The statute explicitly states that an attempt to commit an aggravated felony offense itself constitutes an aggravated felony.[307]  An attempt to commit a non-aggravated felony conviction would under the plain meaning of the statute not constitute an aggravated felony.

 

            It is also a safe haven if the state definition of “attempt” is broader than the federal definition of attempt used in the aggravated felony statute, and the conviction in question either (a) falls in the overbroad portion of the state statute, and is thus expressly not included within the aggravated felony definition of attempt, or (b) has a record of conviction that does not unambiguously establish that the state conviction falls within the aggravated felony definition of attempt.  See ali, model penal code § 5.01 (Criminal Attempt)(1985).

 

A generic definition of attempt has emerged from both the BIA and circuit court decisions.  The Second Circuit has upheld the BIA’s definition of the term “attempt” in the aggravated felony definition as requiring “the presence of criminal intent and the completion of a substantial step toward committing the crime,” as a reasonable interpretation of the statutory term to be accorded Chevron deference.[308]  The Seventh Circuit has also adopted the “substantial step” test as the generic federal definition of attempt.[309]  Likewise, a New York state conviction for attempted robbery in the third degree has been found to meet the definition of “aggravated felony” under U.S. Sentencing Guidelines because it satisfies the federal definition of attempt, which requires a “substantial step” towards the commission of the offense.[310]

 

The Model Penal Code, however, defines attempt as any one of three subdivisions, only one of which is the “substantial step” approach.[311]  Some states, however, punish as attempt those who take any action to accomplish the forbidden purpose, even if it does not amount to a substantial step.[312]

            A conviction for possession of counterfeit securities worth over $10,000 does not constitute a conviction for “attempt” to commit a fraud offense within the meaning of the aggravated felony definition,[313] and is therefore not a conviction for an offense involving fraud or deceit in which the loss to victims is greater than $10,000.[314]

 

            An attempt to commit a crime which has recklessness as a mental element was held not to be a crime at all, since a person cannot intend to commit a criminally reckless act, and the “crime of attempted reckless endangerment is nonexistent since it is a non-intent offense.”[315]  While this decision was a decision under the crime of moral turpitude deportation ground, its reasoning seems to apply perfectly to the aggravated felony deportation ground:  this offense is not a crime, so it cannot be an aggravated felony conviction any more than it can be a crime of moral turpitude.

 

            It is important to examine the checklist of general aggravated felony safe havens to determine whether each offense or conviction being examined falls within one or more of the safe havens listed there.  See § 7.29, supra.

[307] INA § 101(a)(43)(U), 8 U.S.C. § 1101(a)(43)(U).

[308] Sui v. INS, 250 F.3d 105 (2d Cir. 2001) (possession of counterfeit securities does not amount to attempt to commit a fraud offense).

[309] United States v. Martinez-Garcia, 268 F.3d 460 (7th Cir. 2001) (upholding classification of auto burglary conviction as an attempted theft aggravated felony).

[310] United States v. Fernandez-Antonia, 278 F.3d 150 (2d Cir. 2002).  The New York statute at issue criminalized “an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime,” N.Y. Penal Law § 110.00, which has been interpreted to require a “dangerous proximity” to the crime.  The federal criminal law requires that in order for a defendant to be guilty of attempt, he must take a “substantial step” toward the commission of the offense with the intent to commit the crime.  See, e.g., United States v. Manley, 632 F.2d 978, 987-88 (2d Cir. 1980).  The court equated these two concepts, finding any difference between the two statutes “more semantic than real.” United States v. Fernandez-Antonia, 278 F.3d 150 (2d Cir. 2002).

[311] ali, model penal code § 5.01(1)(C) (1985).

[312] E.g., Georgia and Illinois.  See ali, supra, at 299 n.3.

[313] INA § § 101(a)(43)(M)(i), 101(a)(43)(U), 8 U.S.C. § § 1101(a)(43)(M)(i), 1101(a)(43)(U).

[314] Sui v. INS, 250 F.3d 105 (2d Cir. 2001).

