Aggravated Felonies

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Aggravated Felonies

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AGGRAVATED FELONY " CRIME OF VIOLENCE " 18 USC 16(b) -- POSSESSION OF BURGLARY TOOLS
United States v. Fish, ___ F.3d ___, 2014 WL 715785 (1st Cir. Feb. 26, 2014) (Massachusetts conviction for possession of burglarious tools, under M.G.L. ch. 266, 49, does not categorically constitute a crime of violence as defined at 18 U.S.C. 16, because it included neither an element of force under (a) nor the substantial risk that violent force would be used under (b)).

AGGRAVATED FELONY " BURGLARY
Descamps v. United States, ___ U.S. ___, ___ (Jun. 20, 2013) (California conviction of burglary, in violation of Penal Code 459 (entry without requiring unlawful entry with intent to commit theft or any felony), is overbroad with respect to the generic federal definition of burglary, for purposes of federal sentence enhancement under the ACCA for a prior burglary conviction, because generic unlawful entry is never an element of 459, a conviction under that statute is never for generic burglary.).

AGGRAVATED FELONY"TAX EVASION"FRAUD OFFENSE
Kawashima v. Holder, 132 S.Ct. 1166 (Feb. 21, 2012) (federal conviction of willfully making a false tax return, in violation of 26 U.S.C. 7206(a), and aiding and assisting in the preparation of a false tax return, under 26 U.S.C. 7206(2), constituted fraud offense aggravated felonies, under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), because they are crimes involv[ing] fraud or deceit in which the loss to the victim(s) exceeds $10,000, even though they are not listed as aggravated felonies under INA 101(a)(43)(M)(ii), 8 U.S.C. 1101(a)(43)(M)(ii), which lists certain tax evasion aggravated felonies).

AGGRAVATED FELONY"FRAUD OFFENSE"AIDING PREPARATION OF A FALSE TAX RETURN
Kawashima v. Holder, 132 S.Ct. 1166 (Feb. 21, 2012) (federal conviction of aiding and assisting in the preparation of a false tax return, under 26 U.S.C. 7206(2), constituted a fraud offense aggravated felony, under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i): We conclude that Mrs. Kawashima's conviction establishes that, by knowingly and willfully assisting her husband's filing of a materially false tax return, Mrs. Kawashima also committed a felony that involved deceit.).

BIA

AGGRAVATED FELONY " RAPE " DEFINITION " REQUIREMENT OF PENETRATION
(the term rape in the aggravated felony definition, INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A), encompasses an act of vaginal, anal, or oral intercourse, or digital or mechanical penetration, no matter how slight, and also requires that the underlying act be committed without consent; lack of consent includes where the victims ability to appraise the nature of the conduct was substantially impaired and the offender had a culpable mental state as to such impairment). NOTE: The BIA suggested, but did not hold, that lack of consent may include inability to consent due to age.

AGGRAVATED FELONY " BURGLARY " HOME INVASION
Matter of Jasso Arangure, 27 I&N Dec. 178 (BIA 2017) (Michigan conviction of home invasion, in violation of M.C.L. 750.110a(2) is a categorical burglary offense for immigration purposes, since the intent to commit the crime need not be at entry, but may also be while remaining or upon exiting, under both the Michigan and generic federal definitions of burglary), following United States v. Quarles, 850 F.3d 836, 840 (6th Cir. 2017).

AGGRAVATED FELONY " SEXUAL ABUSE OF A MINOR " OFFENSE MUST INCLUDE MEANINGFUL AGE DIFFERENTIAL AS AN ELEMENT
Matter of Esquivel-Quintana , 26 I. & N. Dec. 469 (BIA 2015) (California conviction of unlawful intercourse with a minor, in violation of Penal Code 261.5(c), which requires that the minor victim be "more than three years younger" than the perpetrator, categorically constitutes aggravated felony "sexual abuse of a minor" under INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A); However, we clarify that in the context of State statutory rape offenses, a statute that includes 16- or 17-year-olds must also contain a meaningful age differential to constitute sexual abuse of a minor.); clarifying Matter of Rodriguez-Rodriguez, 22 I&N Dec. 991 (BIA 1999), and Matter of V-F-D-, 23 I&N Dec. 859 (BIA 2006). www.justice.gov/eoir/vll/intdec/vol26/3824.pdf NOTE: The BIA refused to apply Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1159 (9th Cir. 2008), to this case, since the case arose from within the Sixth Circuit.

AGGRAVATED FELONY " CRIME OF VIOLENCE " DISCHARGE OF A FIREARM
Matter of Chairez, 26 I&N Dec. 349 (BIA 2014) (Utah conviction for violation of 76-10-508.1(1)(a), discharge of a firearm, is not categorically an aggravated felony crime of violence, since the offense may be committed recklessly).

AGGRAVATED FELONY " CRIME OF VIOLENCE " DISCHARGE OF A FIREARM
Matter of Chairez, 26 I&N Dec. 349 (BIA 2014) (Utah conviction for violation of 76-10-508.1(1)(b) and (c), discharge of a firearm in the direction of a building, person, or vehicle, is categorically an aggravated felony crime of violence).

AGGRAVATED FELONY " THEFT " RECEIPT OF STOLEN PROPERTY
Matter of Sierra, 26 I&N Dec. 288 (BIA 2014) (Nevada conviction for violation of NRS 193.330, 205.273, possession of a stolen vehicle, is not a categorical aggravated felony theft offense under INA 101(a)(43)(G), for immigration purposes, since the statute only requires reason to believe that the property received was stolen, but the generic definition of receipt of stolen property applicable to the aggravated felony definition requires knowledge).

CONVICTION " NATURE OF OFFENSE " ELEMENTS OF OFFENSE " SENTENCE ENHANCEMENT " MILITARY CONVICTION
Matter of Chavez-Alvarez, 26 I. & N. Dec. 274 (BIA Mar. 14, 2014) (an sentencing enhancement element listed in a specification in the Manual for Courts-Martial, that must be pled and proved beyond a reasonable doubt, is the functional equivalent of an element of a criminal offense for immigration purposes).

AGGRAVATED FELONY " CRIME OF VIOLENCE " SODOMY BY FORCE
Matter of Chavez-Alvarez, 26 I. & N. Dec. 274 (BIA Mar. 14, 2014) (military crime of sodomy by force in violation of Uniform Code of Military Justice, article 125, 10 U.S.C. 925, and the Punitive Articles of the MCM relating to sodomy, is a crime of violence under 18 U.S.C. 16).

AGGRAVATED FELONY " RECEIPT OF STOLEN PROPERTY
Matter of Sierra, 26 I & N Dec. 288, 292 (BIA 2014) (Nevada conviction of attempted possession of a stolen vehicle, in violation of Nevada Revised Statute 193.330 and 205.273, was not categorically an aggravated felony as an attempted theft offense, because Nevada law does not require actual knowledge that the property had been stolen, but only reason to believe; aggravated felony theft ground requires intent to deprive, which can be inferred from actual knowledge, but not from reason to believe); citing Matter of Garcia-Madruga, 24 I & N Dec. 436 (BIA 2008). NOTE: For any theft offense in which the mental state can be either knowledge or reason to know or believe, if the record shows that the defendant pled to the latter element, the defendant may be protected against the conviction being considered an aggravated felony. E.g., Massachusetts offense receiving a stolen motor vehicle, under M.G.L. ch. 266 28, only requires a reason to believe mental state.

ADJUSTMENT OF STATUS " ASYLEE
Matter of C-J-H, 26 I. & N. Dec. 284 (BIA 2014) (noncitizen who has already adjusted status from asylee to LPR cannot re-adjust under INA 209(b), as a defense to removal).

AGGRAVATED FELONY " CRIME OF VIOLENCE " 18 USC 16(b) -- ASSAULT WITH A DANGEROUS WEAPON
United States v. Fish, ___ F.3d ___, 2014 WL 715785 (1st Cir. Feb. 26, 2014) (Massachusetts conviction for assault and battery with a dangerous weapon, under M.G.L. ch. 265, 15A, did not categorically constitute a crime of violence, under 18 U.S.C. 16(b), because the minimum conduct punishable under this statute did not create a substantial risk that the defendant would intentionally use physical force against person or property, since the minimum conduct included reckless conduct), applying Leocal v. Ashcroft, 543 U.S. 1 (2004).

AGGRAVATED FELONY " FIREARMS OFFENSES " UNLAWFUL POSSESSION OF AMMUNITION BY CONVICTED FELON " RELATING TO
Matter of Oppedisano, 26 I. & N. Dec. 202 (BIA 2013) (federal conviction of unlawful possession of ammunition by a convicted felon, in violation of 18 U.S.C. 922(g), is an aggravated felony for immigration purposes; the relating to language used in the Act is does not limit the scope of the statute). http://www.justice.gov/eoir/vll/intdec/vol26/3793.pdf

POST CON RELIEF " SENTENCE " IMMIGRATION CONSEQUENCES " REDUCTION OF SENTENCE INEFFECTIVE
Matter of Garcia-Mendoza, unpublished (BIA Feb. 15, 2013) (A200 582 682) (actual confinement of 180 days or more constitutes a statutory bar to showing good moral character, even after state court nunc pro tunc sentence reduction of the sentence imposed to 166 days).

CONVICTION " MUNICIPAL ORDINANCE
Matter of Cuellar-Gomez, 25 I&N Dec. 850, 855 (BIA Jul. 18, 2012) (Kansas conviction of possession of marijuana, in violation of a Wichita municipal ordinance, constituted a conviction for immigration proceedings because the Wichita proceedings required proof beyond a reasonable doubt, even though there was no right to counsel or jury trial), distinguishing Matter of Eslamizar, 23 I. & N. Dec. 684 (BIA Oct. 19, 2004).

AGGRAVATED FELONY " DRUG TRAFFICKING " SECOND POSSESSION CONVICTION
Matter of Cuellar-Gomez, 25 I&N Dec. 850, 861-862 (BIA Jul. 18, 2012) (Kansas conviction of possession of marijuana, after prior conviction of violation of a Wichita municipal ordinance prohibiting possession of marijuana, constituted a drug trafficking aggravated felony conviction, under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), since respondent was charged and convicted in Kansas for recidivist possession of a controlled substance).

AGGRAVATED FELONY " MURDER " MENTAL STATE OF EXTREME RECKLESSNESS SUFFICIENT DESPITE LACK OF INTENT TO KILL
Matter of MW, 25 I&N Dec. 748 (BIA 2012) (Michigan conviction for violation of 750.317 of the Michigan Compiled Laws, second degree murder, is categorically an aggravated felony murder offense for immigration purposes; under the categorical approach, a conviction for the aggravated felony of murder, as defined in INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A), includes a conviction for murder in violation of a statute requiring a showing that the perpetrator acted with extreme recklessness or a malignant heart, notwithstanding that the requisite mental state may have resulted from voluntary intoxication and that no intent to kill was established).

