Aggravated felonies are defined at 8 USC § 1101(a)(43), which lists dozens of common-law terms and references to federal statutes. Aggravated felonies (“AF”) are the convictions with the most serious immigration consequences for a noncitizen. Noncitizens who have been convicted of an AF are prohibited from receiving most forms of relief from deportation, including asylum, and from being readmitted to the United States at any time in the future. A noncitizen who is convicted of an aggravated felony, deported or removed, and then returns to the U.S. without permission faces a tough federal prison sentence under 8 USC §1326(b)(2). Mandatory Detention for Aggravated Felonies Federal immigration authorities are required to detain any immigrant convicted of an “aggravated felony” upon his or her release from criminal custody. To obtain bond from an immigration judge, LPRs who are detained following a conviction of a potential “aggravated felony” must demonstrate with substantial likelihood that the crime in question does not qualify as an “aggravated felony. Aggravated Felony Bars Relief LPR Cancellation of Removal LPRs who have been convicted of an aggravated felony cannot receive 42A LPR cancellation of removal. Asylum Particularly serious crimes bar asylum relief and a conviction for any aggravated felony is considered a particularly serious crime in asylum determinations, regardless of the term of criminal incarceration. In addition, for purposes of asylum, additional crimes may be defined as “particularly serious crimes” or “serious nonpolitical crimes” by regulation. See 8 USC § 1158(b)(2)(B)(i). Further, courts have held that the Attorney General may designate a specific offense as a “particularly serious crime” through case-by-case adjudication. See 8 U.S.C. § 1158(b)(2)(B)(ii). Waivers Certain LPRs may not obtain a waiver of inadmissibility under Section 212(h) of the INA if they were convicted of an AF. A 212(h) waiver can waive criminal offenses that make a noncitizen inadmissible and allow for them to be admitted to the United States. Voluntary Departure An immigrant convicted of an aggravated felony is ineligible for voluntary departure. Voluntary departure is a discretionary form of relief allowing a deportable noncitizen to leave the country at their own expense in place of formal deportation. Permanent Inadmissibility Following Departure from the United States A noncitizen removed from the United States after being convicted of an aggravated felony (or who leaveswhile an order of removal is outstanding) is permanently inadmissible. To lawfully reenter the United States, such an immigrant must receive a special waiver from USCIS, in addition to meeting all other grounds of admissibility. Deportation without a Removal Hearing Certain noncitizens convicted of an aggravated felony are provided fewer legal protections than otherimmigrants. Any noncitizen convicted of an aggravated felony who is not a lawful permanent resident (LPR) may be administratively removed/deported from the United States without a formal hearing before anImmigration Judge. See INA § 238, 8 U.S.C. § 1228. What is an Aggravated Felony Statute – INA § 101(a)(43) (43) The term “aggravated felony” means- (A) murder, rape, or sexual abuse of a minor; (B) illicit trafficking in a controlled substance (as defined in section 802 of title 21), including a drug trafficking crime (as defined in section 924(c) of title 18); See section 802 of Title 21 here. (C) illicit trafficking in firearms or destructive devices (as defined in section 921 of title 18) or in explosive materials (as defined in section 841(c) of that title); (D) an offense described in section 1956 of title 18 (relating to laundering of monetary instruments) or section 1957 of that title (relating to engaging in monetary transactions in property derived from specific unlawful activity) if the amount of the funds exceeded $10,000; (E) an offense described in- (i) section 842(h) or (i) of title 18, or section 844(d), (e), (f), (g), (h), or (i) of that title (relating to explosive materials offenses); (ii) section 922(g)(1), (2), (3), (4), or (5), (j), (n), (o), (p), or (r) or 924(b) or (h) of title 18 (relating to firearms offenses); or (iii) section 5861 of title 26 (relating to firearms offenses); (F) a crime of violence (as defined in section 16 of title 18, but not including a purely political offense) for which the term of imprisonment at 5 least one year; (G) a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment at 5 least one year; (H) an offense described in section 