[315] Knapik v. Ashcroft, 384 F.3d 84 (3d Cir. Sept. 17, 2004) (New York conviction of attempted reckless endangerment in the first degree, in violation of New York Penal Law § 120.25, does not constitute a crime of moral turpitude for deportation purposes, since a person cannot intend to commit a criminally reckless act, and the “crime of attempted reckless endangerment is nonexistent since it is a non-intent offense.”), citing People v. Trepanier, 84 A.D.2d 374, 380, 446 N.Y.S.2d 829 (N.Y.App.Div. 1982) (affirming the lower court’s decision to dismiss the indictment as to this charge).

First Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - ATTEMPTED RECKLESS ASSAULT
Dale v. Holder, 610 F.3d 294 (5th Cir. Jun. 25, 2010) (New York conviction for first degree assault, in violation of New York Penal Code 120.10, is not necessarily an aggravated felony crime of violence since the statute is divisible and includes reckless assault; BIA erred in finding that defendants in New York cannot be convicted of "attempted" reckless assault - although attempted reckless assault does not necessarily appear logical from a criminal standpoint, New York case law indicates that the offense is an acceptable plea), citing People v. Guishard, 15 A.D.3d 731, 789 N.Y.S.2d 332, 333 (N.Y.App.Div.2005) (affirming plea conviction to attempted assault in the first degree although the crime was a "legal impossibility").

Second Circuit

AGGRAVATED FELONY - ATTEMPT
Pierre v. Holder, 588 F.3d 767 (2d Cir. Dec. 8, 2009) (a charge under INA 101(a)(43)(U) for attempt to commit fraud is not a "lesser included offense" under INA 101(a)(43)(M)(i); therefore where the victim suffered no actual loss, the DHS could not prove that the noncitizen was deportable under INA 101(a)(43)(M)(i)).

Fifth Circuit

AGGRAVATED FELONY - ATTEMPT
United States v. Ellis, ___ F.3d ___, 2009 WL 783262 (5th Cir. Mar. 26, 2009) (North Carolina conviction of attempted common law robbery, "the felonious, non-consensual taking of money or personal property from the person or presence of another by means of violence or fear," see N.C. Gen. Stat. 14-1.5, 14-87.1 (setting punishments for attempt and robbery without defining them), presents a close question as to whether it qualifies as a "crime of violence" under USSG 4B1.2 for purposes of imposing a career offender sentence enhancement for a federal robbery conviction, because of the argument that North Carolina defines the term "attempted" more broadly (to require only "slight acts") than the "substantial step" required under the Model Penal Code and the majority of states, as well as 12 circuits; defendant forfeited right to bring this issue by failing to raise it before the district court); cf. United States v. Taylor, 529 F.3d 1232, 1237-38 (9th Cir.2008) (finding that Arizona's attempt statute, which used the phrase "any step," was broader than the federal definition, but that Arizona courts interpreted the statute to mean "substantial step"); United States v. Sarbia, 367 F.3d 1079, 1086 (9th Cir.2004) (Nevada's attempt statute and case law uses the "slight act" approach, but is coextensive with the federal, "substantial step" approach).

AGGRAVATED FELONY - ATTEMPT
United States v. Ellis, ___ F.3d ___, 2009 WL 783262 (5th Cir. Mar. 26, 2009) (the Model Penal Code 5.01(1) "substantial step" definition of "attempt" is the majority view, having been adopted by 12 circuits plus 26 states, and arguably should be used to define the term for purposes of the Taylor v. United States analysis in the career offender sentence enhancement context of USSG 4B1.2).