AGGRAVATED FELONY " DRUG TRAFFICKING OFFENSE " DISTRIBUTION OF SMALL AMOUNT OF MARIJUANA
Matter of Castro-Rodriguez, 25 I&N Dec. 698 (BIA 2012) (remanding case to IJ to allow respondent to present factual evidence that Virginia conviction of possession with the intent to give or distribute less than one-half ounce of marijuana, in violation of Va. Rev. Stat. 18.2-248.1(a)(1), involved only gratuitous distribution of a small amount of marijuana); following Matter of Aruna, 24 I&N Dec. 452 (BIA 2008) (the federal felony conspiracy to distribute a controlled substance offense, 21 U.S.C. 841(a)(1), (b)(1)(D), allows for the consideration of evidence outside the record of conviction for the purpose of reducing the felony offense to a misdemeanor); citing United States v. Hamlin, 319 F.3d 666, 670-71 (4th Cir. 2003). NOTE: The BIA relied upon Nijhawan v. Holder, 557 U.S. 29 (2009), to find the circumstance-specific approach is appropriate to determine whether a conviction of possession of marijuana with intent to distribute involved a small amount of marijuana and no remuneration. The BIA stated that the less than 30 grams of marijuana exception, may, in general, serve as a useful guidepost in determining whether an amount is small. Matter of Castro Rodriguez, 25 I&N Dec. at 703.

AGGRAVATED FELONY " OBSTRUCTION OF JUSTICE " ACCESSORY AFTER THE FACT
Matter of Valenzuela Gallardo, 25 I&N Dec. 838 (BIA 2012) (California conviction of accessory after the fact, in violation of Penal Code 32, is an aggravated felony "obstruction of justice" offense if a sentence of one year or more is imposed on any single count). http://www.justice.gov/eoir/vll/intdec/vol25/3758.pdf.

AGGRAVATED FELONY " OBSTRUCTION OF JUSTICE " ACCESSORY AFTER THE FACT
Matter of Valenzuela Gallardo, 25 I&N Dec. 838, 842 (BIA 2012) (California conviction of accessory after the fact, in violation of Penal Code 32, with a sentence of 16 months imprisonment, is a conviction for an aggravated felony under INA 101(a)(43)(S), 8 U.S.C. 1101(a)(43)(S) because it include[s] the element of an affirmative and intentional attempt, motivated by a specific intent, to interfere with the process of justice), quoting Matter of Espinoza, 22 I&N Dec. 889, 894 (BIA 1999); disagreeing with Trung Thanh Hoang v. Holder, 641 F.3d 1157, 1164 (9th Cir. 2011) (BIA requires actual interference with an ongoing criminal proceeding or investigation). Note: The BIA interpreted the obstruction of justice provision more broadly than the Ninth Circuits more restrictive approach, pursuant to Brand X, the Supreme Court decision that allows an agency to issue a reasonable interpretation of a statute within its expertise even after a court has found an earlier agency interpretation unreasonable. Matter of Valenzuela Gallardo, 25 I&N Dec. 838, 840 (BIA 2012), discussing Natl Cable & Telecomms. Assn v. BrandX Servs., 545 U.S. 967 (2005). The question remains whether the Ninth Circuit will conclude that the aggravated felony definition, also used extensively in federal criminal cases, falls exclusively within the purview of the BIA to interpret immigration laws. The Ninth Circuit could also determine the statute is not ambiguous, after employing normal statutory interpretation standards, or that the BIAs interpretation is unreasonable, to justify deference.

AGGRAVATED FELONY " DRUG TRAFFICKING " DELIVERY OF SIMULATED CONTROLLED SUBSTANCE
Matter of Sanchez-Cornejo, 25 I. & N. Dec. 273 (BIA 2010) (Texas conviction of delivery of a simulated controlled substance, as defined by 482.001(4) of the Texas Health and Safety Code, is not an aggravated felony drug trafficking offense because federal law does not punish distribution of a non-controlled substance in place of a real controlled substance; the violation is, however, a controlled substances offense for purposes of triggering removability under INA 237(a)(2)(B)).

AGGRAVATED FELONY " COMMERCIAL BRIBERY " WITNESS BRIBERY
Matter of Gruenangerl, 25 I. & N. Dec. 351, 356 (BIA 2010) (federal conviction of bribery of a public official, for the purpose of influencing official action, in violation of 18 U.S.C. 201(b)(1)(A), is not an offense relating to commercial bribery and is therefore not an aggravated felony under INA 101(a)(43)(R), 8 U.S.C. 1101(a)(43)(R)).

First Circuit

NATURE OF CONVICTION " CATEGORICAL ANALYSIS " MINIMUM CONDUCT " BURDEN
Sauceda v. Lynch, ___ F.3d ___ (1st Cir. Apr. 22, 2016) (a non-citizen can qualify for cancellation of removal without having to prove affirmatively that a conviction wasn't for a disqualifying conviction: "We hold that since all the Shepard documents have been produced and the modified categorical approach using such documents cannot identify the prong of the divisible Maine statute under which Peralta Sauceda was convicted, the unrebutted Moncrieffe presumption applies, and, as a matter of law, Peralta Sauceda was not convicted of a "crime of domestic violence."). NOTE: This case addresses the issue of who wins a divisible statute argument when the record of conviction is unclear which part of the statute the noncitizen was convicted under. The Ninth Circuit went back and forth on this issue for several years. See Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1130-31 (9th Cir. 2007); Young v. Holder, 697 F.3d 976, 988"90 (9th Cir.2012) (en banc). Ultimately, however, the Ninth Circuit left this question open following Moncrieffe. See Almanza Arenas v. Lynch, 815 F.3d 469 (9th Cir. 2016). This appears to be the first Circuit Court decision to definitively apply Moncrieffe to find that the categorical (and modified categorical) analysis is a question of law, and does not depend upon whether the Government or the Respondent bears the burden of proof.

AGGRAVATED FELONY " CRIME OF VIOLENCE " ASSAULT WITH A DEADLY WEAPON
United States v. Whindleton, 797 F.3d 105 (1st Cir. Aug. 10, 2015) (Massachusetts conviction for conviction for assault with a deadly weapon under Massachusetts General Laws ch. 265, 15B(b) [[w]hoever, by means of a dangerous weapon, commits an assault upon another.], constitutes a violent felony under the ACCA); following United States v. Am, 564 F.3d 25, 33 & n. 9 (1st Cir. 2009) (an ADW conviction under under Massachusetts General Laws ch. 265, 15B(b) clearly satisfies the ACCA's Force Clause). Note: At issue in this case is whether the Massachusetts offense of assault with a dangerous weapon (ADW), Mass. Gen. L. ch. 265, 15B(b), has an element the use, attempted use, or threatened use of physical force as defined in the federal Armed Career Criminal Act (ACCA). This question is relevant under immigration law, because the aggravated felony definition of crime of violence includes identical language. 18 U.S.C. 16(a). Whindleton, supra, at 112. Immigration attorneys should note that the First Circuit may have left open an argument regarding the degree of intent necessary for an ADW conviction and whether that intent is sufficient for a violent felony or a crime of violence. See Whindleton at n.9 & n.12.

AGGRAVATED FELONY " CRIME OF VIOLENCE " ASSAULT " INTENT
Villanueva v. Holder, 784 F.3d 51 (1st Cir. Apr. 24, 2015) (Connecticut conviction for assault in the third degree, under Conn. Gen.Stat. 53a"61, did not constitute a crime of violence aggravated felony, under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), where the record of conviction did not indicate the subdivision under which the noncitizen was convicted, since two of the three sections involved only recklessness or negligence which are insufficient intent to constitute a crime of violence under 18 U.S.C. 16).

AGGRAVATED FELONY " CRIME OF VIOLENCE " ASSAULT AND BATTERY
United States v. Martinez, ___ F.3d ___, 2014 U.S. App. LEXIS 15173 (1st Cir. Aug. 6, 2014) (Massachusetts convictions for assault and battery and simple assault, under Mass. Gen. L. ch. 265, 13A, did not categorically constitute crimes of violence under the Federal Sentencing Guidelines, U.S.S.G. 4B1.2(a), even though the defendant admitted having struck his girlfriend, because the term struck covers conduct that is neither intentional nor involves violent force). Note: The defendant did not raise a claim that the assault and battery statute was not divisible, so no resort to the record of conviction was proper; therefore, the court did not reach that issue. Immigration attorneys should argue that under Martinez, Massachusetts simple assault can never be an aggravated felony as a crime of violence or a crime of domestic violence under INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i). Similarly, immigration counsel should argue that Massachusetts assault and battery is not a crime of violence " both because the record of conviction does not clearly and necessarily establish a conviction for harmful battery and because (most importantly) assault and battery is not a divisible offense and therefore should never be considered a crime of violence.

AGGRAVATED FELONY " CRIME OF VIOLENCE " 18 USC 16(b) -- BREAKING AND ENTERING
United States v. Fish, ___ F.3d ___, 2014 WL 715785 (1st Cir. Feb. 26, 2014) (Massachusetts conviction for breaking and entering with intent to commit a felony, M.G.L. ch. 266, 16, 18, did not categorically constitute a crime of violence, under 18 U.S.C. 16(b), because the minimum conduct punishable did not create a substantial risk that the defendant would use physical force against person or property, since the minimum conduct included nonviolent entries of rarely-occupied structures through unlocked doors or windows,; rejecting the governments argument that the court should look only to the typical case charged under the statute). NOTE: A conviction for breaking and entering a building with a sentence of imprisonment of one year or more, suspended or imposed, remains an aggravated felony under a different provision of the aggravated felony statute. 8 U.S.C. 1101(a)(43)(G) (theft offense or burglary offense with sentence of one year or more is aggravated felony); see Taylor v. United States, 495 U.S. 575, 599 (1990) (burglary defined as unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime).

AGGRAVATED FELONY " CRIME OF VIOLENCE " 18 USC 16(a) -- ASSAULT WITH A DANGEROUS WEAPON
United States v. Fish, ___ F.3d ___, 2014 WL 715785 (1st Cir. Feb. 26, 2014) (Massachusetts conviction for assault and battery with a dangerous weapon, under M.G.L. ch. 265, 15A, did not categorically constitute a crime of violence, under 18 U.S.C. 16(a), because the minimum conduct punishable under this statute does not have as an element the use of violent force, but instead covers even the slightest touching with a dangerous weapon).

AGGRAVATED FELONY " CRIME OF VIOLENCE " 18 USC 16(a) -- POSSESSION OF BURGLARY TOOLS
United States v. Fish, ___ F.3d ___, 2014 WL 715785 (1st Cir. Feb. 26, 2014) (Massachusetts conviction for possession of burglarious tools, under M.G.L. ch. 266, 49, does not categorically constitute a crime of violence as defined at 18 U.S.C. 16, because it included neither an element of force under (a) nor the substantial risk that violent force would be used under (b)).

AGGRAVATED FELONY " CRIME OF VIOLENCE " 18 USC 16(b) -- POSSESSION OF BURGLARY TOOLS
United States v. Fish, ___ F.3d ___, 2014 WL 715785 (1st Cir. Feb. 26, 2014) (Massachusetts conviction for possession of burglarious tools, under M.G.L. ch. 266, 49, does not categorically constitute a crime of violence as defined at 18 U.S.C. 16, because it included neither an element of force under (a) nor the substantial risk that violent force would be used under (b)).

AGGRAVATED FELONY " SEXUAL ABUSE OF A MINOR " CHILD ENDANGERMENT
Campbell v. Holder, 698 F.3d 29, *31 (1st Cir. Oct. 19, 2012) (Connecticut conviction of risk of injury to a minor under of the Connecticut General Statutes 53"21(a)(1) (penalizing [a]ny person who ... wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child...], does not categorically constitute aggravated felony sexual abuse of a minor, under INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A), since the statute includes non-sexual acts such as providing alcohol to a minor).

