(A)  Requirement of a Felony Conviction.   There are only two situations in which an offense must be a felony to qualify as an aggravated felony.  First, where the conviction falls within the crime of violence definition contained in 18 U.S.C. § 16(b), but not 18 U.S.C. § 16(a).[61]  Second, where the conviction otherwise falls within the drug trafficking aggravated felony definition.  See § 19.57, infra.

 

In most cases, a conviction need not be a felony conviction to fall within the aggravated felony definitions.[62]  All circuits to consider this issue agree.[63] 

If the conviction is not a felony, arguably the offense should not be held an aggravated felony.  However, beginning with United States v. Graham, 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. [64]  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. 

 

                In Matter of Crammond,[65] 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.[66]  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.[67]

 

The BIA then reversed itself, holding that a misdemeanor conviction could constitute an aggravated felony as a sexual abuse of a minor.[68] The majority of the circuits agrees that a state misdemeanor conviction of sexual abuse of a minor constitutes an aggravated felony.[69]

 

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.

 

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 an aggravated felony definition.[70]  This argument could be raised to argue against including convictions labeled as misdemeanors by the jurisdiction of conviction within the aggravated felony definition.

[61] See § 19.42, infra.

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

[63] 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) (New York misdemeanor conviction of 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. 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 INA § 101(a)(43)(F), 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 conviction of theft by shoplifting, with 12 months suspended sentence).

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

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

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

[67] Matter of Crammond, supra.

[68] 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)).

[69] 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). 

[70] See Leocal v. Ashcroft, 543 U.S. 1, 160 L. Ed. 2d 271, 125 S.Ct. 377 (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.”).

AGGRAVATED FELONIES - AGGRAVATED MISDEMEANOR
Carachuri-Rosendo v. Holder, 130 S.Ct 2577 (Jun. 14, 2010) ("We do not usually think of a 10-day sentence for the unauthorized possession of a trivial amount of a prescription drug as an "aggravated felony." A "felony," we have come to understand, is a "serious crime usu[ally] punishable by imprisonment for more than one year or by death." Black's Law Dictionary 694 (9th ed.2009) (hereinafter Black's). An "aggravated" offense is one "made worse or more serious by circumstances such as violence, the presence of a deadly weapon, or the intent to commit another crime.").

AGGRAVATED FELONY - SENTENCE
CD4:20.31;CMT3:4.7 INADMISSIBILITY - CRIME OF MORAL TURPITUDE - PETTY OFFENSE EXCEPTION United States v. Rodriquez, 553 U.S. ___ (May 19, 2008) (for purposes of considering whether a state drug-trafficking offense, for which a ten-year recidivism-based sentence was imposed, qualifies as a predicate offense under the Armed Career Criminal Act, 18 U.S.C. 924(e)), the federal sentencing court must consider the recidivist sentence enhancement in determining the sentence imposed), disagreeing with United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en banc) (petty theft conviction could not qualify as an aggravated felony because the maximum possible sentence for a violation without statutory recidivist enhancements was six months).

Second Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - 18 U.S.C. 16(b) - FELONY -- MASSACHUSETTS MISDEMEANOR CONVICTION OF ASSAULT ON OFFICER CONSTITUTED FELONY UNDER FEDERAL DEFINITION OF FELONY SINCE MAXIMUM TERM OF IMPRISONMENT EXCEEDED ONE YEAR
Blake v. Gonzales, ___ F.3d ___, ___, 2007 WL 914865 (2d Cir. March 28, 2007) (Massachusetts conviction of assault on police officer, under Massachusetts General Laws chapter 265, section 13D, with suspended two-year sentence to imprisonment, constituted felony for purposes of being a crime of violence aggravated felony, as defined under 18 U.S.C. 16(b), since the court applied the federal definition of felony, 18 U.S.C. 3559(a), and the maximum term of imprisonment for the offense of conviction was in excess of one year: "Regardless of how Massachusetts law defines it, we are obligated to apply the federal-law definition of a felony. Cf. United States v. Campbell, 167 F.3d 94, 97 (2d Cir.1999) (observing that "[t]he immigration laws contain no provision ... indicat[ing] that they are to be interpreted in accordance with state law," and holding that whether a person has been convicted of an aggravated felony within the language of 8 U.S.C. 1326(b)(2) "is necessarily ... a question of federal, not state, law, despite the fact that the predicate offense and its punishment are defined by the law of the State" (internal quotation marks omitted)).").

