Criminal Defense of Immigrants

The statute includes as an aggravated felony “an offense described in § § 875, 876, 877, or 1202 of title 18, United States Code (relating to the demand for or receipt of ransom).”[826]  Since this definition specifically refers to several federal statutes, a state conviction must have identical elements to one of these federal statutes, or all the conduct encompassed by the minimum conduct required to violate the state statute must fall within the federal statute, for a state conviction to be considered an aggravated felony under this theory.

The offenses punished under the listed statutes include demands for money or property through kidnapping, extortion,[827] threats of violence to persons or property, threats to a person’s reputation, and threats to falsely accuse another of a crime.

                Note that in the illegal re-entry sentencing context, a “kidnapping” conviction can result in a 16-level increase, even if it is not an aggravated felony,[828] because kidnapping is specifically included in the sentencing guidelines definition of “crime of violence.”  In the sentencing context “kidnapping” is not defined by reference to federal statutes, and is therefore subject to a “generic definition” analysis.[829]  Therefore, the aggravated felony and sentencing definitions of “kidnapping” may not include all the same offenses.

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

[827] 18 U.S.C. § 1951 defines “extortion” as: “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under the color of official right.”

[828] U.S.S.G. § 2L1.2(b)(1)(A) (2006).

[829] United States v. Gonzalez-Ramirez, 477 F.3d 310 (5th Cir. Jan. 30, 2007) (Tennessee conviction for violation of Tenn. Code Ann. § 39-13-303 [“false imprisonment . . . (1) [u]nder circumstances exposing the other person to substantial risk of bodily injury; or (2) [w]here the confinement of another is in a condition of involuntary servitude] meets generic definition of “kidnapping,” [adopting model penal code definition] for purposes of the “crime of violence” definition used in enhancing a sentence upon illegal re-entry prosecution).  See § 19.9, supra.