CONVICTION " STATUTORY DEFINITION " FINE
Vivieros v. Holder, ___ F.3d ___ (1st Cir. Jun. 25, 2012) (Massachusetts conviction of shoplifting, under Mass. Gen. Laws ch. 266, 30A, constituted a conviction for immigration purposes, under INA 101(a)(48)(A), 8 U.S.C. (a)(48)(A), where the defendant pleaded guilty and received a fine of $250, which was later vacated, so the ultimate disposition was a guilty finding with no fines or costs, because a formal judgment of guilt had been entered and the fine was not vacated on a ground of legal invalidity). Note: This decision is mistaken. Its reasoning is as follows: The petitioner endeavors to alter this reality by insisting that the subsequent vacation of the $250 fine transmogrifies his case into one in which no sentence was ever imposed. This attempt to rewrite history cannot survive scrutiny. We previously have held that when an alien's conviction is vacated for reasons other than procedural or substantive error, he remains convicted for immigration purposes. See, e.g., Rumierz v. Gonzales, 456 F.3d 31, 39"40 (1st Cir.2006); Herrera"Inirio v. INS, 208 F.3d 299, 305 (1st Cir.2000). Other courts uniformly have hewed to this rationale. See, e.g., Dung Phan v. Holder, 667 F.3d 448, 452"53 (4th Cir.2012); Poblete Mendoza v. Holder, 606 F.3d 1137, 1141 (9th Cir.2010); Saleh v. Gonzales, 495 F.3d 17, 24"25 (2d Cir.2007); Cruz v. Att'y Gen. of U.S., 452 F.3d 240, 245 (3d Cir .2006). It necessarily follows that the vacation of a fine for reasons unrelated to procedural or substantive error does not dissipate the underlying conviction for purposes of section 1227(a)(2)(A)(ii). The petitioner's case falls within this taxonomy. There is no indication in the record that his fine for shoplifting was vacated on account of either procedural or substantive error. To the contrary, the state court docket reflects that roughly five months after the fine was imposed, it was waived on recommendation of [the] Probation Dept. When the petitioner's counsel sought clarification regarding the final disposition, the state court wrote that the docket should reflect [a] guilty finding with no fines or costs. The implication of these docket entries is pellucid: the state court, exercising clemency, waived the petitioner's fine at the behest of his probation officer. There is not the slightest hint that the waiver came about because of some legal infirmity in the shoplifting proceedings. Accordingly, the shoplifting conviction remains a formal judgment of guilt, 8 U.S.C. 1101(a)(48)(A), and endures for immigration law purposes. This is mistaken because it confuses the requirements for an effective vacatur of a conviction (a ground of legal invalidity), with an alteration in the sentence, which is effective for immigration purposes regardless of the reason for the sentence change. Compare Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003), with Matter of Cota-Vargas, 23 I. & N. Dec. 849 (BIA 2005). The consistent rule, until now, has been that it is the final state sentence that is binding on the immigration authorities, regardless of any reason given for a change in the sentence.

JUDICIAL REVIEW " PETITION FOR REVIEW " SUA SPONTE MOTION TO REOPEN
Matos-Santana v. Holder, 660 F.3d 91, 2011 WL 5176795 (1st Cir. Nov. 2, 2011) (Court of Appeals lacked jurisdiction to review claim that BIA abused its discretion in not sua sponte entertaining his untimely motion to reopen).

Second Circuit

AGGRAVATED FELONY " SEXUAL ABUSE OF A MINOR " FIRST DEGREE SEXUAL ABUSE
Flores v. Holder, ___ F.3d ___, 2015 WL 795212 (2d Cir. Feb. 26, 2015) (New York conviction of first-degree sexual abuse under N.Y. Penal Law 130.65, which contains four different offenses, each with different elements, is a divisible statute, permitting consideration of the record of conviction under the modified categorical analysis to determine which offense was the offense of conviction).

AGGRAVATED FELONIES " FIREARMS OFFENSES " POSSESSION OF AMMUNITION
Oppedisano v. Holder, 769 F.3d 147 (2d Cir. Oct. 8, 2014) (federal conviction for the unlawful possession of ammunition, under 18 U.S.C. 922(g)(1), qualifies as an aggravated felony under INA 101(a)(43)(E)(ii), 8 U.S.C. 1101(a)(43)(E)(ii)).

AGGRAVATED FELONIES " DRUG TRAFFICKING -- SALE OF A CONTROLLED SUBSTANCE " SOLICITATION
Pascual v. Holder, 723 F.3d 156, ___ (2d Cir. July 9, 2013) (per curiam) (New York conviction for sale of a controlled substance, under New York Penal Law 220.39, is categorically an illicit trafficking in a controlled substance type of aggravated felony even though the conviction merely involved an attempt to sell: Unlike the Connecticut statute, NYPL 220.39 does not criminalize mere offers (or fraudulent offers) to sell narcotics. Under New York law, the offer must be bona fide, and a bona fide offer is one that is made with the intent and ability to follow through on the transaction.); distinguishing United States v. Savage, 542 F.3d 959, 965 (2d Cir. 2008) (fraudulent offers to sell are not offers for purposes of sentencing enhancements under the Sentencing Guidelines).

AGGRAVATED FELONY " SALE OF A CONTROLLED SUBSTANCE " SOLICITATION
Pascual v. Holder, 707 F.3d 403,(2d Cir. Feb. 19, 2013) (New York conviction of third-degree criminal sale of a controlled substance, under N.Y. Penal Law 220.39(1), constitutes an aggravated felony, rejecting argument that this statute is not categorically an aggravated felony because statutes that punish offers to sell, see NYPL 220.00(1), are not drug trafficking crimes under the CSA. Davila v. Holder, 381 Fed.Appx. 413, 416 (5th Cir.2010). This Court, however, has held that distribution, within the meaning of 21 U.S.C. 841(a)(1) does not require a sale to take place: The word distribute means to deliver, [21 U.S.C.] 802(11); and deliver means the actual, constructive, or attempted transfer of a controlled substance, [21 U.S.C.] 802(8). United States v. Wallace, 532 F.3d 126, 129 (2d Cir. 2008) (emphasis added). Therefore, even if Pascual did no more than offer or attempt to sell cocaine, the state offense would be conduct punishable as a federal felony, thus rendering it an aggravated felony.).

AGGRAVATED FELONY " FRAUD OFFENSE " PLEA DID NOT ESTABLISH OFFENSE WAS COMMITTED WITH SPECIFIC INTENT TO DEFRAUD
Akinsade v. Holder, 678 F.3d 138 (2d Cir. May 1, 2012) (federal conviction for embezzlement by a bank employee under 18 U.S.C. 656, did not categorically constitute a fraud aggravated felony, for purposes of deportation, where none of the facts to which the petitioner actually and necessarily pleaded to establish whether that offense was committed with a specific intent to defraud).

AGGRAVATED FELONY " CRIME OF VIOLENCE " SECOND-DEGREE ASSAULT
Morris v. Holder, 676 F.3d 309 (2d Cir. Apr. 23, 2012) (New York conviction for second-degree assault under New York Penal Law 120.05(2) categorically constitutes a crime of violence for the purposes of 18 U.S.C. 16(b), and is therefore an aggravated felony under INA 101(a)(43)(F), 8 U.S.C. 1101 (a)(43)(F), finding argument that the offense is not a crime of violence under 18 U.S.C. 16(a) because the crime does not require "physical force" to be inopposite because 16(b) does not require use of physical force).

AGGRAVATED FELONY " OBSTRUCTION OF JUSTICE " WITNESS TAMPERING
Higgins v. Holder, 677 F.3d 97 (2d Cir. Apr. 19, 2012) (Connecticut conviction for witness tampering under General Statutes 53a-151 ["if, believing that an official proceeding is pending or about to be instituted, he induces or attempts to induce a witness to testify falsely, withhold testimony, elude legal process summoning him to testify or absent himself from any official proceeding,"] categorically constituted an "offense relating to obstruction of justice" under INA 101(a)(43)(S), 8 U.S.C. 1101(a)(43)(S), and thus was an aggravated felony that precluded LPR cancellation). Note: The facts involved asking the victim to say "nothing happened" if she talked to the police.

RELIEF " ADJUSTMENT OF STATUS " RELEASE ON CONDITIONAL PAROLE PENDING REMOVAL PROCEEDINGS IS NOT PAROLED INTO UNITED STATES SO AS TO BE ELIGIBLE FOR ADJUSTMENT
Cruz-Miguel v. Holder, ___ F.3d ___, 2011 WL 1565847 (2d Cir. Apr. 27, 2011)(an alien released on conditional parole pending resolution of ongoing removal proceedings is not thereby paroled into the United States so as to be eligible for adjustment of status).

Third Circuit

AGGRAVATED FELONY " FIREARMS AND DESTRUCTIVE DEVICES " ARSON " FEDERAL JURISDICTIONAL ELEMENT
Bautista v. Atty Gen. of the U.S., 744 F.3d 54 (3d Cir. Feb. 28, 2014) (New York conviction of attempted arson in the third degree, in violation of Penal Law 110 and 150.10, did not categorically constitute a match for the elements of 18 U.S.C. 844(i), and is therefore not an aggravated felony under INA 101(a)(43)(E)(i), 8 U.S.C. 1101(a)(43)(E)(i), because the New York arson statute does not require the federal jurisdictional element that the object of the arson be used in interstate commerce, which the Supreme Court has found to be a critical and substantive element of that arson offense). The court reasoned as follows: We must assume that Congress was aware of the limits imposed by the Commerce Clause on the reach of the statutes it passes and that it restricted the breadth of 101(a)(43)(E) with the substantive constraints of the included jurisdictional elements in mind. See United States v. Am. Bldg. Maint. Indus., 422 U.S. 271, 279"80, 95 S.Ct. 2150, 45 L.Ed.2d 177 (1975) (comparing Congress's use of in commerce versus affected commerce to show that Congress is aware of its Commerce Clause power and the extent to which it asserts that power in drafting statutes). We cannot undermine the categorical approach and Congress's deliberate choice to include 844(i), rather than generic arson, in 101(a)(43)(E)(i). Further, were we to ignore the jurisdictional element in our categorical approach to 844(i), as the BIA has here, we would be characterizing a state conviction for arson of the intrastate house in Jones as an aggravated felony described in 844(i), when the Supreme Court clearly excised the arson of such intrastate objects from the scope of that federal statute. Id. at 64-66.

AGGRAVATED FELONY " DRUG TRAFFICKING " FEDERAL FOOD, DRUG, AND COSMETIC ACT VIOLATIONS
Borrome v. Attorney General of the United States, 687 F.3d 150 (3d Cir. Jul. 18, 2012) (federal conviction for unauthorized wholesale distribution in interstate commerce of prescription drugs, in violation of 21 U.S.C. 331(t), 353(e), is not a drug trafficking aggravated felony).

AGGRAVATED FELONY " FRAUD OR DECEIT " LOSS TO THE VICTIM
Singh v. Att'y General, 677 F.3d 503 (3d Cir. Apr. 16, 2012) (federal conviction of knowingly making a false statement under penalty of perjury in a bankruptcy proceeding in violation of 18 U.S.C. 152(3), did not trigger removal-deportation as an aggravated felony fraud conviction, because government failed to show that actual loss to the victim exceeded $10,000.00). NOTE: This case agrees with Pierre v. Holder 588 F.3d 767 (2d Cir. 2009), in finding that to be a fraud or deceit aggravated felony, there must be a actual loss, rather than merely an intended or attempted a loss, in excess of $10,000. The court suggests, however, that the government should have charged the respondent under INA 101(a)(43)(U), 8 U.S.C. 1101(a)(43)(U), to capture intended loss.

