Criminal Defense of Immigrants

 

(B)  Sentence Imposed of One Year.  For many of the most common aggravated felonies, the sentence imposed is decisive.  These offenses constitute aggravated felonies if and only if a sentence of one year or more in custody is ordered by the court.  Therefore, for these offenses, the many defenses against a sentence imposed of one year or more constitute complete defenses to aggravated felony status.  See Chapter 10, infra.

 

                The following offenses, in alphabetical order, constitute aggravated felonies only if custody of one year or more was ordered by the sentencing court.[71]

 

·            accessory after the fact[72]

·            bribery of a witness[73]

·            burglary[74]

·            commercial bribery[75]

·            counterfeiting[76]

·            crimes of violence[77]

·            document fraud[78]

·            forgery[79]

·            obstruction of justice[80]

·            perjury[81]

·            receipt of stolen property[82]

·            subornation of perjury[83]

·            theft[84]

·            trafficking in vehicles with altered identification numbers[85]

 

The basic rule regarding these particular aggravated felony convictions — which require a one-year sentence before they will be considered aggravated felonies — is as follows:  If a noncitizen, who is convicted in state or federal court of one or more of the crimes on the “one-year” list, receives an original sentence imposed of less than one year, the conviction is a safe haven because it does not fall within the applicable aggravated felony definition.  Later vacating the one-year sentence imposed, or reducing it to a sentence of less than one year, however, will also eliminate these particular aggravated felony convictions.  See § § 10.34-10.36, infra.

[71] See INA § § 101(a)(43)(F), (G), (J), (R), (S).  8 U.S.C. § § 1101(a)(43)(F), (G), (J), (R), (S).

[72] This offense is considered an aggravated felony “obstruction of justice offense.”  Matter of Batista-Hernandez, 21 I. & N. Dec. 955 (BIA 1997); INA § 101(a)(43)(S), 8 U.S.C. § 1101(a)(43)(S).

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

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

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

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

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

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

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

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

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

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

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

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

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