875, 876, 877, or 1202 of title 18 (relating to the demand for or receipt of ransom); (I) an offense described in section 2251, 2251A, or 2252 of title 18 (relating to child pornography); (J) an offense described in section 1962 of title 18 (relating to racketeer influenced corrupt organizations), or an offense described in section 1084 (if it is a second or subsequent offense) or 1955 of that title (relating to gambling offenses), for which a sentence of one year imprisonment or more may be imposed; (K) an offense that- (i) relates to the owning, controlling, managing, or supervising of a prostitution business; (ii) is described in section 2421, 2422, or 2423 of title 18 (relating to transportation for the purpose of prostitution) if committed for commercial advantage; or (iii) is described in any of sections 1581–1585 or 1588–1591 of title 18 (relating to peonage, slavery, involuntary servitude, and trafficking in persons); (L) an offense described in- (i) section 793 (relating to gathering or transmitting national defense information), 798 (relating to disclosure of classified information), 2153 (relating to sabotage) or 2381 or 2382 (relating to treason) of title 18; (ii) section 3121 of title 50 (relating to protecting the identity of undercover intelligence agents); or (iii) section 3121 of title 50 (relating to protecting the identity of undercover agents); (M) an offense that- (i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; or (ii) is described in section 7201 of title 26 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000; (N) an offense described in paragraph (1)(A) or (2) of section 1324(a) of this title (relating to alien smuggling), except in the case of a first offense for which the alien has affirmatively shown that the alien committed the

STEP 1 Identify the “Generic” Definition of the Removal Ground The grounds of inadmissibility and deportability (which include the definition of an aggravated felony) contain dozens of terms describing crimes, e.g., “crime involving moral turpitude,” “crime of child abuse,” “law…relating to a controlled substance,” “crime of violence,” “burglary,” etc. Each of these terms must have a technical, federal definition, referred to as the “generic” definition. Our first research task is to identify the generic definition of the term that appears in the removal ground with which we are concerned. Federal court or Board of Immigration Appeals case law may define a general term; checking secondary sources can save research time. Some removal grounds reference a federal statute as the definition, in which case we look to federal cases interpreting that statute. The Supreme Court reviewed possible sources for definitions, including the Model Penal Code, common law, and the law of several states, and finally decided that generic burglary contains these elements: “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” The Court found that the term “building or other structure” does not include a vehicle. Taylor v. United States, 495 U.S. 575, 598 (1990) (emphasis added). Note on subsequent expansion of the definition of burglary. Almost thirty years after Taylor, the Supreme Court revisited this generic definition and held that it includes burglary of a vehicle that is “adapted or customarily used for lodging.” United States v. Stitt, 139 S.Ct. 399 (2018). The Court reviewed its prior decisions on burglary, in Taylor, Mathis, etc., and found that that particular issue had not been presented, and the prior decisions did not conflict with it. Because the new definition does not affect those prior decisions, we will not discuss it further as part of this example. Identify the minimum conduct prosecuted that violates the statute of conviction Using the text of the statute of conviction, state case law, or other materials, we identify the minimum conduct required to violate the statute of which our client was convicted. Court decisions may refer to this as the “minimum conduct,” “least acts criminalized,” or “least adjudicated elements.” Remember that we are focusing solely on the minimum conduct that can be or has been prosecuted under the statute, and “ignoring the particular facts of the case.” Mathis, 136 S.Ct. at 2248. The Supreme Court has cautioned that an immigrant may not simply imagine some theoretical, possible minimum conduct for an offense, but must demonstrate a “realistic probability” that this minimum conduct actually would be prosecuted under the statute. One may prove this by producing one or more cases where someone was found guilty under the statute