AGGRAVATED FELONY " FRAUD OR DECEIT " PERJURY
Singh v. Att'y General, 677 F.3d 503, 513 (3d Cir. Apr. 16, 2012) (federal conviction of knowingly making a false statement under penalty of perjury in a bankruptcy proceeding, in violation of 18 U.S.C. 152(3), is a deceit offense, for aggravated felony purposes, where the loss attributable to the conviction is in excess of $10,000).

AGGRAVATED FELONY " FRAUD OR DECEIT " PERJURY
Singh v. Att'y General, 677 F.3d 503 (3d Cir. Apr. 16, 2012) (federal conviction of knowingly making a false statement under penalty of perjury in a bankruptcy proceeding in violation of 18 U.S.C. 152(3), could properly be charged in removal proceedings either as an aggravated felony perjury offense, under INA 101(a)(43)(S), or as an offense involving fraud or deceit under INA 101(a)(43)(M)(i)).

AGGRAVATED FELONY " ATTEMPT
Singh v. Att'y General, 677 F.3d 503, 518 (3d Cir. Apr. 16, 2012) (Government must charge attempt under INA 101(a)(43)(U) in order to prevail on an "attempt" theory: "This is important because Singh has a due process right to receive notice of [t]he charges against [him] and the statutory provisions alleged to have been violated. 8 U.S.C. 1229(a); see also United States v. Torres, 383 F.3d 92, 104 (3d Cir.2004) (stating that, under the Constitution, aliens have right to receive notice of the charges against them and a fair opportunity to be heard). Further, since removability under (U) would involve questions that neither Singh nor this Court have had an opportunity to address, it appears that a sua sponte invocation of (U) at this late stage in the litigation would prejudice Singh's rights.").

ADMISSION"VISA WAIVER PROGRAM
Vera v. Atty General, 672 F.3d 187 (3d Cir. Mar. 1, 2012) (court may presume visa waiver entrant executed the statutorily required waiver of her right to challenge removal; even if waiver was not signed or invalid, prejudice must also be shown).

Fourth Circuit

AGGRAVATED FELONY " FIREARMS OFFENSES " FIRST-DEGREE ARSON
Espinal-Andrades v. Holder, ___ F.3d ___, 2015 WL 268528 (4th Cir. Jan. 22, 2015) (Maryland conviction of first-degree arson, in violation of Md.Code Ann., Crim. Law 6"102, qualified as an aggravated felony under INA 101(a)(43)(E), 8 U.S.C. 1101(a)(43)(E), because the elements are identical to the elements of the federal arson statute, 18 U.S.C. 844(i), which is listed under this aggravated felony definition, except for the interstate commerce element, which Congress did not intend to bar inclusion of a state offense in the aggravated felony definition); rejecting contrary analysis of Bautista v. Attorney Gen. of U.S., 744 F.3d 54 (3d Cir. 2014).

AGGRAVATED FELONY " THEFT OFFENSES " UNAUTHORIZED USE OF A MOTOR VEHICLE " DEFINITION OF THEFT
Castillo v. Holder, ___ F.3d ___, ___, 2015 WL 161952 (4th Cir. Jan. 14, 2015) (Virginia conviction of unauthorized use of a motor vehicle, in violation of Virginia Code 18.2"102 [take, drive or use any ... vehicle ... not his own, without the consent of the owner [ ] and in the absence of the owner, and with intent temporarily to deprive the owner [ ] of his possession [ ], without intent to steal the same, shall be guilty], did not categorically qualify as an aggravated felony theft offense, under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), because the full range of conduct covered by the Virginia crime of unauthorized use can and do arise based on circumstances in which the defendant's use of property deviates only slightly from the specific scope of consensual use, resulting in an insignificant effect on ownership interests. [Footnote omitted] These circumstances stand in stark contrast to crimes involving the intentional, nonconsensual takings that typically involve significant impairment of ownership rights and damage to the property as described by the BIA in its elaboration of the term theft offense. See VZS, 22 I. & N. Dec. at 1349.); quoting Overstreet v. Commonwealth, 17 Va.App. 234, 435 S.E.2d 906, 908 (Va.Ct.App.1993).

AGGRAVATED FELONY " CRIME OF VIOLENCE " RESISTING ARREST
United States v. Aparicio-Soria, 740 F.3d 152 (4th Cir. Jan. 14, 2014) (en banc) (Maryland conviction of resisting arrest, in violation of Md. Code, Crim. Law 9"408(b)(1) [[a] person may not intentionally ... resist a lawful arrest.], does not qualify categorically as a "crime of violence" within the meaning of the residual force clause of U.S.S.G. 2L1.2(b)(1)(A), because it does not have as an element the use, attempted use, or threatened use of physical force against the person of another).

AGGRAVATED FELONY " CRIME OF VIOLENCE " SECOND-DEGREE ASSAULT
United States v. Royal, 731 F.3d 333 (4th Cir. Oct. 1, 2013) (Maryland conviction for second-degree assault, in violation of Md. Code, Crim. Law 3"203(a), did not constitute a predicate violent felony under the Armed Career Criminal Act, because the Maryland offense was a facially indivisible statute, i.e., one that does not set out elements of the offense in the alternative, but which may nevertheless broadly criminalize qualitatively different categories of conduct; Maryland courts do not require unanimity on whether the offense was committed by offensive physical contact or infliction of physical harm.).

AGGRAVATED FELONY " CRIME OF VIOLENCE " CHILD ABUSE
United States v. Gomez, 690 F.3d 194 (4th Cir. Aug. 10, 2012) (Maryland conviction of child abuse, in violation of Maryland Code 1957, Article 27, 35C, was not a crime of violence for illegal re-entry sentencing purposes because the offense could be committed without use of force).

AGGRAVATED FELONY " BURGLARY
United States v. Bonilla, 687 F.3d 188 (4th Cir. Jul. 17, 2012) (Texas conviction for burglary, in violation of Texas Penal Code 30.02(a)(3), constitutes a crime of violence for illegal reentry sentencing purposes, because it substantially corresponds to the elements of generic burglary as outlined in Taylor v. United States, notwithstanding that defendant may not have formulated his intent prior to the unlawful entry).

Fifth Circuit

RELIEF " ASYLUM " REINSTATEMENT
Ramirez Mejia v. Lynch, __ F.3d __ (5th Cir. Jul. 21, 2015) (noncitizens whose removal orders are reinstated following illegal re-entry into the United States may not apply for asylum, since asylum is a form of relief for purposes of the bar to relief under INA 1231(a)(5)), agreeing with Herrera"Molina v. Holder, 597 F.3d 128, 139 (2d Cir. 2010).

AGGRAVATED FELONY " CRIME OF VIOLENCE " MANSLAUGHTER
United States v. Garcia-Perez, ___ F.3d ___, 2015 WL 753759 (5th Cir. Feb. 23, 2015) (Florida conviction of manslaughter, in violation of Florida Statute 782.07, did not qualify as a crime of violence under United States Sentencing Guideline 2L1.2(b)(1)(A), because Florida manslaughter conviction does not require proof of force, and my be committed with negligent intent).

AGGRAVATED FELONY " FIREARMS " FRAUDLENT PURCHASE OF FIREARMS FOR EXPORT
Franco-Casasola v. Holder, __ F.3d __ (5th Cir. Oct. 23, 2014) (federal conviction for violation of 18 U.S.C. 554(a), fraudulent purchase of firearms for export, is a divisible statute, as a target offense where the indictment must specify, and the prosecutor must prove, the underlying offense; record established aggravated felony firearms trafficking offense since the indictment specified a firearms trafficking offense).

AGGRAVATED FELONY " THEFT OFFENSES " THEFT WITHOUT EFFECTIVE CONSENT
United States v. Rodriguez-Salazar, 768 F.3d 437 (5th Cir. Sept. 30, 2014) (Texas conviction of theft [appropriation of property without effective consent of the owner, where consent to temporary possession is not effective if it was induced by deception or coercion], under Penal Code 31.03(b)(1), is categorically an aggravated felony theft offense under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G) for immigration purposes). NOTE: The analysis presented in this decision is short and not very clear.

AGGRAVATED FELONIES " CONSPIRACY " CONSPIRACY TO COMMIT MURDER IS AGGRAVATED FELONY
United States v. Pascacio-Rodriguez, 749 F.3d 353 (5th Cir. Apr. 11, 2014) (Nevada conviction for violation of N.R.S. 199.480, 200.010, 200.030, conspiracy to commit murder, is a categorical crime of violence for illegal re-entry sentencing guidelines purposes since the generic federal definition of conspiracy to commit murder does not require an overt act). NOTE: The court here distinguished between conspiracy to commit murder from other forms of conspiracy, finding that, even under federal criminal law, there are varying definitions of conspiracy, and the court must look to the underlying offense to determine which generic definition of conspiracy applies.

AGGRAVATED FELONY " CRIMES OF VIOLENCE " ASSAULT WITH DEADLY WEAPON
United States v. Carrasco-Tercero, ___ F.3d ___, 2014 WL 983180 (5th Cir. Mar. 13, 2014) (New Mexico conviction of aggravated assault with a deadly weapon, under N.M. Stat. 30"3"2, was a crime of violence for illegal reentry sentencing purposes, notwithstanding that assault N.M. Stat. 30-3-1 includes the use of insulting language toward another impugning his honor, delicacy or reputation.; that New Mexico did not have approved jury instructions for an aggravated assault crime predicated on insulting language, combined with the fact that Carrasco"Tercero has presented no instance where a defendant has been charged with such an offense or where a New Mexico court has mentioned it as a possibility, leads this court to conclude that New Mexico does not in fact recognize this theory of aggravated assault.); disagreeing with United States v. Rede"Mendez, 680 F.3d 552, 557-560 (6th Cir.2012) (New Mexico conviction of aggravated assault, under N.M. Stat. 30"3"2, was not a crime of violence, because assault under N.M. Stat. 30-3-1 included the use of insulting language toward another impugning his honor, delicacy or reputation.).

AGGRAVATED FELONY " DRUG TRAFFICKING " DELIVERY OF COCAINE
Sarmientos v. Holder, 742 F.3d 624 (5th Cir. Feb. 12, 2014) (Florida conviction of delivery of cocaine, in violation of Florida Statute 893.13(1)(a)(1)(sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance), is not a categorical aggravated felony drug trafficking offense, since Florida statute does not require knowledge of the illicit nature of the controlled substance, while federal offense requires knowledge of the illicit nature of the substance); see State v. Adkins, 96 So.3d 412, 415"16 (Fla. 2012) (explaining that knowledge of the illicit nature of the controlled substance is no longer an element of the Florida crime that the prosecution must prove beyond a reasonable doubt).

RELIEF " ADJUSTMENT OF STATUS " ASYLEE WHOSE STATUS WAS TERMINATED MAY APPLY FOR ADJUSTMENT OF STATUS
Siwe v. Holder, 742 F.3d 603 (5th Cir. Feb. 6, 2014) (an alien whose asylum has been terminated is not prohibited from applying for adjustment of status).

AGGRAVATED FELONY " CONSPIRACY " OVERT ACT
United States v. Rodriguez-Escareno, 700 F.3d 751 (5th Cir. Nov. 1, 2012) (conspiracy for purposes of U.S.S.G. 2L1.2(b)(1)(A)(i), does not require an overt act, where the conviction falls within 21 U.S.C. 846 (attempt and conspiracy)).

