Criminal Defense of Immigrants

 

(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.”).