For the Defense - Volume 1, Issue 3 - 2016 - 22

2014 Memorandum, Policies for the Apprehension, Detention, and Removal of Undocumented Immigrants: * Priority 1 covers threats to national security, border security and public safety. This category combines terrorists with aliens convicted of an "aggravated felony" as defined by the Immigration and Nationality Act (INA). * Priority 2 consists of "misdemeanants" and new immigration violators. * Priority 3 is refers to other immigration violations.5 Before examining the statistics regarding removals of noncitizens within each level of enforcement priority as reported by ICE, it is important for defense attorneys to understand the meaning of the terms misdemeanant, significant misdemeanor and aggravated felony for immigration purposes. A misdemeanant refers to an alien convicted of three or more misdemeanor offenses each punishable for less than one year or to an alien convicted of one significant misdemeanor. An example of a significant misdemeanor is a conviction to driving under the influence of alcohol as a first offense. Another example of a significant misdemeanor is any offense for which the individual was sentenced to time in custody of 90 days or more (the sentence must involve time to be served in 22 For The Defense | Vol. 1, Issue 3 custody, and does not include a suspended sentence). A more complex analysis is required to determine whether state offense is an "aggravated felony" as defined by Section 101(a) (43) of the Immigration and Nationality Act (INA). The definition of "aggravated felony" under the INA covers more than thirty types of offenses, including simple battery, theft, and failing to appear in court. For example, Section 101(a)(43)(G) of the INA provides that an aggravated felony includes a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment is at least one year. A sentence of time-served to 23 months for a conviction to Retail Theft as a Misdemeanor of the First Degree under the Pennsylvania Crimes Code triggers an aggravated felony categorization pursuant to Section 101(a)(43)(G) of INA. In Bovkun v. Ashcroft, the Third Circuit held that under Pennsylvania's sentencing scheme of requiring a minimum term of incarceration and a maximum term of incarceration, it is the number representing the maximum term of incarceration that determines if the sentence is a year or more for purposes of an aggravated felony determination under Section 101(a)(43) (G) of INA.6 As a result, a conviction to Retail Theft as a Felony of the Third Degree is not an aggravated felony under the INA when the sentence is to three years of probation. The reason is that the maximum term of incarceration is the determinative factor in identifying whether a theft offense is an aggravated felony as defined by the INA. The grading of a theft offense under the Pennsylvania Crime Code is not considered

Table of Contents for the Digital Edition of For the Defense - Volume 1, Issue 3 - 2016