AGGRAVATED FELONY " CRIME OF VIOLENCE " HIGH SPEED FLIGHT
United States v. Vargas-Soto, 700 F.3d 180 (5th Cir. Oct. 24, 2012) (Texas conviction for evading arrest using a motor vehicle, in violation of Tex. Penal Code Ann. 38.04(b)(1), qualified as an aggravated felony crime of violence); following United States v. Sanchez"Ledezma, 630 F.3d 447, 451 (5th Cir. 2011) (same), cert. denied, ___ U.S. ___, 131 S.Ct. 3024, 180 L.Ed.2d 851 (2011).

AGGRAVATED FELONY " CRIME OF VIOLENCE " AGGRAVATED ASSAULT
United States v. Esparza-Perez, 681 F.3d 228 (5th Cir. May 14, 2012) (Arkansas conviction of aggravated assault [[e]ngag[ing] in conduct that creates a substantial danger of death or serious physical injury to another person.] is not a crime of violence under the residual clause of USSG 2L1.2, because the statute does not require any contact or injury or attempt or threat of offensive contact or injury, thus did not have as an element "the use, attempted use, or threatened use of physical force against the person of another).

AGGRAVATED FELONY " CRIME OF VIOLENCE " AGGRAVATED ASSAULT
United States v. Esparza-Perez, 681 F.3d 228 (5th Cir. May 14, 2012) (Arkansas conviction of aggravated assault, in violation of Ark. Code 5-13-204(a)(1), is not a crime of violence for illegal re-entry sentencing purposes, under U.S.S.G. 2L1.2 cmt. n.1(B)(iii), because it does not require proof of an assault as that crime is generally defined"i.e., as an offense that involves the use, attempted use, or threatened use of offensive contact against another person).

AGGRAVATED FELONY"CRIME OF VIOLENCE"SEXUAL ACTIVITY WITH A MINOR
United States v. Chavez-Hernandez, 671 F.3d 494 (5th Cir. Feb. 13, 2012) (Florida conviction for sexual activity with a minor, in violation of Florida Statute 794.05, was not a crime of violence for illegal re-entry sentencing purposes, because state statute applied to 17-year-olds; defense counsel's admission at sentence that victim was 14 years of age established victim's status as a minor under the federal standard).

AGGRAVATED FELONY"CRIME OF VIOLENCE"DOMESTIC ASSAULT AND BATTERY
United States v. Miranda-Ortegon, 670 F.3d 661 (5th Cir. Feb. 10, 2012) (Oklahoma conviction for domestic assault and battery, in violation of Okla. Stat. tit. 21, 644C [[a]ny person who commits an assault and battery against a current or former spouse ... [or] a child ... shall be guilty of domestic abuse.], did not constitute an aggravated felony crime of violence for illegal re-entry sentencing purposes because the elements of the offense require only the slightest touching is necessary to constitute the force or violence element of battery.); quoting Steele v. State, 778 P.2d 929, 931 (Okla.Crim.App.1989); see United States v. Smith, 652 F.3d 1244, 1246 (10th Cir.2011) (Oklahoma assault-and-battery offense did not fall within the first prong of the Armed Career Criminal Act [has as an element the use, attempted use, or threatened use of physical force against the person of another, 18 U.S.C. 924(e)(2)(B)(i)]); see Johnson v. United States, """ U.S. """", 130 S.Ct. 1265, 1269"71, 176 L.Ed.2d 1, (2010) (holding that Florida felony battery conviction was not a violent felony under 18 U.S.C. 924(e)(1)(2)(B)(i), because the offense's elements are satisfied by any physical contact, no matter how slight (quotation marks and internal citation omitted)).

AGGRAVATED FELONY " CRIME OF VIOLENCE " BURGLARY
United States v. Martinez-Garcia, 625 F.3d 196 (5th Cir. Oct. 27, 2010) (Georgia conviction of burglary, in violation of Ga.Code Ann. 16-7-1(a), constituted the Guidelines' enumerated crime of violence of burglary of a dwelling, for purposes of illegal reentry sentencing, because the term dwelling within the Georgia burglary statute comports with the ordinary, common meaning of that term, and does not now -- though it once did -- include structures within the cartilage); distinguishing United States v. Gomez-Guerra, 485 F.3d 301, 303-304 (5th Cir. 2007) (The ordinary, contemporary, common meaning of burglary of a dwelling does not extend to the grounds around the dwelling, and demands an entry into or remaining in the dwelling. . . . If a state burglary statute may be violated by entry only into the curtilage, a conviction under that statute is not a crime of violence. [internal quotes omitted]).

AGGRAVATED FELONY " CRIME OF VIOLENCE " SOLICITATION TO COMMITT ASSAULT
United States v. Mendez-Casarez, 624 F.3d 233 (5th Cir. Oct. 15, 2010) (North Carolina conviction of solicitation to commit assault with a deadly weapon inflicting serious injury, in violation of the common-law definition of North Carolina law, see State v. Richardson, 100 N.C.App. 240, 395 S.E.2d 143, 147-48 (1990), constituted a crime of violence for illegal reentry sentencing purposes, because the list of predicate crimes of violence was not exhaustive; solicitation is sufficiently similar to conspiracy, which is one of the enumerated offenses in the list; the list was not subject to rule of lenity; the non-exhaustive interpretation did not render Guideline vague); United States v. Cornelio-Pena, 435 F.3d 1279, 1288 (10th Cir. 2006) (Arizona conviction for solicitation to commit burglary of a dwelling constituted a crime of violence for the purposes of U.S.S.G. 2L1.2(b)(1)(A)(ii)); United States v. Shumate, 329 F.3d 1026, 1031 (9th Cir.2003) (Oregon conviction for solicitation of delivery of cocaine constituted a controlled substance offense for the purposes of U.S.S.G. 4B1.1(a), which includes aiding and abetting, conspiring, and attempting to commit such an offense, U.S.S.G. 4B1.2 cmt. n. 1); United States v. Dolt, 27 F.3d 235, 240 (6th Cir.1994) (Florida conviction for solicitation to traffic in cocaine did not constitute a controlled substance offense for the purposes of U.S.S.G. 4B1.1(a)); see United States v. Liranzo, 944 F.2d 73, 79 (2d Cir.1991) (New York conviction for criminal facilitation of the sale of cocaine did not constitute a controlled substance offense for the purposes of U.S.S.G. 4B1.1(a)).

AGGRAVATED FELONY " OBSTRUCTION OF JUSTICE " ACCESSORY AFTER THE FACT
United States v. Gamboa-Garcia, ___ F.3d ___ (5th Cir. Sept. 22, 2010) (Idaho convictions for violation of Idaho Code 18-205, for being accessory after the fact to murder, was an aggravated felony obstruction of justice offense to constitute an obstruction of justice aggravated felony under INA 101(a)(43)(S), 8 U.S.C. 1101(a)(43)(S). for illegal re-entry sentencing purposes). Note: The court here did not address the issue of whether an obstruction of justice offense must interfere with a court proceeding to constitute an obstruction of justice aggravated felony under INA 101(a)(43)(S), 8 U.S.C. 1101(a)(43)(S). CD:19.80, 19.15;AF:5.2, 5.63, A.31, A.2, B.31, B.62

CATEGORICAL ANALYSIS " FEDERAL SENTENCING GUIDELINES COMMENTARY IS BINDING ON THE COURTS IN CRIMINAL CASES
United States v. Rayo-Valdez, 302 F.3d 314, 318 n.5 (5th Cir. 2002) (guidelines commentary is binding as though it were in the guidelines themselves).

Sixth Circuit

RELIEF " ADJUSTMENT OF STATUS " TEMPORARY PROTECTED STATUS
Flores v. USCIS, __ F.3d __ (6th Cir. Jun. 4, 2013) (plain language of INA 244(f)(4) allows noncitizen who entered without inspection, then obtained TPS, to become an LPR despite illegal entry, and provides an exception to the inspected and admitted or paroled language of INA 245(a)).

REINSTATEMENT OF REMOVAL " JUDICIAL REVIEW
De la Paz v. Holder, 640 F.3d 650 (6th Cir. Nov. 8, 2010) (circuit court has jurisdiction to review reinstatement order within 30 days of issuance, under 8 U.S.C. 1252(b)).

Seventh Circuit

RELIEF " WAIVERS " JUDICIAL REVIEW " DISCRETIONARY DECISIONS
Asentic v. Sessions, 873 F.3d 974 (7th Cir. Oct. 17, 2017) (court lacks jurisdiction to review discretionary denial of fraud waiver under INA 237(a)(1)(H)).

AGGRAVATED FELONY " FIREARMS OFFENSES " POSSESSION OF A WEAPON
(Illinois conviction for being in possession of a weapon in violation of 720 ILCS 5/24"1.1(a) did not qualify as an aggravated felony, because Illinoiss definition of a firearm is broader than its federal counterpart because it includes pneumatic weapons). NOTE: Compressed air is not an explosive, which means that pneumatic weapons are not firearms under federal law. See, e.g., United States v. Castillo-Rivera, 853 F.3d 218, 225 (5th Cir. 2017) (en banc); United States v. Crooker, 608 F.3d 94, 96 (1st Cir. 2010). Rodriguez-Contreras v. Sessions, 873 F.3d 579, 580 (Cir. 2017).

RELIEF " ASYLUM " REINSTATEMENT
Garcia v. Sessions, __ F.3d __ (7th Cir. Oct. 11, 2017) (noncitizen subject to reinstatement of removal is barred by INA 241(a)(5) from applying for asylum).

AGGRAVATED FELONY " CRIMES OF VIOLENCE " COMMITTING FELONY WHILE ARMED
Brown v. Rios, 696 F.3d 638, *644 (No. 11-1695) (7th Cir. Aug. 20, 2012) (armed violence, defined as "committing any felony defined by Illinois Law while armed," did not qualify as a Violent Felony when the underlying felony consisted of simple possession of drugs; while there is evidence of a connection between Congresss attempt to keep firearms away from habitual drug users and its goal of reducing violent crime, United States v. Yancey, 621 F.3d 681, 686 (7th Cir. 2010), it has not been shown that the mere possession of a gun by a drug user . . . can be described as purposeful, violent, or aggressive conduct within the meaning of Begay.).

POST CON RELIEF " GROUNDS " INSUFFICIENCY OF EVIDENCE
United States v. Griffin, ___ F.3d ___, ___ (7th Cir., Jul. 5, 2012) (reversing federal conviction for felon in possession of firearms where there was no evidence defendant intended to exercise any control over his father's firearms in his parents' home where he went to live after being released from prison: a defendant's strong connection to the residence alone does not suffice to establish the nexus required to prove his constructive possession of a gun found in the residence.").

Eighth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " THIRD DEGREE ASSAULT ON AN OFFICER AGGRAVATED FELONY " CRIME OF VIOLENCE " RECKLESS INTENT CATEGORICAL ANALYSIS " RECORD OF CONVICTION " PRESENTENCE REPORT
United States. v. Garcia-Longoria, ___ F.3d ___, 2016 WL 1658120 (8th Cir. Apr. 27, 2016) (Nebraska conviction for third-degree assaulting a police officer, in violation of Neb.Rev.St. 28"931(1) (intentionally, knowingly, or recklessly cause bodily injury to a police officer), was a crime of violence for purposes of the ACCA, because the presentence report, to which the defendant did not object, reflected a mens rea of intent); see United States v. Ossana, 638 F.3d 895, 900"03 & n. 6 (8th Cir. 2011) (at least in some circumstances, a crime involving a mens rea of mere recklessness does not qualify as a crime of violence); compare United States v. Boose, 739 F.3d 1185, 1187 (8th Cir.2014), and United States v. Dawn, 685 F.3d 790, 795 (8th Cir. 2012) (following Ossana), with United States v. Kosmes, 792 F.3d 973, 977 (8th Cir. 2015) (distinguishing Ossana ), cert. denied, __ S.Ct. __ (2016).