Third Circuit

AGGRAVATED FELONY " SENTENCE
Chavez-Alvarez v. Attorney General, 783 F.3d 478, 484 (3rd Cir. Apr. 16, 2015) (government failed to show noncitizens sentence for violation of Uniform Code of Military Justice Article 125, 10 U.S.C. 925 (sodomy), was for at least one year to qualify as an aggravated felony crime of violence; noncitizen was sentenced to 18 months jail total following conviction of several offenses, but the record did not specify a sentence of more than one year specifically for the sodomy offense; The record is devoid of any indication as to how or if the military judge apportioned the general sentence among Chavez"Alvarez's various convictions. Nor does the Manual for Courts"Martial contain any suggestion that a military judge should do so.),

AGGRAVATED FELONY - ALIEN SMUGGLING - MISDEMEANOR
Biskupski v. Attorney Gen. of the US, __ F.3d __, 2007 WL 2774528 (3d Cir. Sept. 25, 2007) (federal misdemeanor conviction of violating 8 U.S.C. 1324(a)(2)(A), aiding and abetting alien smuggling, is an "aggravated felony" even though only punishable as a misdemeanor under federal law).

Fifth Circuit

AGGRAVATED FELONY " SENTENCE IMPOSED
United States v. Narez-Garcia, ___ F.3d ___, 2016 WL 1274034 (5th Cir. March 31, 2016) (Arkansas conviction of third-degree domestic battery, with a sentence to confinement of ___ months and Suspended Imposition of Sentence: 72 months, did not warrant reversal as the basis for imposing an 8-level enhancement in the federal sentence for illegal reentry after deportation, since the defendant did not sufficiently raise the insufficient sentence argument in the trial court, and the significance of the suspended imposition of sentence in Arkansas law, was not sufficiently clear). NOTE: While the noncitizen in this case was limited in his ability to argue the point because he had failed to raise it earlier, the dissenting opinion lays out a good argument on the difference between directly suspending a sentence, versus imposing and then suspending a sentence. Apparently there is room to argue that there is a distinction between these two judicial acts that may mean that a straight suspended sentence is more similar to execution of sentence suspended under California law, which does not count as a sentence for immigration purposes.

Sixth Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - SENTENCE - SENTENCE IMPOSED IS THE SENTENCE ACTUALLY SERVED, OR THE MINIMUM SENTENCE GIVEN, WHICHEVER IS GREATER, RATHER THAN THE MAXIMUM PERIOD UNDER AN INDETERMINATE SENTENCE
Shaya v. Holder, 586 F.3d 401 (6th Cir. Nov. 9, 2009) ("for the purposes of Section 1101(a)(43)(F), indeterminate prison sentences in Michigan must be measured by the term actually . . . served or the minimum sentence given, whichever is greater, as this better incorporates the judge's discretion and determinations than the statutory maximum term."; "Because the maximum term of a Michigan sentence will always be the maximum statutory term, measuring a Michigan sentence by its maximum term would thwart Congress's intent to measure some aggravated felonies by the statutory maximum and others, like crimes of violence, by the sentence actually imposed.").

NOTE: The reasoning of this decision was based upon the particularities of Michigan indeterminate sentencing, and may or may not be applicable to other states, even within the Sixth Circuit.

Ninth Circuit

AGGRAVATED FELONY " SENTENCE IMPOSED " ONE YEAR IS DEFINED AS 365 DAYS, REGARDLESS OF LEAP YEARS
Habibi v. Holder, 658 F.3d 977 (9th Cir. Sept. 14, 2011) (the phrase "one year" is defined as 365 days, regardless of leap years; noncitizen was deportable for aggravated felony, under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), even though his sentence was served during a leap year).

Eleventh Circuit

AGGRAVATED FELONY - SENTENCE.JUDICIAL REVIEW - RES JUDICATA
Singh v. US Attorney Gen., __ F.3d __ (11th Cir. Dec. 31, 2008) (respondent was initially convicted of robbery and sentenced to less than 365 days, he was charged with deportability based on two crimes of moral turpitude, but was granted cancellation of removal, respondent then violated probation and was sentenced to 6 years imprisonment, the DHS brought new proceedings charging the same robbery conviction was an aggravated felon; this was not barred by res judicata, because the probation violation made the offense an aggravated felony, and cancellation of removal only works to avoid being removed on the basis of the current charges, but not any subsequent proceeding).