for committing the particular minimum conduct. One can cite to published or unpublished decisions, their own case, or arguably other materials such as documents from criminal prosecutions or press releases or newspaper articles, that document conviction for non-generic conduct. For further discussion of the realistic probability of prosecution, see Part II, below, and see online practice advisories. One excellent source of information about a state statute’s minimum conduct is the relevant state jury instruction for the offense. Do an internet search, or work with a criminal defense attorney, to find the instructions. The instructions also may cite to state precedential cases, which are the best authority. In addition to cases, many circuit courts of appeals have held that an immigrant can demonstrate that a statute is overbroad if the express language of the statute includes conduct that is outside of the generic federal definition. In circuits that have adopted this rule, sometimes referred to as the “express language rule,” no cases or other realistic probability proof is necessary. The BIA and just a few circuit courts of appeals have declined to adopt the express language rule. See Part II, below. In those jurisdictions, even if the statute describes a specific minimum conduct, the immigrant may need to provide a further showing of realistic probability of prosecution. Is the crime of conviction defined more broadly than the generic definition? Here is where we compare the elements of the generic definition with the elements of the client’s conviction. If the generic definition contains all of the elements of the criminal statute, there is a categorical match. Another way to state the test is to say that if there is some way to commit the state offense that would not also commit the generic definition, then there is no categorical match. If there is a categorical match, the removal ground will apply to every conviction under the statute. The client loses and our analysis is over. If there is no categorical match, then the statute as whole is overbroad, meaning it reaches conduct not reached by the generic definition. In that case the immigrant will win everything, unless the statute is divisible. We go to Step 2 to determine divisibility. STEP 2 Is the Criminal Statute Divisible? This step may appear complex, but stay with it until the example. In Mathis, the Supreme Court affirmed a strict test for when a criminal statute is divisible. The statute must meet all of these criteria: The jury unanimity requirement is a new concept to many immigration advocates, and state law is not always clear as to whether statutory alternatives are means (no juror unanimity requirement) or elements (juror unanimity requirement). In Mathis, the Supreme Court provided instructions on how to determine whether these statutory phrases are elements or means. The Court identified the following sources (see Mathis, 136 S. Ct. at 2256-2257): State case law. As was the case in Mathis, sometimes there are state cases that rule on whether statutory alternatives have a juror unanimity requirement. You can find these cases through ordinary state law research tools. State model criminal jury instructions, often available on state court system websites, may provide case citations that speak to the juror unanimity question, and thus can be a good place to start research. However, in

A conviction for selling a simulated controlled substance that was not actually a controlled substance is not an offense relating to a controlled substance under INA § 237(a)(2)(B)(i). Matter of Sanchez-Cornejo, 25 I. & N. Dec. 273 (BIA 2010). INA § 237(a)(2)(B)(i) – Offense “Relating To” a Controlled Substance Any alien who at time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802), other than a single offense involving possession for one’s own use of thirty grams or less of marijuana is deportable. Matter of Sanchez-Cornejo, 25 I. & N. Dec. 273 (BIA 2010) Texas conviction of delivery of a simulated controlled substance, as defined by 482.001(4) of the Texas Health and Safety Code, is not an aggravated felony drug trafficking offense because federal law does not punish distribution of a non-controlled substance in place of a real controlled substance; the violation is, however, a controlled substances offense for purposes of triggering removability under INA 237(a)(2)(B). For NY Controlled Substance Convictions the sale of actual controlled substances may not be a crime related to a controlled substance. See U.S. v. Minter, No. 21-3102 (2d Cir. 2023).

