Individual Immigration Law E-Newsletter

Individual Immigration Law E-Newsletter

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The Virginia & Maryland immigration attorneys wish to answer a question that is commonly asked of us?

What has Congress defined as a felony and an aggravated felony for immigration purposes?

Congress has defined "felony" as an offense for which the maximum term of imprisonment is "more than one year." Moreover, the Sentencing Guidelines define "felony" to include "any federal, state, or local offense punishable by imprisonment for a term exceeding one year

One has to verify whether the particular conviction in fact truly constitutes an aggravated felony. Any reasonable doubts concerning the interpretation of the statutory definition must be resolved in favor of the non citizen.

When considering whether a particular conviction constitutes an aggravated felony, it is useful to determine whether Congress has elsewhere used the same language it employed in the aggravated felony definition.

Where one or more of these aggravating factors is not present, however, it would be possible to argue that the offense did not constitute an aggravated felony even though it fell within another federal statutory definition of the same terms used in the aggravated felony definition, since the Board have held that these statutory definitions were merely guidelines, and not definitive.

The record of conviction includes the statutory elements, charging documents, written plea agreement, transcript of plea colloquy, and any explicit factual findings to which the defendant assented. Courts should not use information in the record of conviction to add an element to the definition of an offense. This was the holding in the Fourth Circuit regarding a crime of violence analysis and should extend to all aggravated felony categories, although one court has refused to apply the same rule to crimes of moral turpitude.

Notes taken from case law (li v. Ashcroft and valansi v. Ashcroft)

1) A charging document together with judgment of conviction were insufficient to show that jury had actually found that alien's fraud had resulted in loss of more than $10,000, so as to provide basis for his removal.

The point to prove is that the conviction under title 18 section 1029 does not qualify under the aggravated felony. We have to advance an argument that the jury failed to establish the elements of fraud or deceit with the facts of our case. Fraud and deceit has not been defined in INA therefore its commonly perceived meaning has to be taken.

2) The requisite amount of loss is not demonstrated unequivocally by the charging document and the judgment of conviction.