Aggravated Felony as "Crime of Violence" (if term of imprisonment imposed is 1 year or more)

This crime could be considered an Aggravated Felony - 'Crime of Violence' if the term of imprisonment imposed is one year or more.

As defined in the Immigration and Nationality Act [See INA 101(a)(43), 8 U.S.C. 1101(a)(43)], an aggravated felony includes a conviction of any of the offenses listed below:

• Murder, rape, or sexual abuse of a minor

• Illicit trafficking in a controlled substance

• Illicit trafficking in firearms or destructive devices, or in explosive materials

• Certain offenses relating to laundering of monetary instruments or engaging in monetary transactions in property derived from specific unlawful activity IF THE AMOUNT OF THE FUNDS EXCEEDED $10,000

• Certain explosive materials and firearms offenses

• Crime of violence FOR WHICH THE TERM OF IMPRISONMENT IS AT LEAST ONE YEAR

• Theft offense (including receipt of stolen property) or burglary offense FOR WHICH THE TERM OF IMPRISONMENT IS AT LEAST ONE YEAR

• Certain offenses relating to the demand for or receipt of ransom

• Certain offenses relating to child pornography

• Certain offenses relating to racketeer influenced corrupt organizations, or certain gambling offenses

• Offense relating to the owning, controlling, managing, or supervising of a prostitution business; or certain offenses relating to transportation for the purpose of prostitution; or certain offenses relating to peonage, slavery, and involuntary servitude

• Certain offenses relating to gathering or transmitting national defense information, disclosure of classified information, sabotage, or treason; or certain offenses relating to protecting the identity of undercover agents

• Offense that involves fraud or deceit IN WHICH THE LOSS TO THE VICTIM OR VICTIMS EXCEEDS $10,000; or certain offenses relating to tax evasion IN WHICH THE REVENUE LOSS TO THE GOVERNMENT EXCEEDS $10,000

• Certain offenses relating to alien smuggling

• Certain improper entry or illegal reentry offenses committed by an alien who was previously deported on the basis of an aggravated felony conviction

• Offense which is falsely making, forging, counterfeiting, mutilating, or altering a passport or instrument, or certain other offenses relating to document fraud, FOR WHICH THE TERM OF IMPRISONMENT IS AT LEAST 12 MONTHS

• Offense relating to a failure to appear by a defendant for service of sentence if the underlying offense is punishable by imprisonment for a term of 5 years or more

• Offense relating to commercial bribery, counterfeiting, forgery, or trafficking in vehicles the identification numbers of which have been altered FOR WHICH THE TERM OF IMPRISONMENT IS AT LEAST ONE YEAR

• Offense relating to obstruction of justice, perjury or subornation of perjury, or bribery of a witness FOR WHICH THE TERM OF IMPRISONMENT IS AT LEAST ONE YEAR

• Offense relating to a failure to appear before a court pursuant to a court order to answer to or dispose of a charge of a felony for which a sentence of 2 years imprisonment or more may be imposed

• Attempt or conspiracy to commit any of the above offenses

NOTE: For all of the listed offenses, the definition includes violations of Federal or State law, and even violations of the law of a foreign country [See final paragraph of INA 101(a)(43), 8 U.S.C. 1101(a)(43)).]

WARNING: Even an offense classified as a “misdemeanor” by the state may fall within the immigration law definition of an “aggravated felony.”

Examples of misdemeanor offenses that have been found to be “aggravated felonies” under Board of Immigration Appeals (BIA) or federal court precedent include New York misdemeanor petty larceny where the maximum one year sentence was imposed, U.S. v. Graham, 169 F.3d 787 (3d Cir.), cert. denied.528 U.S. 845 (1999); other state misdemeanor theft offenses where at least a one year sentence was imposed, U.S. v. Pacheco, 225 F.3d 148 (2d Cir. 2000)(Rhode Island offense), cert. denied, 533 U.S. 904 (2001), U.S. v. Christopher, 239 F.3d 1191 (11th Cir.)(Florida offense), cert. denied, 534 U.S. 877 (2001); New York 4th degree misdemeanor sale of marijuana, U.S. v. Simpson, 319 F.3d 81 (2d Cir. 2002)(for illegal reentry sentencing purposes); misdemeanor sexual abuse of a minor, Matter of Small, 23 I&N Dec. 448 (BIA 2002)(New York offense), U.S. v. Gonzales-Vela, 276 F.3d 763 (6th Cir. 2001)(Kentucky offense), U.S. v. Guerrero-Perez, 242 F.3d 727 (7th Cir. 2001)(Illinois offense); misdemeanor assault where at least a one year sentence was imposed, Matter of Martin, 23 I&N Dec. 491 (BIA 2002) (Connecticut offense), U.S. v. Cardoza-Estrada, 385 F.3d 56 (1st Cir. 2004) (New Hampshire offense); U.S. v. Pacheco, 225 F.3d 148 (2d Cir. 2000)(Rhode Island offense), cert. denied, 533 U.S. 904 (2001), U.S. v. Urias-Escobar, 281 F.3d 165 (5th Cir.)(Texas offense), cert. denied, 122 S. Ct. 2377 (2002); Nevada misdemeanor battery where maximum one year sentence imposed, U.S. v. Gonzalez-Tamariz, 310 F.3d 1168 (9th Cir. 2003), cert. denied, 538 U.S. 1008 (2003); Virginia misdemeanor sexual battery where at least a one year sentence was imposed, Wireko v. Reno, 211 F.3d 833 (4th Cir. 2000); and Utah misdemeanor child abuse where at least a one year sentence was imposed, U.S. v. Saenz-Mendoza, 287 F.3d 1011 (10th Cir.), cert. denied, 123 S. Ct. 315 (2002).

“CRIME OF VIOLENCE” DEFINED -- The definition of "crime of violence" in 18 U.S.C. 16 includes "(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense."