Aggravated Felonies

There are two categories in which a conviction must be a felony conviction before it can constitute an aggravated felony conviction:

(1)  A conviction must be a felony before it can constitute a “crime of violence” under 18 U.S.C. § 16(b), where the statute has no element requiring threat or use of force, but the offense is considered a “crime of violence” because there is a substantial risk that force will be used in the commission of the offense.  See § 3.59, infra.

            Therefore, a conviction that is originally a misdemeanor, infraction, or other lesser level of offense, or which is later reduced to an offense less than a felony, will be a safe haven with respect to this portion of the crime of violence aggravated felony definition.  See § § 5.24, 6.22, infra.

(2)  Whether a state conviction of first-offense simple possession of a controlled substance, or other drug offense that would be considered a misdemeanor under federal law will be considered an aggravated felony drug trafficking offense, will depend on a number of factors, including the convicting state’s definition of “felony,” the controlling law on this issue in the jurisdiction in which the case arises, and whether the issue is raised in immigration proceedings, or in sentencing following prosecution for illegal re-entry.  See § § 3.60, infra, 6.21, infra.

            Depending on the law of the convicting jurisdiction, a conviction that is originally a misdemeanor or infraction (or other lesser level of offense), or which is later reduced to an offense less than a felony, may be a safe haven with respect to the drug trafficking aggravated felony definition.  See § § 3.66, 5.39, 6.21, infra.

            Federal regulations pertaining to eligibility for Temporary Protected Status define “felony” as follows:

            Felony means a crime committed in the United States, punishable by imprisonment for a term of more than one year, regardless of the term such alien actually served, if any, except: When the offense is defined by the State as a misdemeanor and the sentence actually imposed is one year or less regardless of the term such alien actually served. Under this exception for purposes of section 244 of the Act, the crime shall be treated as a misdemeanor.

. . .

            Misdemeanor means a crime committed in the United States, either:

            (1) Punishable by imprisonment for a term of one year or less,
regardless of the term such alien actually served, if any, or

            (2) A crime treated as a misdemeanor under the term ``felony’’ of this section.

For purposes of this definition, any crime punishable by imprisonment for a maximum term of five days or less shall not be considered a felony or misdemeanor. [460]

It may be possible to use this definition, for its persuasive value, in other contexts, such as the question whether a state conviction for possession of a controlled substance constitutes an aggravated felony, under INA § 101(a)(43)(B), or whether a conviction constitutes a felony for purposes of constituting an aggravated felony crime of violence within the meaning of 18 U.S.C. § 16(b).

[460] 8 C.F.R. § 244.1.