Criminal Defense of Immigrants


§ 19.7 C. Reference to Federal Law or Generic Definition

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All offenses delineated under the aggravated felony definition are either defined by reference to a federal criminal statute or by a “generic offense” definition.  It is relatively easy, when looking to an aggravated felony offense defined by reference to federal law,[18] to make a comparison between the elements of the federal statute and the state statute of conviction.[19]  See § 19.8, infra.  In some cases, such as burglary, in which the aggravated felony definition does not identify a federal statute,[20] the “generic” definition has been clearly defined by case law.[21]  Therefore the state conviction need only be compared to the “generic” offense.  However, for some sections of the aggravated felony definition, there may not yet be any case law that defines the “generic” offense.  See § 19.9, infra.

[18] INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) (crime of violence as defined in 18 U.S.C. § 16, for which a sentence of at least one year is imposed).

[19] Of course, when the conviction was obtained in federal court, no comparison is necessary.

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

[21] Taylor v. United States, 495 U.S. 575 (1990).