(B)  No Single Rule.  There are approximately 35 separate categories of crime that may trigger deportation as an aggravated felony.[6]  See Appendix B (aggravated felony quick checklist), infra.  Because there are so many categories, there is no single rule criminal defense counsel can use to avoid an aggravated felony conviction (except to avoid a conviction entirely).  Therefore, counsel must remember that:

               

·         A misdemeanor can be an “aggravated felony.”[7]  See § 19.10(A), infra.

·         A sentence of 364 days or less only works to avoid some aggravated felony categories, such as theft and crimes of violence, but not others. See § § 19.10, infra.

·         A few aggravated felonies (RICO, Gambling, Failure to Appear) depend upon a maximum potential sentence.[8]

·         Aggravated felony fraud and tax evasion require a showing of monetary loss to the victim in excess of $10,000.[9]

·         Some aggravated felony categories do not depend upon a felony/misdemeanor distinction, sentence, or loss to the victim.

·         While some aggravated felonies are defined by reference to federal statutes, others are defined by judicial decisions.[10]

 

Counsel must therefore carefully examine each potential conviction to determine whether the charged offense will fall within one or more aggravated felony categories.  See § § 19.23-19.95, infra, for a discussion of each of the aggravated felony categories.

 

                The most comprehensive discussion of the elements of each aggravated felony category is contained in N. Tooby, J. Rollin, Aggravated Felonies (2006), which includes two appendices (updated online) listing all known cases determining whether a particular conviction falls within a particular Aggravated Felony category.[11] 

[6] INA § 101(a)(43), 8 U.S.C. § 1101(a)(43).

[7] With only two exceptions. See § § 10.66, supra,19.10, infra.

[8] See § § 10.78, supra, 19.10, infra.

[9] See § § 19.10, infra, 19.74, supra.

[10] See § § 19.7-19.9, infra.

[11] See N. Tooby & J. Rollin, Aggravated Felonies, Appendices A, B (2006).

Other

AGGRAVATED FELONY"LEGISLATIVE ALERT"THIRD DRUG DRIVING PROPOSED AS AGGRAVATED FELONY
There is a bill now pending in Congress, S.1925, "To Reauthorize the Violence Against Women Act of 1994", which primarily deals with that topic, but also seeks to create authority for Indian tribal courts to prosecute non-Indians for domestic violence, and then sneaks in the following: "Section 1008. REMOVAL OF DRUNK DRIVERS (a) In General: Section 101(a)(43)(F) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(43)(F) is amended by striking "for which the term of imprisonment" and inserting "including a third drunk driving conviction, regardless of the States in which the convictions occurred or whether the offenses are classified as misdemeanors or felonies under State or Federal law, for which the term of imprisonment is" and then another provision making that effective immediately on the date of the amendment. Thus anyone who got a third misdemeanor DWI, with one year imprisonment suspended, would have an aggravated felony, notwithstanding Leocal. This bill was reported out of the Senate Judiciary committee on February 7, 2012. Thanks to Tova Indritz.