The Immigration Act of 1990 [108] added a provision to the aggravated felony definition to include foreign convictions “for which the term of imprisonment was completed within the previous 15 years.”[109]  The running of the 15 years does not stop for any reason.[110]  Therefore, this period continues to run, so when the date on which the noncitizen was released from custody on the foreign conviction reaches a point 15 years ago, the conviction instantly ceases to be an aggravated felony. 

 

                If no custody was imposed as a result of the conviction, the conviction cannot be considered an aggravated felony at all, because there was no “term of imprisonment” imposed, so no term was completed within the previous 15 years.  Decisions construing the concept of “release from custody” for purposes of the mandatory detention provision may be analogous.[111]  This mandatory detention provision applies upon release from physical custody,[112] and may have some bearing on this issue.

 

There are some limitations upon the recognition of foreign convictions for immigration purposes.  See § 7.25, supra.  There may be arguments that foreign convictions are not included in some other grounds of deportation or inadmissibility,[113] see § 7.25, supra, but they are specifically listed in the aggravated felony definition, and therefore qualifying foreign convictions constitute aggravated felonies.

[108] Immigration Act of 1990, Pub. L. 101-649, 104 Stat. 4978  (Nov. 29, 1990).

[109] INA § 101(a)(43), 8 U.S.C. § 1101(a)(43) (second to last sentence).

[110] Compare INA § 240A(d)(1), 8 U.S.C. § 1229b(d)(1) (stopping the clock on seven-year presence requirement for cancellation for LPRs upon service of a notice to appear or commission of a listed criminal offense).

[111] INA § 236(c)(1), 8 U.S.C. 1226(c)(1) (“The Attorney General shall take into custody any [specified] alien . . . when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation . . . .”).

[112] Matter of West, 22 I. & N. Dec. 1405 (BIA 2000). 

[113] See Small v. United States, 544 U.S. 385 (Apr. 26, 2005) (18 U.S.C. § 922(g)(1), which prohibits a person who has been “convicted in any court” from possessing a firearm, encompasses only domestic, not foreign, convictions), abrogating United States v. Atkins, 872 F.2d 94, 96 (4th Cir. 1989), and United States v. Winson, 793 F.2d 754, 757-759 (6th Cir. 1986).

First Circuit

AGGRAVATED FELONIES " FOREIGN CONVICTIONS " FEDERAL AND STATE CONVICTIONS " 15-YEAR EXCLUSION APPLIES ONLY TO FOREIGN CONVICTIONS
Levesque v. Lynch, 802 F.3d 152, 154 (1st Cir. Sept. 18, 2015) (only foreign convictions for which the term of imprisonment was completed after the previous 15 years are excluded from the aggravated felony definition; the exclusion does not apply to federal and state convictions).

Seventh Circuit

AGGRAVATED FELONY - FOREIGN CONVICTIONS
Canto v. Holder, 593 F.3d 638 (7th Cir. Jan. 28, 2010) (rejecting equal protection argument that the differing treatment of foreign and domestic aggravated felony convictions violates equal protection).

Eleventh Circuit

FOREIGN CONVICTIONS - AGGRAVATED FELONY - SENTENCE ENHANCEMENT - ONLY FOREIGN CONVICTIONS, NOT DOMESTIC CONVICTIONS, CEASE TO BE AGGRAVATED FELONIES AFTER 15 YEARS FROM RELEASE FROM CONFINEMENT
United States v. Maturin, 499 F.3d 1243 (11th Cir. Sept. 11, 2007) (federal conviction and sentence based on guilty plea to illegally reentering the U.S. after having previously been deported is affirmed over claim that defendant is not subject to a 17-month sentence enhancement as the term of imprisonment for his offense ended more than 15 years before his reentry, as that aggravated felony requirement applies only to foreign convictions).