AGGRAVATED FELONY - ATTEMPT
United States v. Ellis, ___ F.3d ___, 2009 WL 783262 (5th Cir. Mar. 26, 2009) (North Carolina conviction of attempted common law robbery, "the felonious, non-consensual taking of money or personal property from the person or presence of another by means of violence or fear," see N.C. Gen. Stat. 14-1.5, 14-87.1 (setting punishments for attempt and robbery without defining them), presents a close question as to whether it qualifies as a "crime of violence" under USSG 4B1.2 for purposes of imposing a career offender sentence enhancement for a federal robbery conviction, because of the argument that North Carolina defines the term "attempted" more broadly (to require only "slight acts") than the "substantial step" required under the Model Penal Code and the majority of states, as well as 12 circuits; defendant forfeited right to bring this issue by failing to raise it before the district court); cf. United States v. Taylor, 529 F.3d 1232, 1237-38 (9th Cir.2008) (finding that Arizona's attempt statute, which used the phrase "any step," was broader than the federal definition, but that Arizona courts interpreted the statute to mean "substantial step"); United States v. Sarbia, 367 F.3d 1079, 1086 (9th Cir.2004) (Nevada's attempt statute and case law uses the "slight act" approach, but is coextensive with the federal, "substantial step" approach).

Sixth Circuit

AGGRAVATED FELONY - ATTEMPT
United States v. Ellis, ___ F.3d ___, 2009 WL 783262 (5th Cir. Mar. 26, 2009) (the Model Penal Code 5.01(1) "substantial step" definition of "attempt" is the majority view, having been adopted by 12 circuits plus 26 states, and arguably should be used to define the term for purposes of the Taylor v. United States analysis in the career offender sentence enhancement context of USSG 4B1.2).

Seventh Circuit

AGGRAVATED FELONY - ATTEMPT - INDECENT SOLICITATION OF A CHILD CONSTITUTED ATTEMPTED SEXUAL ABUSE OF A MINOR
Hernandez-Alvarez v. Gonzales, ___ F.3d ___, 2005 WL 3534204 (7th Cir. Dec. 28, 2005) (Illinois conviction of indecent solicitation of a child, in violation of 720 ILCS 5/11-6(a)(2000), constituted sexual abuse of a minor aggravated felony, under INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A), for deportation purposes even though the person solicited was an adult police officer rather than a minor), following Gattem v. Gonzales, 412 F.3d 758 (7th Cir. 2005).

Eighth Circuit

AGGRAVATED FELONIES " ATTEMPT " MERE PREPARATORY CONDUCT HELD INSUFFICIENT
United States v Warnell Reid, ___ F.3d ___, 2014 WL 5314563 (8th Cir. Oct 20, 2014) (Missouri conviction for attempted burglary is not a violent felony under the Armed Career Criminal Act, 18 U.S.C. 924(e)(2), because Missouris statute can be violated by mere preparatory conduct; commentary to the Missouri attempt statute says that "reconnoitering the place contemplated for the commission of the offense" or "possession of materials to be employed in the commission of the offense, which are specially designed for such unlawful use" can be a substantial step sufficient for conviction of attempted burglary); see James v. United States, 550 U.S. 192 (2007) (Florida state courts stated attempt required "an overt act directed toward the entry of a structure" to qualify as attempted burglary, so the court here found it unnecessary to address whether "more attenuated conduct" -- such as the "casing" of a building or neighborhood -- would suffice, but suggested that a statute requiring only "preparatory conduct" might well not qualify).

Ninth Circuit

AGGRAVATED FELONY " ATTEMPT " DEFINITION
United States v. Gonzalez-Monterroso, ___ F.3d ___, 2014 WL 575952 (9th Cir. Feb. 14, 2014) (Delaware definition of Attempt, Del.Code tit. 11, 531(2), 532, is not a categorical match with attempt as defined under the U.S.S.G., because Delaware's statutory definition of "substantial step" is materially different from and encompasses more conduct than the federal generic definition).

AGGRAVATED FELONY " ATTEMPT " COMMERCIAL BURGLARY
Hernandez-Cruz v. Holder, ___ F.3d ___ (9th Cir. Jul.7, 2011) (California conviction of second-degree commercial burglary, in violation of Penal Code 459, did not constitute attempted theft aggravated felony, under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), under the modified categorical analysis, because [s]imply entering a commercial building . . . is not in itself a substantial step supporting attempted theft liability.).