18 U.S.C. §16. Crime of violence definedThe term “crime of violence” means- (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. 18 USC 16: Crime of violence defined A person has been convicted of an aggravated felony if the conviction is for a “crime of violence” and the sentence is at least on year. See INA § 101(a)(43)(F). The definition of “crime of violence” is, in turn, defined by 18 U.S.C. § 16. Aggravated felonies constitute both a ground of deportability and a bar to several forms of relief in removal proceedings See, e.g., INA §§ 237(a)(2)(A)(iii); 240A(a). The first subsection of the crime of violence definition at 18 U.S.C. § 16(a) provides that “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another” is a deportable offense if the sentence is at least one year. The second subsection states that a crime of violence includes “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force may be used in the course of committing the offense.” 18 U.S.C. § 16(b). This section swept in offenses that involved no violent force, such a burglary or evading the police. The Supreme Court had previously held that a similar statute was unconstitutional in Johnson v. United States, 135 S. Ct. 2551 (2015). In Sessions v. Dimaya SCOTUS issued a decision on April 17, 2018, holding that the second clause of the definition of “crime of violence” as used in the definition of an aggravated felony is unconstitutionally void for vagueness.

The Second Circuit has found that NY defines narcotic in a way that is overbroad and includes substances that are not on the federally controlled substance schedules and therefore, under the categorical approach, are not controlled substance offenses. U.S. v. Minter, No. 21-3102 (2d Cir. 2023) The issue on appeal is whether Defendant’s 2014 conviction under New York Penal Law Section 220.39(1) for the sale of cocaine was for a “serious drug offense” and therefore qualifies as a predicate offense for the purposes of a sentencing enhancement under the ACCA. The Second Circuit affirmed, holding that New York’s definition of cocaine is categorically broader than its federal counterpart, thus, Defendant’s cocaine conviction cannot serve as a predicate ACCA offense. The government argued that under Gonzalez v. Duenas-Alvarez, that even if the New York definition of cocaine is broadly construed to criminalize all its isomers, Minter must show a “realistic probability, not a theoretical possibility,” that New York’s statute is broader in practice. The court explained that here, the New York statute applies on its face to all cocaine isomers; the CSA does not. In citing Hylton, the court wrote, “When the state law is facially overbroad, we look no further.” NOTE: Reason to believe charges do not require a conviction. See reason to believe. NY Penal Law § 220.39: Criminal sale of a controlled substance in the third degree There are several offenses prohibiting selling drugs in the New York Penal Code. Most require that you sell or attempt to sell a minimum amount of specific types of drugs in order to be prosecuted. You will have committed the crime of criminal sale of a controlled substance in the third degree under New York Penal Code § 220.39 if you knowingly and unlawfully sell drugs as follows: In addition you could be prosecuted for criminal sale of a controlled substance in the third degree if you sell narcotics to someone who is under the age of 21, or you sell a stimulant, hallucinogen, hallucinogenic substance, or lysergic acid diethylamide and you previously have been convicted of a drug offense.

SINGLE MARIJUANA OFFENSE EXCEPTION Exception for single conviction for marijuana under 30 grams. INA 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i) (2006). For purposes of INA 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i) (2006), the phrase a single offense involving possession for ones own use of thirty grams or less of marijuana calls for a circumstance-specific inquiry; a respondent convicted of more than one marijuana-related offense arising out of the same underlying facts may still meet the single offense exception. See Matter of Davey, 26 I&N Dec. 37 (BIA 2012). Matter of Davey, 26 I&N Dec. 37 (BIA 2012) Arizona convictions of possession of marijuana, in violation of Ariz. Rev. Statute 13-3405(A)(1), and possession of drug paraphernalia (the plastic bag in which the marijuana was contained), Ariz. Rev. Statute 13-3415(A), constituted a single offense involving a small quantity of marijuana, under INA 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i), since Congress meant offense in this statute to refer to the totality of an aliens specific acts on a single occasion, so the exception is available to a noncitizen convicted of more than one statutory offense, provided that each crime involved a single incident in which the alien possessed a small amount of marijuana for personal use.); following the reasoning of Matter of Martinez-Espinoza, 25 I&N Dec. 118, 124 (BIA 2009) (we concluded that the term offense used in [INA] section 212(h) was best understood as refer[ring] to the specific unlawful acts that made the alien inadmissible, rather than to any generic crime.).