravated felony” where it otherwise meets the statutory definition.  The courts felt bound by the statutory provisions defining as aggravated felonies certain offenses where a one-year sentence is imposed, e.g., theft with a term of imprisonment of one year. 

 

                (3)  Disqualification from Relief.  A noncitizen is disqualified from eligibility for a number of different forms of immigration relief if s/he has two or three misdemeanor convictions, including:

 

                (1)  Amnesty (the two Legalization Programs), see § § 24.9-24.11, infra;

 

                (2)  the Family Unity Program, see § 24.8, infra;

 

                (3)  Political Asylum, see § § 24.18, et. seq., infra;

 

(4)  Restriction on Removal (formerly Withholding of Deportation), see § 24.31, infra; and

 

                (5)  Temporary Protected Status (TPS).  See § 24.25, infra.

[380] J. Rollin, Humpty Dumpty Logic: Arguing Against the “Aggravated Misdemeanor” in Immigration Law, 6 Bender’s Immigr. Bull. 443, 445 (May 15, 2001).

[381] Matter of Martin, 23 I. & N. Dec. 491 (BIA 2002); Matter of Small, 23 I. & N. Dec. 448 (BIA 2002).

[382] United States v. Pacheco, 225 F.3d 148 (2d Cir. 2000) (Rhode Island conviction of misdemeanor theft of a small video game valued at approximately $10, for which the individual received a one year suspended sentence); United States v. Graham, 169 F.3d 787 (3d Cir. 1999) (misdemeanor New York petty larceny); Wireko v. Reno, 211 F.3d 833 (4th Cir. 2000) (misdemeanor sexual battery, with 12-month suspended sentence, held crime of violence and therefore aggravated felony); United States v. Urias-Escobar, 281 F.3d 165, 167-168 (5th Cir. 2002), cert. denied, 122 S.Ct. 2377 (2002); United States v. Gonzales-Vela, 276 F.3d 763, 766-68 (6th Cir. 2001); Guerrero-Perez v. INS, 242 F.3d 727, 730-37 (7th Cir.), reh’g denied, 256 F.3d 546 (7th Cir. 2001); United States v. Alvarez-Gutierrez, 394 F.3d 1241 (9th Cir. Jan. 14, 2005) (Nevada conviction for statutory sexual seduction, for having had sexual intercourse with a 14-year-old girl, in violation of Nev.Rev.Stat. § § 200.364, 368 (2002), constituted a sexual abuse of a minor aggravated felony under INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A) (2003), for purposes of imposing an eight-level illegal re-entry sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(C) (2003), even though it was a gross misdemeanor punishable by a sentence of up to one year, Nev.Rev.Stat. § 193.140 (2002)) (see lengthy and well-reasoned dissent by Judge Berzon); United States v. Gonzalez-Tamiriz, 310 F.3d 1168 (9th Cir. 2003); United States v. Saenz-Mendoza, 287 F.3d 1011, 1014 (10th Cir. 2002), cert. denied, 123 S.Ct. 315 (2002) (Utah conviction of child abuse, cruelty toward child, qualified as an crime of violence “aggravated felony” as defined by 8 U.S.C. 1101(a)(43)(F), for purpose of enhancement under U.S.S.G. § 2L1.2, of illegal re-entry sentence, even though Utah classified it as a misdemeanor); United States v. Marin-Navarette, 244 F.3d 1284, 128687 (11th Cir. 2001); United States v. Christopher, 239 F.3d 1191 (11th Cir. 2001) (misdemeanor Georgia theft by shoplifting, with 12 months suspended sentence).

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

[384] INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A) (Supp. V 1999).

[385] Matter of Crammond, supra.

[386] Matter of Small, 23 I. & N. Dec. 448 (BIA 2002) (en banc) (misdemeanor conviction of sexual abuse of a minor, in violation of New York Penal Law § 130.60(2), with a sentence of one year in custody, constitutes an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F)).

[387] United States v. Marin-Navarette, 244 F.3d 1284 (11th Cir. 2001) (attempted third degree child molestation); Guerrero-Perez v. INS, 256 F.3d 546 (7th Cir.  2001) (Illinois Class A misdemeanor conviction for criminal sexual abuse); United States v. Gonzales-Vela, 276 F.3d 763 (6th Cir. 2001) (misdemeanor second degree sexual abuse). 

