Aggravated Felonies

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. 

Another uncommon non-statutory offense, called compounding, consists of “knowingly agreeing to take anything of value upon the agreement or understanding, express or implied, to compound or conceal a crime or to abstain from a prosecution therefor, or to withhold any evidence thereof.”[458]  For purposes of this offense, a person may be prosecuted and convicted of compounding a crime even though the principal in the offense has not been charged, indicted or tried.  Arguably, this offense is like accessory after the fact, since the offense can be considered completely separate from the underlying act.

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 § 3.48(B), supra.  See also Appendix F, 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.

[458] See New Mexico Penal Code § 30-22-6.