AGGRAVATED FELONY " FRAUD OFFENSE " UNAUTHORIZED USE OF FOOD STAMP BENEFITS
Mowlana v. Lynch, ___ F.3d ___, ___, 2015 WL 5730791 (8th Cir. Sept. 30, 2015) (federal conviction for unauthorized use, transfer, acquisition, and possession of food stamp benefits, under 7 U.S.C. 2024(b)(1), was fraud and deceit aggravated felony in which the loss to the victim or victims exceeds $10,000, 8 U.S.C. 1101(a)(43)(M)(i), since this offense requires knowing that conduct was contrary to statutes or regulations); see Liparota v. United States, 471 U.S. 419, 433 (1985) (elements of 7 U.S.C. 2024(b)(1)). Note: At least one of the four categories of violation of this statute does not invariably involve deceit, it is merely likely: The third category of violations involves bartering of benefits by trading SNAP benefits for goods or money, or vice versa. See, e.g., United States v. Parson, 288 F.3d 818, 819 (6th Cir.2002); United States v. Gibbens, 25 F.3d 28, 30 (1st Cir.1994). The fourth category involves stealing benefits from eligible households. See United States v. Williams, 97 F.3d 1463 (9th Cir.1996) (unpublished table decision). In these situations, an offender makes no false representation to the government at the time of the violation, but a false representation is likely to occur later if an ineligible person"having obtained SNAP benefits through barter or theft"redeems the benefits at a retailer's Point of Sale device. Id. at 927. The concurring opinion finds that this offense is not categorically a fraud or deceit offense, but finds the conviction in this case is a fraud aggravated felony under the modified categorical approach. Id. at 931 (concurring opinion).

AGGRAVATED FELONY " OBSTRUCTION OF JUSTICE " OBSTRUCTION OF LEGAL PROCESS
Ortiz v. Lynch, __ F.3d __ (8th Cir. Aug. 6, 2015) (Minnesota conviction for violation of Minn.Stat. 609.50, subd. 2(2), obstruction of legal process, is not an aggravated felony crime of violence under 8 U.S.C. 1101(a)(43)(F), INA 101(a)(43)(F), since the minimum amount of force required to sustain a conviction under the obstruction of legal process is not violent force as required by 18 U.S.C. 16).

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).

AGGRAVATED FELONY " CRIME OF VIOLENCE " THIRD-DEGREE ASSAULT
Roberts v. Holder, 745 F.3d 928 (8th Cir. Mar. 20, 2014) (Minnesota conviction for third-degree assault, under Minn.Stat. 609.223 subd. 1, 609.02 subd. 10. [assault of another, (2) that inflicts substantial bodily harm. Minn.Stat. 609.223 subd. 1. Assault is defined as (1) an act done with intent to cause fear in another of immediate bodily harm or death; or (2) the intentional infliction of or attempt to inflict bodily harm upon another.], constituted a crime of violence aggravated felony, because the ordinary case of third-degree assault involve[s] the intentional use of physical force against another, so it has as an element the use, attempted use, or threatened use of physical force); quoting United States v. Salean, 583 F.3d 1059, 1060 (8th Cir.2009) (Minnesota conviction of fourth-degree assault constituted violent felony within the ACCA based on a virtually identical definition).

AGGRAVATED FELONY " RACKETEERING RICO OFFENSES " JURISDICTIONAL ELEMENT
Spacek v. Holder, 688 F.3d 536 (8th Cir. Jul. 31, 2012) (North Dakota state conviction of racketeering constituted aggravated felony racketeering conviction, under INA 101(a)(43)(J), 8 U.S.C. 1101 (a)(43)(J), for immigration purposes, even though the state statute omitted the federal jurisdictional element).

AGGRAVATED FELONY " CRIMES OF VIOLENCE " STATUTORY RAPE
United States v. Dawn, 685 F.3d 790 (8th Cir. Jun. 28, 2012) (Arkansas conviction of second-degree sexual assault, in violation of Ark.Code Ann. 5"14"125(a) (2002), is categorically a crime of violence for purposes of the Armed Career Criminals Act, since the elements of the statute necessarily involve either a use of force or substantial risk that force will be used).

AGGRAVATED FELONY " CRIMES OF VIOLENCE " SECOND-DEGREE BATTERY
United States v. Dawn, 685 F.3d 790 (8th Cir. Jun. 28, 2012) (Arkansas conviction of second-degree battery, in violation of Ark. Code Ann. 5"13"202(a) (2006), is not categorically a crime of violence for purposes of the Armed Career Criminals Act, because it includes recklessly causing serious physical injury, including reckless driving).

Lower Courts of Eighth Circuit

RECORD OF CONVICTION " ADMISSION OF FACTS " FACTUAL BASIS OF PLEA
Morales v Gonzales, 478 F3d 972 (9th Cir. 2007) (a defendants admission to facts for a limited purpose does not become part of the record of conviction and cannot be used in subsequent proceedings). Note: Facts recited by a court of appeals opinion affirming the sufficiency of the evidence for conviction were not facts admitted by the defendant for their truth and should not have been considered part of the record of conviction for purposes of determining the nature of the conviction for immigration purposes. [F]or the sole purpose of determining the sufficiency of the evidence, the evidence is presumed true. It was from this isolated context that the IJ drew the facts and circumstances of Morales's conviction. This is far different from relying on a charging document read in conjunction with a valid plea agreement, where a defendant admits the alleged facts in a way that is binding for the purposes of conviction and subsequent proceedings. See Lara-Chacon v. Ashcroft, 345 F3d 1148, 1152 (9th Cir 2003). Here, in her appeal, Morales did not admit the truth of the evidence presented by the State for all future purposes; she simply allowed the state appellate court to assume the truth of the State's evidence for the purpose of her challenge to its sufficiency." Morales, supra, 982-983. COMMENT: Just as with the limited admission in the court of appeal in this case, the agreement that the court may use police reports or an oral statement of facts or any facts to assess whether there is a factual basis for the plea, should not under identical reasoning be taken as an admission that is binding for the purposes of conviction and later proceedings. Counsel could make this clear, and say, As the court knows, the defense sometimes disagrees with the truth of the facts in the police reports, or prosecution version. We are therefore not agreeing that this statement of facts is true, but are agreeing that the court may consider it for the limited purpose of allowing the court to evaluate a factual basis for this plea. That may well protect the defendant against adverse facts in the factual basis being considered as true in later immigration proceedings. Cross-References: Cal Crim Def Immig 3.41

Ninth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " ROBBERY
United States v. Jones, 877 F.3d 884 (9th Cir. Dec. 15, 2017) (Arizona conviction for armed robbery, under A.R.S. 13-1904, is not a violent felony for purposes of the ACCA, because Arizona's armed robbery does not require the use of force), following United States v. Molinar, 876 F.3d 953 (9th Cir. 2017).

AGGRAVATED FELONY " CRIME OF VIOLENCE " ROBBERY United States v. Jones, 877 F.3d 884 (9th Cir. Dec. 15, 2017) (Arizona conviction for armed robbery, under A.R.S. 13-1904, is not a violent felony for purposes of the ACCA, because Arizona's armed robbery does not require the use of force), following United States v. Molinar, 876 F.3d 953 (9th Cir. 2017).

AGGRAVATED FELONY " CRIME OF VIOLENCE " HARASSMENT
United States v. Werle, 877 F.3d 879 (9th Cir. Dec. 13, 2017) (Washington conviction of felony harassment, in violation of R.C.W. 9A.46.020(2)(b)(ii) [knowingly threaten to kill], is a crime of violence for illegal reentry sentencing purposes, even if the threat could be for an indeterminate time in the future and even if it may include a threat to use poison).

AGGRAVATED FELONY " CRIME OF VIOLENCE " ROBBERY
United States vs. Sanchez Molinar, 876 F.3d 953 (9th Cir. Nov. 29, 2017) (Arizona conviction for robbery, in violation of Ariz. Rev. Stat. 13-1904(A), which includes merely possessing a fake gun during the commission of a robbery without mentioning or brandishing it, is not a crime of violence for purposes of the ACCA because the minimum conduct necessary to commit the offense is not sufficiently violent for to qualify as a crime of violence under Johnson v. United States, 559 U.S. 133 (2010)).

RELIEF " CANCELLATION OF REMOVAL " ADMISSION IN ANY STATUS
(respondent was admitted in 1993 when he was waved across the border after inspection by an immigration officer, since the phrase in any status plainly encompasses every status recognized by immigration statutes, lawful or unlawful, his procedurally regular admission in 1993 was an admission in any status under 8 U.S.C. 1229b(a)(2)).

AGGRAVATED FELONY " CHILD PORNOGRAPHY " POSSESSION OF CHILD PORNOGRAPHY
Chavez-Solis v. Lynch, 803 F.3d 1004, 1009 (9th Cir. Oct. 6, 2015) (California conviction of possession of child pornography, Penal Code 311.11(a), is broader than the relevant federal aggravated felony statutory definition, and there is a realistic probability that overbroad conduct would be prosecuted in California, and this conviction therefore is not considered to be an aggravated felony for purposes of INA 101(a)(43)(I), 237(a)(2)(A)(iii): No provision of the federal statute's definition of sexually explicit conduct can be read to encompass any touching on any part of a child's body with the intent of arousing sexual desires. California's child pornography statute thus sweeps in depictions of a broader range of sexual conduct than the federal child pornography statute encompasses. On this basis, Penal Code 311.11(a) is categorically overinclusive.).

AGGRAVATED FELONY " CRIME OF VIOLENCE " VOLUNTARY MANSLAUGHTER
Quijada-Aguilar v. Lynch, ___ F.3d ___, 2015 WL 5103038 (9th Cir. Sept. 1, 2015) (California conviction for voluntary manslaughter, under Penal Code 192(a), did not qualify as a particularly serious crime that would render noncitizen ineligible for withholding of removal, since it did not constitute an aggravated felony crime of violence, because it encompassed reckless conduct).

AGGRAVATED FELONY " THEFT OFFENSE
Lopez-Valencia v. Lynch, ___ F.3d ___ (9th Cir. Aug. 17, 2015) (California theft conviction, including any offense for which the underlying substantive offense charged was a violation of Penal Code 484, is not aggravated felony theft, since because the California definition of theft includes theft of labor, false credit reporting, and theft by false pretenses, which do not fall within the definition of aggravated felony theft).

CONTROLLED SUBSTANCES " PARAPHERNALIA " UNLISTED SUBSTANCE
Madrigal-Barcenas v. Lynch, ___ F.3d ___, 2015 WL 4716767 (9th Cir. Aug. 10, 2015) (Nevada drug paraphernalia conviction, under NRSA 453.566, constitutes a controlled substance conviction, for purposes of inadmissibility, only if the conviction involved a substance criminalized by federal drug laws); following Mellouli v. Lynch, 135 S. Ct. 2828 (2015); holding Luu-Le v. INS, 224 F.3d 911 (9th Cir. 2000) and its progeny are no longer good law.

AGGRAVATED FELONY " DRUG TRAFFICKING " POSSESSION OF MARIJUANA WITH INTENT TO DISTRIBUTE
United States v. Gonzalez-Corn, ___ F.3d ___, 2015 WL 4385278 (9th Cir. Jul. 17, 2015) (federal conviction for possessing marijuana with the intent to distribute, resulting in a sentence exceeding one year, was for an aggravated felony drug trafficking offense, without need to apply the categorical analysis, since the INA specifically incorporates felony violations of the CSA on its face).

