Eleventh Circuit Says Florida Aggravated Fleeing Is an Aggravated Felony

Convictions of certain types of crimes, referred to as “aggravated felonies,” carry severe immigration consequences for foreign nationals seeking permanent residence, citizenship, asylum, and relief from removal. The types of crimes that may constitute aggravated felonies are listed in the immigration statute, the Immigration and Nationality Act (INA). One category of Aggravated Felonies consists of certain crimes of violence for which the term of imprisonment is at least one year.

On October 1, 2014, in Dixon v. U.S. Attorney General, the Eleventh Circuit denied the petition for review, upholding the Board of Immigration Appeals’ finding that the petitioner’s conviction for aggravated fleeing under Florida Statute §316.1935(4)(a) was an aggravated felony as “a crime of violence for which the term of imprisonment is at least one year” and thus the petitioner was deportable under §237(a)(2)(A)(iii) of the INA.

The petitioner in Dixon argued that the revocation of a sentence of probation resulting in a term of imprisonment of at least one year was a sentence for a probation violation, not for the underlying crime that produced the original sentence of probation. The Eleventh Circuit rejected this argument, finding that Florida law clearly holds that the sentence imposed after a probation violation is for the original, underlying offense. The petitioner also disputed that the conviction was for a “crime of violence.” The Eleventh Circuit found that because the statute of conviction in question is an offense that naturally involves a person acting in disregard of a substantial risk that physical force might be used against another in committing the offense, it is a “crime of violence” for purposes of the aggravated felony determination.

This holding may have very significant implications for foreign nationals who have been charged with or convicted under this statute. It is critical for non-U.S. citizens who have been charged with a crime to contact experienced immigration counsel early in the criminal process in order to assess the consequences of a conviction and to work out a strategy with criminal counsel that would not jeopardize the client’s immigration status.

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