Criminal Defense of Immigrants

(B)  Definition of Felony.  The Board of Immigration Appeals held, in Matter of Crammond,[118] that a conviction for “murder, rape, or sexual abuse of a minor” must be a felony offense to be considered an aggravated felony under INA § 101(a)(43)(A).[119]  Under Crammond, the BIA applied the federal definition of a felony.[120]  Under that definition, a “felony” is an offense for which the maximum term of imprisonment is “more than one year.”[121]  Even though Crammond itself has been reversed,[122] its reasoning will very likely continue to be used to determine what is a misdemeanor, and what is a felony, under immigration law.  Moreover, the U.S. Sentencing Guidelines define “felony” to include “any federal, state or local offense punishable by imprisonment for a term exceeding one year.”[123]  Therefore a misdemeanor with a possible maximum term of imprisonment of one year does not constitute a felony, for immigration purposes, even if a sentence of one year is imposed.  See also § 7.14, supra.

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

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

[120]  18 U.S.C. § 3559(a)(5). 

[121] 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”).

[122] Matter of Small, 23 I. & N. Dec. 448 (BIA 2002) (en banc).

[123] U.S.S.G. § 2L1.2, Application Note 1.