AGGRAVATED FELONY " THEFT OFFENSE " ATTEMPTED THEFT OFFENSE " DEFINITION
Hernandez-Cruz v. Holder, ___ F.3d ___, ___ (9th Cir. Jul.7, 2011) (Ngaeth defined a generic attempted theft offense as having two elements: [1] an intent to commit a theft offense, of the sort generically defined by [our precedent], coupled with [2] an overt act constituting a substantial step towards the commission of the offense.); quoting Ngaeth v. Mukasey, 545 F.3d 796, 800, 801 (9th Cir. 2008) (per curiam). The Ninth Circuit described the test for determining when conduct crosses the line between mere preparation to commit a crime, and a substantial step towards its commission: Mere preparation to commit a crime does not constitute a substantial step. United States v. Buffington, 815 F.2d 1292, 1301 (9th Cir. 1987); see also United States v. Hofus, 598 F.3d 1171, 1174 (9th Cir. 2010), cert. denied, 131 S. Ct. 364 (2010); Walters v. Maass, 45 F.3d 1355, 1359 (9th Cir. 1995); Ninth Circuit Model Criminal Instruction 5.3 (2010) (Mere preparation is not a substantial step toward committing the crime.). The difference between making preparations and taking a substantial step toward the commission of a crime is one of degree. Walters, 45 F.3d at 1359. [I]dentifying the point at which the defendants activities ripen into an attempt can be difficult, and is rarely an analytically satisfying enterprise. United States v. Harper, 33 F.3d 1143, 1148 (9th Cir. 1994). What is clear, however, is that it is not enough that the defendant have intended to commit a crime. There must also be an act, and not any act will suffice. Wayne R. LaFave, 2 Subst. Crim. L. 11.4 (2d ed. 2003); see also United States v. Gracidas-Ulibarry, 231 F.3d 1188, 1192-93 (9th Cir. 2000) (en banc) (explaining the common law of attempt liability). We have explained that a suspect crosses the line separating preparation from attempt when his actions unequivocally demonstrat[e] that the crime will take place unless interrupted by independent circumstances. United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (per curiam) (quoting United States v. Nelson, 66 F.3d 1036, 1042 (9th Cir. 1995) (internal quotation marks omitted)); see also United States v. Saavedra-Velazquez, 578 F.3d 1103, 1107 (9th Cir. 2009) ([W]e have held that the step toward commission of the crime must be of such substantiality that, unless frustrated, the crime would have occurred. (citation omitted)); Ninth Circuit Model Criminal Instruction 5.3 (2010) (To constitute a substantial step, a defendants act or actions must demonstrate that the crime will take place unless interrupted by independent circumstances.). Although the suspects conduct need not be incompatible with innocence to be punishable as an attempt, it must be necessary to the consummation of the crime and be of such a nature that a reasonable observer, viewing it in context, could conclude beyond a reasonable doubt that it was undertaken in accordance with a design to commit the [substantive offense]. Walters, 45 F.3d at 1359 (citation, alteration, and quotation marks omitted). To put it in slightly different terms, to constitute a substantial step, the action in question must be strongly corroborative of the firmness of a defendants criminal intent. United States v. Morales-Perez, 467 F.3d 1219, 1222 (9th Cir. 2006) (citation and quotation marks omitted); see also Model Penal Code 5.01(2) (Conduct shall not be held to constitute a substantial step . . . unless it is strongly corroborative of the actors criminal purpose.). Hernandez-Cruz v. Holder, ___ F.3d ___, ___ (9th Cir. Jul.7, 2011).

AGGRAVATED FELONY - ATTEMPT
United States v. Saavedra-Velazquez, 578 F.3d 1103 (9th Cir. Aug. 21, 2009) (California definition of "attempt" under Penal Code 21a is coextensive with the federal definition of "attempt"; "Because Saavedra-Velazquez has been unable to point to a case in which the requirement of a "slight act" rather than a "substantial step" has led to a different outcome under California law than it would at common law, and because Nevada's "slight acts" standard appears virtually identical to California's, we hold that an "attempt" under California law is coextensive with an "attempt" at common law.").

