A number of other non-substantive offenses exist under the law of some states.  For example, some states penalize concealment of a felony.  Where a state conviction violates a non-substantive law that applies to any felony, e.g., concealment of a felony, counsel can argue that this type of offense is similar to attempt and conspiracy, yet Congress chose not to add it to the list of deportable offenses.  See § 7.7(B), supra.

 

It is possible to argue in any jurisdiction that a conviction of an unlisted non-substantive offense is not an aggravated felony, using the “if it’s not listed, it’s not an aggravated felony argument.”  See § 7.7(B), supra.  See also Appendix H, infra, for examples of Congress’ express inclusion of other non-substantive offenses as part of various grounds of deportation and inadmissibility, whereas it did not so include this non-substantive offense, thus giving rise to the argument that it meant to exclude these convictions.

Tenth Circuit

CONTROLLED SUBSTANCES " UNIDENTIFIED SUBSTANCE
Jimenez-Guzman v. Holder, 642 F.3d 1294, 2011 WL 2547562 (10th Cir. Jun. 28, 2011) (government must establish by clear, unequivocal, and convincing evidence that the facts alleged as grounds of removability are true: that is, that the criminal conviction was for possession of a substance that is not only listed under [state] law, but also contained in the federal schedules of [the Controlled Substances Act].); quoting Ruiz"Vidal v. Gonzales, 473 F.3d 1072, 1076, 1078 (9th Cir. 2007) (internal quotation marks and brackets omitted).