[388] See Leocal v. Ashcroft, 543 U.S. 1 (2004) (Supreme Court uses “ordinary meaning” approach to conclude that accidental injury does not fall within ordinary meaning of “crime of violence” aggravated felony definition: “In construing both parts of § 16, we cannot forget that we ultimately are determining the meaning of the term ‘crime of violence.’ The ordinary meaning of this term, combined with § 16’s emphasis on the use of physical force against another person (or the risk of having to use such force in committing a crime), suggests a category of violent, active crimes that cannot be said naturally to include DUI offenses.”); Lopez v. Gonzales, 549 U.S. ___, 127 S.Ct. 625 (Dec. 5, 2006) (drug trafficking aggravated felony definition plain meaning generally excludes simple possession cases for lack of a trafficking element).

[389] Leocal v. Ashcroft, 543 U.S. 1, 9, 11 (Nov. 9, 2004); Lopez v. Gonzales, 549 U.S. ___,  ___ n.6, 127 S.Ct. 625  (Dec. 5, 2006)(expressing preference for using ordinary meaning of statutory language absent a clear statutory command to override it).

[390] United States v. Pacheco, 225 F.3d 148 (2d Cir. 2000); Wireko v. Reno, 211 F.3d 833 (4th Cir. 2000); United States v. Urias-Escobar, 281 F.3d 165, 167-168 (5th Cir. 2002), cert. denied, 122 S.Ct. 2377 (2002); United States v. Gonzales-Vela, 276 F.3d 763, 766-68 (6th Cir. 2001); Guerrero-Perez v. INS, 242 F.3d 727, 730-37 (7th Cir.), reh’g denied, 256 F.3d 546 (7th Cir. 2001); United States v. Alvarez-Gutierrez, 394 F.3d 1241 (9th Cir. Jan. 14, 2005); United States v. Saenz-Mendoza, 287 F.3d 1011, 1014 (10th Cir. 2002), cert. denied, 123 S.Ct. 315 (2002); United States v. Marin-Navarette, 244 F.3d 1284, 128687 (11th Cir. 2001); United States v. Christopher, 239 F.3d 1191 (11th Cir. 2001).

[391] Matter of Martin, 23 I. & N. Dec. 491 (BIA 2002); Matter of Small, 23 I. & N. Dec. 448 (BIA 2002).

[392] Rashid v. Gonzales, No. 06A557 (Dec. 6, 2006), at http://www.supremecourtus.gov/docket/06a557.htm, staying Rashid v. Gonzales, 2006 U.S. App. LEXIS 20044 (10th Cir. Aug. 3, 2006).

[393] United States v. Graham, 169 F.3d 787 (3d Cir. 1999) (misdemeanor NY petty larceny).

Other

SAFE HAVENS " FEDERAL " MISDEMEANORS " OFFENSES WITH ONE YEAR MAXIMUM Finding and Creating Federal Misdemeanors with One-Year Maximum Sentences
The federal accessory-after-the-fact statute, 18 U.S.C. 3, can be a tool for creating misdemeanors. Any federal offense with a two-year maximum can be reduced to a misdemeanor (with a one-year maximum) by pleading to accessory after the fact to that offense. This is useful where it is important to have a misdemeanor conviction, rather than a felony. E.g., aggravated felony crimes of violence under 18 U.S.C. 16(b); TPS felony disqualification. It is also useful to reduce a two-year maximum to a one-year maximum, to qualify for the Petty Offense Exception to CMT inadmissibility. See LaFarga v. INS, 170 F.3d 1213 (9th Cir. 1999). Counsel can do a database search of the entire United States Code and of the Code of Federal Regulations for phrases like "not more than two years" and "not more than 2 years." Two-year offenses are rare, but it would be nice to add them to the stock of offenses which we can use in negotiating misdemeanor pleas. For valuable lists of federal misdemeanors, see http://ocdw.com/pdf/102907/Federal%20Misdemeanors.pdf; http://nycrimbar.org/Members/briefs/Misdemeanors.pdf Thanks to Joe Beeler.