(B)  Safe Haven Sentences of Less Than One Year.  The basic rule regarding these particular aggravated felony convictions — which require a one-year sentence before they will be considered aggravated felonies — is as follows:  If a noncitizen, who is convicted in state or federal court of one or more of the common crimes on the “one-year” list, receives an original sentence imposed of less than one year, the conviction is a safe haven because it does not fall within the applicable aggravated felony definition.  Later vacating the one-year sentence imposed entirely, or reducing it to a sentence of less than one year, however, will also eliminate these particular aggravated felony convictions.  See § 4.29, supra.

 

A single conviction may fall into more than one damaging immigration category, and cause immigration problems under a different ground of deportation, even if a non-aggravated felony sentence is obtained.[226]  For this reason, even if a conviction is on this list of one-year offenses, and even if counsel manages to obtain, or reduce the sentence to, a sentence of less than one year, it is necessary to check to make sure the conviction does not trigger adverse immigration consequences under a separate rule.  Avoiding a deportable sentence for the listed aggravated felony convictions is the single most important sentencing technique by which to save great numbers of noncitizens from deportation.[227]

 

[226] The most common damaging immigration categories into which the INA groups criminal convictions are: aggravated felony convictions, convictions of crimes involving moral turpitude, controlled substance convictions, firearm convictions, and domestic violence convictions.  There are some grounds of deportation and inadmissibility that are based on conduct, rather than a conviction, but they do not arise very often.  See N. Tooby, Criminal Defense of Immigrants § § 2.21 et seq. (2003).

[227] See N. Tooby, Aggravated Felonies § 3.34 (2003).

Fifth Circuit

DEFINITION OF FELONY - MISDEMEANOR CONVICTION PUNISHABLE BY UP TO 18 MONTHS IMPRISONMENT IS A FELONY FOR IMMIGRATION PURPOSES AGGRAVATED FELONY - CONTROLLED SUBSTANCES OFFENSES - COLORADO MISDEMEANOR SIMPLE POSSESSION PUNISHABLE BY UP TO 18 MONTHS IMPRISONMENT IS AN AGGRAVATED FELONY
U.S. v. Sanchez-Villalobos, __ F.3d __, 2005 WL 1332244 (5th Cir. June 7, 2005) (misdemeanor simple possession, under Colorado Colo.Rev.Stat. 18-1.3- 501(1), punishable by up to 18 months imprisonment is an aggravated felony for sentencing purposes, as it is punishable by imprisonment for more than one year).

Ninth Circuit

AGGRAVATED FELONY " SENTENCE IMPOSED " ONE YEAR IS DEFINED AS 365 DAYS, REGARDLESS OF LEAP YEARS
Habibi v. Holder, 658 F.3d 977 (9th Cir. Sept. 14, 2011) (the phrase "one year" is defined as 365 days, regardless of leap years; noncitizen was deportable for aggravated felony, under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), even though his sentence was served during a leap year).

AGGRAVATED FELONY " THEFT OFFENSE " COMMERCIAL BURGLARY
Hernandez-Cruz v. Holder, ___ F.3d ___ (9th Cir. Jul. 7, 2011) (California conviction of second-degree commercial burglary, in violation of Penal Code 459, did not categorically constitute an attempted theft aggravated felony, under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), because 459 criminalizes conduct beyond generic attempted theft offenses"for example, entering a locked vehicle with the intent to commit not theft, but arson or vandalism. . . . Because one can be convicted under 459 for a crime that does not qualify as generic attempted theft, the statute is not a categorical match for the generic aggravated felony offense.); Ngaeth v. Mukasey, 545 F.3d 796, 800, 801 (9th Cir. 2008) (per curiam).

Other

RESOURCES " FEDERAL CONVICTIONS " CHART OF FELONY AND MISDEMEANOR OFFENSES
Felony and Misdemeanor Federal Chart as prepared by Federal Defender office: http://ms.fd.org/maxpenalties/maxpenalties.pdf

SENTENCE - SENTENCE IMPOSED - 12 MONTHS EQUALS ONE YEAR
12 months equals one year in immigration court. See Drakes v. Zimski, 240 F.3d 246, 251 (3d Cir. 2001); United States v. Christopher, 239 F.3d 1191, 1193 (11th Cir. 2001).