PRACTICE ADVISORY " CONVICTION " NATURE OF CONVICTION " CATEGORICAL ANALYSIS " ELEMENTS " RECORD OF CONVICTION " LESSER INCLUDED OFFENSES " CALIFORNIA
The Ninth Circuit held that because a lesser included charge must be one that is necessarily included in the charged offense, the lesser-included possession offense must have been possession of the same substance charged in the dismissed count charging the greater offense. In dissent, Judge Reinhardt argued the Ninth should stay out of messy questions about what is and is not a lesser-included offense: The complexity and uncertainty of that task is well illustrated here. Although Petitioner pled no contest to the lesser included offense to sale of a controlled substance, the offense to which he pled no contest " possession of a controlled substance " is not a lesser included offense to the crime charged " sale of a controlled substance " under at least one of the tests used by California courts. Under Californias elements test, possession of a controlled substance cannot be a necessarily lesser included offense of selling or offering to sell . . . because the former crime contains elements a sales offense does not: knowing possession of a usable quantity. People v. Peregrina-Larios, 28 Cal. Rptr. 2d 316 (Cal. Ct. App. 1994); see also Judicial Council of California Criminal Jury Instructions, 1 CALCRIM No. 2300 (2015). Moreover, under that test the particular drug alleged in the information is not relevant to determining a lesser included offense. See People v. Sosa, 148 Cal. Rptr. 3d 826, 828"29 (Cal. Ct. App. 2012). Under the accusatory pleading test, the specific language of the accusatory pleading must include all of the elements of the lesser offense. People v. Moses, 50 Cal. Rptr. 2d 665, 668 (Cal. Ct. App. 1996). In this case, the first count in the accusatory pleading " the count to which Petitioner pled no contest to the lesser included offense " does not include any specific language concerning possession of methamphetamine; it merely repeats the language in the sale statute. There is an excess clause as to count one including the allegation that Petitioner possessed for sale/sold . . . methamphetamine, but that allegation could be satisfied by Petitioner selling methamphetamine without possessing it for sale. In short, rather than clear, unequivocal, and convincing evidence that Petitioner pled no contest to possession of methamphetamine, the record in this case reveals ambiguity and confusion regarding the meaning of Petitioners plea to a lesser included offense. Ruiz-Vidal v. Holder, ___ F.3d ___, ___ (9th Cir. 2015) (Reinhardt, J. dissenting). A petition for rehearing is in preparation.

OVERVIEW " CONSULAR PROCESSING " CHOICE OF LAW POST CONVICTION RELIEF " EXPUNGMENT
Dept of State Cable re Application of Lujan-Armendariz to Applicants Entering in Ninth Circuit POE, AILA InfoNet Doc. No. 13012240. (Posted 1/22/13) (Ninth Circuit law applies to immigrants entering the U.S. at a Port of Entry within the Ninth Circuit if the Immigrant intends to reside within the Ninth Circuit).

AGGRAVATED FELONY " SEXUAL ABUSE OF A MINOR " CHILD MOLESTATION
United States v. Martinez, ___ F.3d ___, ___, 2015 WL 3406178 (9th Cir. May 28, 2015) (Washington conviction of third-degree child molestation, in violation of Wash. Rev.Code 9A.44.089, is categorically not an aggravated felony sexual abuse of a minor offense, under INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A), since the offense is not divisible and includes touching over clothing; sexual abuse of a minor requires skin on skin contact); see State v. Soonalole, 992 P.2d 541, 544 & n.13 (Wash.Ct.App.2000) (holding that the fondling and thigh rubbing over the victim's clothes constituted a separate act of third-degree child molestation under state criminal law for double jeopardy purposes); see also United States v. Castro, 607 F.3d 566, 570 (9th Cir. 2010), as amended (holding that a California statute prohibiting lewd and lascivious acts on a child, under Penal Code 288(a), was categorically broader than the generic definition for sexual abuse of a minor because [l]ewd touching [under the state statute] can occur through a victim's clothing and can involve any part of the victim's body).

AGGRAVATED FELONY " THEFT OFFENSE " THEFT
Garcia v. Lynch, ___ F.3d ___, ___, 2015 WL 2385402 (9th Cir. May 20, 2015) (California conviction of theft, under Penal Code 487(a), is not categorically a theft aggravated felony because the California offense includes theft of labor, and because the California statute may be violated even if the victim consented to transfer his property by false pretenses), citing Carrillo"Jaime v. Holder, 572 F.3d 747, 751"53 (9th Cir. 2009).

AGGRAVATED FELONY " CRIME OF VIOLENCE " ASSAULT WITH A DEADLY WEAPON
United States v. Jimenez-Arzate, ___ F.3d ___ (9th Cir. Mar. 30, 2015) (amending and superseding opinion denying rehearing en banc) (California conviction for violation of Penal Code 245(a)(1) is categorically a crime of violence for federal sentencing purposes, since United States v. Grajeda, which held that a conviction under section 245(a)(1) is categorically a crime of violence, is still good law even in light of People v. Aznavoleh, 210 Cal.App.4th 1181 (2012), and People v. Wyatt, 48 Cal.4th 776 (2010), which do not hold that assault with a deadly weapon may be committed with reckless intent; a defendant guilty of assault must be aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct. He may not be convicted based on facts he did not know but should have known. Wyatt, at 159 (quoting People v. Williams, 26 Cal.4th 779 (2001)).

AGGRAVATED FELONY " CRIME OF VIOLENCE " ASSAULT WITH A DEADLY WEAPON
United States v. Jimenez-Arzate, ___ F.3d ___, 2015 WL 149802 (9th Cir. Jan. 12, 2015) (per curiam) (California conviction for assault with deadly weapon, in violation of Penal Code 245(a)(1), was categorically a crime of violence, for federal sentencing purposes, rejecting the argument that the California courts have weakened the intent requirement to recklessness, which involves insufficient intent to qualify, so United States v. Grajeda, 581 F.3d 1186 (9th Cir. 2009), is no longer good law in light of People v. Aznavoleh, 210 Cal.App.4th 1181, 148 Cal.Rptr.3d 901, 904 (2012), and People v. Wyatt, 48 Cal.4th 776, 108 Cal.Rptr.3d 259, 229 P.3d 156, 157 (2010)). The court reasoned: We disagree. Aznavoleh involved a defendant who intentionally ran a red light while racing another car down the street even though he saw a car entering the intersection on the green. The defendant made no effort to stop despite a passenger warning him that he needed to stop. The California Court of Appeal upheld the trial court's finding that the defendant met the willfulness element of assault under California Penal Code 245(a)(1), which the California Court of Appeal defined as intentionality. Wyatt involved a father who, while play wrestling with his infant son, struck the boy with such force that he killed him. [Citation omitted.] The Wyatt court upheld the father's conviction for involuntary manslaughter and assault on a child causing death because substantial evidence established that defendant knew he was striking his young son with his fist, forearm, knee, and elbow, and that he used an amount of force a reasonable person would realize was likely to result in great bodily injury. Id. As did the California Court of Appeal in Aznavoleh, the California Supreme Court in Wyatt explained that a defendant guilty of assault must be aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct. He may not be convicted based on facts he did not know but should have known. Id. at 159 (quoting People v. Williams, 26 Cal.4th 779, 111 Cal.Rptr.2d 114, 29 P.3d 197, 203 (2001)). Contrary to Jimenez"Arzate's argument, Aznavoleh did not hold that an automobile accident stemming from merely reckless driving may result in a conviction under 245(a)(1). The defendant in Aznavoleh engaged in street racing, heedlessly disregarding a perceived likelihood of death or grave injury to others. Likewise, in Wyatt, a reasonable person would have recognized the dangers of striking a child with the deadly force used, even if the defendant was not subjectively aware of the risks of his play wrestling with the child in that manner. (Id. at ___.)

AGGRAVATED FELONY " CRIME OF VIOLENCE " ROBBERY
United States v. Prince, __ F.3d __ (9th Cir. Nov. 24, 2014) (California conviction for violation of Penal Code 211, robbery, is a violent felony under the residual clause for purposes of the Armed Career Criminals Act, as an offense that poses a serious risk of physical injury to another).

AGGRAVATED FELONY " CRIMES OF VIOLENCE " EVADING AN OFFICER
United States v. Martinez, 771 F.3d 672 (9th Cir. Nov. 14, 2014) (California conviction under Vehicle Code 2800.2 for vehicle flight from a pursuing peace officer, was a "violent felony" under the ACCA's residual clause, 18 U.S.C. 924(e)(2)(B)(ii)).

AGGRAVATED FELONIES " DRUG TRAFFICKING OFFENSES " POSSESSION FOR SALE CONVICTION " NATURE OF CONVICTION " CATEGORICAL ANALYSIS " DIVISIBLE STATUTE " CALIFORNIA POSSESSION FOR SALE
Padilla-Martinez v. Holder, ___ F.3d ___, ___, n.3, 2014 WL 5421219 (9th Cir. Oct. 27, 2014) (California conviction of possession for sale of a controlled substance, in violation of Health and Safety Code 11378, qualified as an aggravated felony for deportation purposes, since state law required jury to identify specific controlled substance as an element of the offense, and thus the modified categorical analysis was properly used to consult the record of conviction, which identified federally listed substance). The court stated: California Health & Safety Code 11378 is divisible for several reasons. First, it is written in the disjunctive by listing five alternative categories of controlled substances. See Quijada Coronado v. Holder, 747 F.3d 662, 668"69 (9th Cir.2014) (concluding that California Health & Safety Code 11377(a), a statute substantially similar to 11378, is divisible). Also, California state law treats the type of controlled substance as a separate element in prosecuting relevant drug offenses. See, e.g., 2 Witkin & Epstein, Cal.Crim. Law (4th ed.2012) 102 (a specified controlled substance is an element common to all state drug crimes requiring proof of possession); CALCRIM 2302 (Judicial Council of California Criminal Jury Instruction for conviction under 11378 requires the jury to fill in the blank where the controlled substance is to be identified); People v. Montero, 155 Cal.App.4th 1170, 66 Cal.Rptr.3d 668, 671 (Cal.Ct.App.2007) (adopting the CALCRIM jury instruction); see also People v. Gerber, 196 Cal.App.4th 368, 126 Cal.Rptr.3d 688, 704 (Cal.Ct.App.2011) (finding instructional error where jury instructions for conviction of a California drug crime did not require the jury to identify the type of controlled substance). Id. at ___, n.3.

AGGRAVATED FELONY " STATE CONVICTION " FEDERAL JURISDICTIONAL ELEMENT AGGRAVATED FELONY " ARSON
Sandoval-Gomez v. Holder, ___ F.3d ___, 2014 WL 4668962 (9th Cir. Sept. 22, 2014) (California conviction of attempted arson, in violation of Penal Code 455, constituted aggravated felony arson under, INA 101(a)(43)(E), 8 U.S.C. 1101(a)(43)(E) under the modified categorical approach; the federal element found in section 844 is a purely jurisdictional element which must be disregarded in determining whether the state law qualifies as an aggravated felony under federal law), vacated 771 F.3d 511 (9th Cir. Oct. 24, 2014).

