Criminal Defense of Immigrants

(B)  Aggravated Felonies.  There is some overlap between the DV ground of deportation and three of the aggravated felony categories: crimes of violence, rape, and sexual abuse of a minor.

                (1)  Crimes of Violence.  A domestic violence conviction that meets the definition of “crime of violence” in either subsection of 18 U.S.C. § 16 can also constitute an aggravated felony crime of violence, if a sentence of one year or more is imposed.  See § § 19.34, et seq., supra.[18]  A sentence imposed of 364 days or less will avoid this problem.  Note that a “crime of violence” under § 16 committed against property can qualify as an aggravated felony, but cannot qualify as a DV conviction because it is not a crime against a person.  See § 22.27, infra. 

                Several circuits have held the stalking statutes of several states did not constitute crime of violence aggravated felonies, although they might constitute deportable stalking convictions under the domestic violence deportation ground.  See § 22.29, infra. 

                (2)  Rape or Sexual Abuse of a Minor.  Some DV child abuse convictions could also trigger deportation as a sexual abuse of a minor aggravated felony offense, or a rape offense, regardless of the sentence imposed.  See § § 19.83 (Rape), 19.87, et seq. (Sexual Abuse of a Minor), 19.92 (statutory rape), supra.[19]

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

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