BIA: Misdemeanor Offense of Sexual Abuse of a Minor Is "Aggravated Felony" (Matter of Small)

IMMIGRATION LAW & POLICY

Removal Issues Concerning Criminal Convictions

BIA: MISDEMEANOR OFFENSE OF SEXUAL ABUSE OF A MINOR IS "AGGRAVATED FELONY" (MATTER OF SMALL)
Immigrants' Rights Update, Web Edition, July 15, 2002

The Board of Immigration Appeals has issued an en banc precedent decision finding that a New York misdemeanor conviction for sexual abuse of a minor constitutes an "aggravated felony" under section 101(a)(48)(A) of the Immigration and Nationality Act. The BIA had reached the opposite conclusion in Matter of Crammond, 23 I. & N. Dec. 9 (BIA 2001). However, the BIA subsequently vacated the opinion in Crammond, finding that it had no jurisdiction over Crammond's motion to reopen. The lack of jurisdiction stemmed from the fact that, unbeknownst to the BIA, the respondent had already left the country at the time of the original ruling. Matter of Crammond, 23 I. & N. Dec. 179 (BIA 2001).

In its original opinion in Crammond, the BIA majority found that, because there is no indication in INA section 101(a)(48)(A) that the provision applies to a misdemeanor conviction, only a felony conviction can constitute an "aggravated felony" under this subsection. The BIA now has decided that "the legal landscape relating to this question has significantly changed." At the time of the original Crammond decision, only the Seventh Circuit had ruled on the issue, finding that section 101(a)(48)(A) does encompass misdemeanors. Guerrero-Perez v. INS, 242 F.3d 727 (7th Cir. 2001). Since then, the Seventh Circuit has reaffirmed its prior ruling, and the Sixth and Eleventh Circuits have reached the same conclusion. The BIA concluded that these developments constitute grounds for reversing its ruling on this issue.

Matter of Small, 23 I. & N. Dec. 448, Int. Dec. 3476 (BIA June 4, 2002).