CONVICTION - NATURE OF CONVICTION- CATEGORICAL ANALYSIS- REALISTIC PROBABILITY OF PROSECUTION
United States v. Saavedra-Velazquez, 578 F.3d 1103 (9th Cir. Aug. 21, 2009) (the decision in this case relied heavily on the "realistic probability of prosecution" test created by the United States Supreme Court in Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815 (2007). The court found that although the California language differed, no California case was presented demonstrating the application of any test broader than the federal "substantial step" requirement.

AGGRAVATED FELONY - ATTEMPT
United States v. Rivera-Ramos, 578 F.3d 1111 (9th Cir. Aug. 21, 2009) (New York definition of "attempt" under N.Y. Penal Law 110.00, though sounding broader than the federal definition of "attempt" is, in application, more stringent than the federal test; attempt to commit robbery is therefore categorically a crime of violence for illegal re-entry sentencing purposes).

AGGRAVATED FELONY - ATTEMPT - ARIZONA ATTEMPT IS BROADER THAN AGGRAVATED FELONY ATTEMPT
Rebilas v. Keisler, 506 F.3d 1161, 1164 (9th Cir. Nov. 2, 2007) (Arizona conviction of attempted public sexual indecency to a minor, in violation of ARS 13-1001 and 13-1403(B), forbids conduct that falls outside the federal definition of attempted sexual abuse of a minor under INA 101(a)(43)(A), (U), 8 U.S.C. 1101(a)(43)(A) and (U): "Arizona's definition of attempt under ARS 13-1001 is broader than the federal definition of attempt. While the federal definition of attempt requires the defendant to commit an overt act constituting a substantial step towards the crime, United States v. Morales-Perez, 467 F.3d 1219, 1222 (9th Cir. 2006), Arizona's definition of attempt is satisfied if the defendant "[i]ntentionally does or omits to do anything which ... is any step" in the crime. ARS 13-1001(A)(2) (emphasis added); see State v. Fristoe, 135 Ariz. 25, 658 P.2d 825, 829-30 (App.1982). Thus, attempted public sexual indecency to a minor under Arizona law is broader than attempted sexual abuse of a minor under 8 U.S.C. 1101(a)(43)(A) and (U)", and an attempted offense, under Arizona law, does not categorically constitute an "attempt" under the aggravated felony definition of attempt in INA 101(a)(43)(U), 8 U.S.C. 1101(a)(43)(U)).

AGGRAVATED FELONY - ATTEMPT - CALIFORNIA ATTEMPT IS ARGUABLY BROADER THAN FEDERAL AGGRAVATED FELONY ATTEMPT
Rebilas v. Keisler, 506 F.3d 1161, 1164 (9th Cir. Nov. 2, 2007) (California conviction of attempt to commit an offense "is broader than the federal definition of attempt. While the federal definition of attempt requires the defendant to commit an overt act constituting a substantial step towards the crime, United States v. Morales-Perez, 467 F.3d 1219, 1222 (9th Cir. 2006)," attempt under California Penal Code 21a [requiring "a direct but ineffectual act done toward its commission,"] is broader than the federal statute, since California case law has consistently required only a " slight act"); see People v. Superior Court (Decker), 41 Cal.4th 1, 8 (2007); People v. Tillotson, 157 Cal. App. 4th 517 (2007); People v. Anderson, 1 Cal.2d 687, 690 (1934); People v. Berger, 131 Cal. App. 2d 127 (1955); People v. Memro, 38 Cal.3d at p. 658, 698 (1985); People v. Dillon, 34 Cal.3d 441, 455 (1983); People v. Morales, 5 Cal.App.4th 917, 926 (1992); People v. Fiegelman, 33 Cal. App. 2d 100 (1939). Thanks to Kara Hartzler.

