AGGRAVATED FELONY - MISDEMEANOR - MISDEMEANOR SEXUAL ABUSE OF A MINOR CONVICTION CAN CONSTITUTE AGGRAVATED FELONY
United States v. Pallares-Galan, 359 F.3d 1088, 1102 n.7 (9th Cir.2004) (noting consistency of holding with decisions that "state misdemeanor convictions relating to child sexual matters constitute aggravated felonies of 'sexual abuse of a minor' under 1101(a)(43)(A).").
AGGRAVATED FELONY - MISDEMEANOR - CONVICTION OF STATUTORY RAPE CONSTITUTES SEXUAL ABUSE OF MINOR AGGRAVATED FELONY EVEN THOUGH IT WAS REDUCED TO A MISDEMEANOR - UNPUBLISHED DECISION
Valdez-Camacho v. Ashcroft, 110 Fed.Appx. 808, 2004 WL 2203948 (9th Cir. Sept. 29, 2004) (unpunblished) (conviction of statutory rape constitutes sexual abuse of minor aggravated felony even though it was reduced to a misdemeanor).
AGGRAVATED FELONY - MISDEMEANOR - QUALIFYING CONVICTION CONSTITUTES AGGRAVATED FELONY EVEN THOUGH IT WAS A MISDEMEANOR
United States v. Robles-Rodriguez, 281 F.3d 900, 902-03 (9th Cir.2002) ("'Aggravated felonies' are not necessarily a subset of felonies; for instance, an offense classified by state law as a misdemeanor can be an 'aggravated felony' ... if the offense otherwise conforms to the federal definition of 'aggravated felony' found in 8 U.S.C. 1101(a)(43).").
AGGRAVATED FELONY - MISDEMEANOR - NEVADA CONVICTION OF STATUTORY SEXUAL SEDUCTION CONSTITUTES AGGRAVATED FELONY DESPITE BEING A MISDEMEANOR PUNISHABLE BY NO MORE THAN ONE YEAR IN CUSTODY
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 reentry 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.
AGGRAVATED MISDEMEANORS The courts in their wisdom have held that minor misdemeanors may be aggravated felonies: Erewele v. Reno, 2000 U.S. Dist. LEXIS 11765 (N.D. Ill. 2000) (Misdemeanor shoplifting with one year suspended sentence).
Jaafar v. INS, 77 F.Supp.2d 360 (W.D.N.Y. 1999) (Misdemeanor NY petty larceny).
United States v. Christopher, 239 F.3d 1191 (11th Cir. 2001) (Misdemeanor GA theft by shoplifting, with 12 months suspended sentence).
United States v. Graham, 169 F.3d 787 (3rd Cir. 1999) (Misdemeanor NY petty larceny).
United States v. Graham, 927 F.Supp. 619 (W.D.N.Y. 1996) (Misdemeanor NY criminal sale of marijuana).
United States v. Holguin-Enriquez, 120 F.Supp.2d 969 (D.Kan. 2000) (Misdemeanor WA assault with 365 day suspended sentence).
AGGRAVATED FELONY - DRUG TRAFFICKING
Cazarez-Gutierrez v Ashcroft, 356 F.3d 1015 (9th Cir. 2004), decision withdrawn presumably on jurisdictional grounds (9th Cir. April 26, 2004). In Cazarez-Gutierrez, the Ninth Circuit held that a state felony simple possession conviction was not an aggravated felony in immigration proceedings, unless it was a conviction of possession of flunitrazepam (a date-rape drug) or more than five grams of crack cocaine, which are aggravated felony convictions under federal law.
MARIJUANA DISTRIBUTION - MISDEMEANOR FEDERAL OFFENSE
Wilson v. Ashcroft, 350 F.3d 377 (3d Cir. November 26, 2003) (21 U.S.C. 841(b)(4) exception to felony treatment for individuals convicted of distribution of small amount of marijuana without remuneration does not "literally convert gratuitous distribution of marijuana into simple possession as the term is used in INA section 1182(h). Rather, subsection (b)(4) says that such small time distributors shall be "treated as provided" in section 844.")
DEFINITION OF CONVICTION
Commonwealth v. Rodriguez, 802 N.E.2d 1039 (Mass. Feb. 10, 2004) (Supreme Court of Massachusetts suggests in dictum that Massachusetts pretrial probation would not be a "conviction" for immigration purposes since in granting the pretrial probation, "[g]uilt was not established in any fashion in this case.").
AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - INDECENT SOLICITATION OF A CHILD
Hernandez-Alvarez v. Gonzales, ___ F.3d ___, 2005 WL 3534204 (7th Cir. Dec. 28, 2005) (Illinois conviction of indecent solicitation of a child, in violation of 720 ILCS 5/11-6(a)(2000), constituted sexual abuse of a minor aggravated felony, under INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A), for deportation purposes even though the person solicited was an adult police officer rather than a minor), following Gattem v. Gonzales, 412 F.3d 758 (7th Cir. 2005).
POST-CONVICTION RELIEF - JUDICIAL RECOMMENDATION AGAINST DEPORTATION - RETROACTIVITY
The 1990 abolition of the Judicial Recommendation Against Probation should not be construed to invalidate JRADs issued prior to November 29, 1990, the effective date of the legislation. See Kankamalage v. INS, 335 F.3d 858 (9th Cir. July 8, 2003) (1990 regulation, making certain aliens categorically ineligible for a discretionary grant of asylum, cannot be applied retroactively to exclude petitioner for consideration for asylum based on his 1988 robbery conviction). http://caselaw.lp.findlaw.com/data2/circs/9th/0271415p.pdf