Since "slight acts" do not necessarily constitute the "substantial step" necessary to meet the federal definition of "attempt" that controls for purposes of immigration law, the statute is overbroad and the government bears the burden of proving that person is removable through the modified categorical analysis. Even if the state attempt statute is broader than the federal statute, under the modified categorical analysis a person can still be found removable where the record shows that the person committed an overt act constituting a "substantial step" towards commission of the underlying offense. Criminal defense counsel must keep the record of conviction vague, or describe only a slight act.

The government might argue that the issue is foreclosed by United States v. Sarbia, 367 F.3. 1079, 1082 (9th Cir. 2004), but there are strong arguments as to why Sarbia should not control, since the Ninth Circuit has made clear that its decisions interpreting USSG 4B1.1, like Sarbia, do not apply outside the context of that particular sentence guideline, because Commentary 1 is "not constrained by" the aggravated felony definition found at INA 101(a)(43) or by other statutes. United States v. Shumate, 329 F.3d 1026, 1030 n.5 (9th Cir. 2003); United States v. Vidal, 504 F.3d 1072, 1079 n.12 (9th 2007). As a result of this lack of "constrain[t]" found in USSG 4B1.2, the provision at issue in Sarbia, it is interpreted much more expansively than the definition of aggravated felony found in the Act. For example, the Ninth Circuit considers the list found at USSG 4B1.2, "aiding and abetting, conspiring, and attempting," as "non-exhaustive," and inclusive of other offenses such as solicitation. United States v. Shumate, 329 F.3d 1026, 1030 (9th Cir.2003). The aggravated 3 felony definition found at 8 U.S.C. 1101(a)(43)(U), on the other hand, is read as an exhaustive list, specifically excluding offenses such as solicitation. Leyva-Licea v. I.N.S., 187 F.3d 1147, 1150 (9th Cir. 1999). Sarbia is therefore inapplicable to the question of the definition of attempt found in the aggravated felony definition. INA 101(a)(43)(U), 8 U.S.C. 1101(a)(43)(U). The case which directly controls this Courts decision is Rebilas v. Keisler, which directly interprets the aggravated felony definition of "attempt." Even if Sarbia did apply in the immigration context, it has been overruled. Rebilas v. Keisler, 506 F.3d 1161, 1164 (9th Cir. Nov. 2, 2007). See Attorney General of New York v. Soto-Lopez, 476 U.S. 898, 901 (1986) (recognizing implicit overruling); United States v. Reed, 80 F.3d 1419, 1421-22 (9th Cir. 1996) (same). This conclusion is inevitable because to reconcile the two cases would be to find a meaningful difference between taking "any step" to commit a crime, and making "some act" to commit the crime. It is worth noting that Sarbia has also been implicitly overruled on another of its key holdings. In Sarbia, the Ninth Circuit held that shooting into an inhabited dwelling was a "crime of violence" under the Sentencing Guidelines, citing a 1993 decision holding that a similar California conviction (Penal Code 246) had been held to be a "crime of violence." Sarbia, 367 F.3d at 1088 (citing United States v. Weinert, 1 F.3d 889 (9th Cir. 1993 (per curiam)). In 2007, however, the Ninth Circuit held that shooting into an inhabited dwelling under California law was not categorically a "crime of violence." United States v. Narvaez-Gomez, 489 F.3d 970, 976 (9th Cir. 2007). In so holding, the Ninth Circuit cited neither Weinert nor Sarbia. Nonetheless, Narvaez-Gomez implicitly overruled those cases. Thanks to Rachael Keast.

Other

AGGRAVATED FELONY - ATTEMPT - ATTEMPT TO COMMIT OFFENSE THAT DID NOT MEET DEFINITION OF SEXUAL ABUSE OF A MINOR DID NOT CONSTITUTE AGGRAVATED FELONY
Parrilla v. Gonzales, ___ F.3d ___, 2005 WL 1606506 (July 11, 2005) (even if Washington offense of communicating with a minor for immoral purposes constituted attempt, within the meaning of the aggravated felony definition, INA 101(a)(43)(U), 8 U.S.C. 1101(a)(43)(U), the substantive offense did not categorically constitute sexual abuse of a minor, so the presumed attempt likewise did not constitute an aggravated felony).