AGGRAVATED FELONY " FIREARMS OFFENSES " ANTIQUE FIREARMS DEFENSE
United States v. Hernandez, 769 F.3d 1059 (9th Cir. Oct. 20, 2014) (per curiam) (California conviction for being a felon in possession of a firearm under California Penal Code 12021(a)(1), did not categorically qualify as a listed firearms aggravated felony, under INA 101(a)(43)(E), 8 U.S.C. 101(a)(43)(E), since the state did not have an exception for antique firearms, as federal law did, and the state in fact prosecuted defendants under this statute for being in possession of antique firearms, and the state statutory definition of firearm is not divisible, so resort to the modified categorical analysis or record of conviction is prohibited).

CONTROLLED SUBSTANCES " UNIDENTIFIED SUBSTANCE AGGRAVATED FELONY " DRUG TRAFFICKING " UNIDENTIFIED SUBSTANCE
Medina-Lara v. Holder, 771 F.3d 1106 (9th Cir. Oct. 10, 2014) (California conviction of possession for sale of a controlled substance, in violation of Health & Safety Code 11351, is neither an aggravated felony drug trafficking conviction, under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), nor a controlled substances conviction, under INA 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i), under the modified categorical analysis, because the amended complaint and the abstract of judgment did not provide clear and convincing evidence regarding what specific substance the petitioner pleaded guilty to), withdrawing prior opinion at ___ F.3d ___, 2014 WL 4654481 (9th Cir. Sept. 19, 2014); distinguishing Cabantac v. Holder, 736 F.3d 787, 793-94 (9th Cir.2012) (per curiam); Ramirez-Villalpando v. Holder, 645 F.3d 1035, 1041 (9th Cir. July 1, 2011). Cross-References: Cal Crim Def Immig 8.21 (unidentified drug). Cross-References: Cal Crim Def Immig 14.20 (record failed to prove identity of drug).

CRIMES OF MORAL TURPITUDE " BURGLARY
Rendon v. Holder, ___ F.3d ___, ___, 2014 WL 4115930 (9th Cir. Aug. 22, 2014) (California conviction of burglary, in violation of Penal Code 459 [entry with intent to commit larceny or any felony], did not constitute a divisible statute, under Descamps; the presence of an or between grand or petit larceny and any felony does not render the statute divisible, because the intended offense, under this statute, is not an element of the offense, but a means of commission, since California law does not require jury unanimity on this point; BIA's use of the modified categorical approach was impermissible); citing People v. Failla, 414 P.2d 39, 44-45 (1966); distinguishing Ngaeth v. Mukasey, 545 F.3d 796, 802 (9th Cir. 2008) (per curiam) (decided prior to Descamps); Hernandez"Cruz v. Holder, 651 F.3d 1094, 1104"05 (9th Cir. 2011) (same). NOTE: The court states: To be clear, it is black-letter law that a statute is divisible only if it contains multiple alternative elements, as opposed to multiple alternative means. Id. at 2285. Thus, when a court encounters a statute that is written in the disjunctive (that is, with an or), that fact alone cannot end the divisibility inquiry. Only when state law requires that in order to convict the defendant the jury must unanimously agree that he committed a particular substantive offense contained within the disjunctively worded statute are we able to conclude that the statute contains alternative elements and not alternative means.

CAL CRIM DEF " CONSPIRACY " OBJECT OF A CONSPIRACY IS NOT AN ELEMENT AGGRAVATED FELONY " CONSPIRACY
People v. Vargas, 110 Cal. Rptr. 2d 210, 247 (2001) (the object of a conspiracy is not an element of a California conspiracy offense: [T]he specific crimes that constitute the object of the conspiracy are not elements of the conspiracy. Rather, they are the means by which the purpose of the conspiracy was to be achieved.); id. at 245 (So long as there is unanimity that crime was the object of the agreement, conspiracy is established regardless of whether some jurors believe that crime to be murder and others believe that crime to be something else.). Note: As long as Rendon v. Holder, ___ F.3d ___, ___, 2014 WL 4115930 (9th Cir. August 22, 2014), remains the law of the Ninth Circuit, the target offense of the conspiracy does not constitute part of the elements of the offense of conviction. Under the same reasoning, a conspiracy offense is not divisible in terms of the elements, so the immigration authorities cannot use the modified categorical analysis to consult the record of conviction documents to determine the nature of the conviction for immigration purposes. Thanks to Dan Kesselbrenner.

AGGRAVATED FELONIES " FIREARMS OFFENSES " ANTIQUE FIREARMS
United States v. Aguilera-Rios, ___ F.3d ___, 2014 WL 2723766 (9th Cir. Jun. 17, 2014) (California Penal Code 12021(c)(1), current Penal Code 29800, is not a categorical aggravated felony firearms offense, since the statute lacks an antique firearms exception); explicitly partially overruling Gil v. Holder, 651 F.3d 1000, 1005"06 (9th Cir. 2011), and implicitly partially overruling Matter of Mendez-Orellana, 25 I&N Dec. 254 (BIA 2010).

CONTROLLED SUBSTANCES " ATTEMPTED PROMOTING DANGEROUS DRUG NOT REMOVABLE " PAULUS DEFENSE " UNLISTED DRUG
Ragasa v. Holder, ___ F.3d ___, ___, 2014 WL 1661491 (9th Cir. Apr. 28, 2014) (Hawaii conviction for promotion of a dangerous drug, in violation of HRS 705"500(1)(b), 712"1241(1)(b)(ii), is not categorically a controlled substances offense; Ragasa is not categorically removable under Section 237(a)(2)(B)(i) of the INA because his statute of conviction criminalizes at least two substances that are not similarly proscribed by the CSA: benzylfentanyl and thenylfentanyl. Compare Haw.Rev.Stat. 329"14(b)(56) & (57) (2003); Haw.Rev.Stat. 712"1240 (2004); Haw.Rev.Stat. 712"1241(1)(b)(ii) (2006), with 21 U.S.C. 812; 21 C.F.R. 1308.11"15.).

AGGRAVATED FELONY " CRIME OF VIOLENCE " SEXUAL CONDUCT WITH A MINOR
United States v. Gomez, __ F.3d __, 2014 WL 1623725 (9th Cir. Apr. 24, 2014) (Arizona conviction for violation of ARS 13-405, sexual conduct with a minor under the age of fifteen, is not necessarily a crime of violence, as sexual abuse of a minor, for illegal re-entry sentencing purposes, under current law), applying tests of Estrada"Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008).

POST-CON " VACATUR AFTER DEPORTATION
United States v. Barrios-Siguenza, 747 F.3d 1222, 1223 (9th Cir. Apr. 9, 2014) (We were assured at oral argument that Barrios will return for trial should the government choose to retry him and parole him into the country for that purpose. Cf. United States v. Leal"Del Carmen, 697 F.3d 964, 975 (9th Cir. 2012) (discussing the Attorney General's authority to parole aliens into the country to testify in criminal prosecutions (citing 8 U.S.C. 1182(d)(5)(A))). Given the government's authority to permit Barrios to return for retrial, and counsel's assurances that Barrios would be willing to do so, this case is unlikely to languish for an indefinite period before the district court, should the government choose to retry Barrios.).

AGGRAVATED FELONY " CRIME OF VIOLENCE " ASSAULT ON OFFICER
United States v. Dominguez-Maroyoqui, 748 F.3d 918 (9th Cir. Apr. 7, 2014) (federal conviction for assaulting a federal officer, in violation of 18 U.S.C. 111(a), is not categorically a crime of violence for illegal re-entry sentencing purposes, since the offense does not require, as an element, proof that defendant used, attempted to use, or threatened to use physical force).

CONTROLLED SUBSTANCES " UNLISTED SUBSTANCES AGGRAVATED FELONIES " DRUG TRAFFICKING OFFENSES
Coronado v. Holder, ___ F.3d ___, 2014 WL 983621 (9th Cir. Mar. 14, 2014) (Health & S C 11377(a) is not categorically a conviction relating to a federally-listed controlled substance, for purposes of inadmissibility, because it includes at least one substance that is not on the federal list). NOTE: The court found that Health & Safety Code punishes offenses involving "khat (Catha Edulis) and Chorionic gonadotropin (HGC), which are not listed in the federal schedules. See 21 C.F.R. 1308.13 (Schedule III of the CSA).

CONTROLLED SUBSTANCES " MEANS V. ELEMENTS " PAULUS DEFENSE
Coronado v. Holder, ___ F.3d ___, 2014 WL 983621 (9th Cir. Mar. 14, 2014) (rejecting argument that the modified categorical analysis is inapplicable to Health & Safety Code 11377(a); statutes specific reference to the California controlled substances lists allows conviction).

MOTION TO REOPEN REMOVAL PROCEEDINGS " CONVENTION AGAINST TORTURE
Go v. Holder, 744 F.3d 604 (9th Cir. Mar. 7, 2014) (the specific time and number limitations on motions to reopen, 8 C.F.R. 1003.2(c), apply to motions to reopen that arise under the Convention Against Torture).

AGGRAVATED FELONY " CONSPIRACY " DEFINITION
United States v. Garcia-Santana, 743 F.3d 666 (9th Cir. Feb. 20, 2014) (Nevada conviction of conspiracy to commit the crime of burglary in violation of Nev.Rev.Stat. 199.480, 205.060(1), does not constitute an aggravated felony conspiracy, where Nevada law does not require as an element of conspiracy the commission of an overt act in pursuance of the conspiracy, Nev.Rev.Stat. 199.490; aggravated felony conspiracy, INA 101(a)(43) (U), 8 U.S.C. 1101(a)(43)(U), require commission of an overt act in furtherance of the conspiracy, so the state offense is overbroad); distinguishing United States v. Chandler, 743 F.3d 648 (9th Cir. Feb. 20, 2014) (Nevada conviction for conspiracy to commit robbery is a violent felony within the meaning of the Armed Career Criminal Act, 18 U.S.C. 924(e)(1), which employs a different definition of conspiracy than that used for the aggravated felony definition under INA 101(a)(43) (U), 8 U.S.C. 1101(a)(43)(U)).

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 " FRAUD OFFENSES " LOSS AMOUNT " MEDICARE PRESUMPTIVE LOSS AMOUNT
United States v. Popov, 742 F.3d 911 (9th Cir. Feb. 11, 2014) (in federal health care fraud prosecutions, the amount billed to an insurer constitutes sufficient evidence to establish the intended loss by a preponderance of the evidence, if not rebutted).

AGGRAVATED FELONY " CHILD PORNOGRAPHY
Aguilar-Turcios v. Holder, 740 F.3d 1294 (9th Cir. Jan. 23, 2014) (military conviction for violation of Article 92 of the Uniform Code of Military Justice, providing that official use of government computers does not include viewing pornography, does not categorically constitute a aggravated felony, because one could violate the article without necessarily being guilty of all the elements of a generic federal child pornography offense).

AGGRAVATED FELONY " CRIME OF VIOLENCE " LEWD AND LASIVIOUS BATTERY
United States v. Caceres-Olla, 738 F.3d 1051 (9th Cir. Dec. 23, 2013) (Florida conviction for "lewd and lascivious battery," in violation of Florida Statutes 800.04(4)(a) [[e]ngag[ing] in sexual activity with a person 12 years of age or older but less than 16 years of age.], did not categorically constitute a crime of violence for illegal reentry sentencing purposes, since lack of consent is not an element of the crime; nor is the statute divisible, so the modified categorical analysis cannot be employed); United States v. Gomez"Mendez, 486 F.3d 599, 604 (9th Cir. 2007) (Florida conviction of lewd and lascivious battery, in violation of Fla. Stat. 800.04(4)(a) is a strict liability crime[,] criminalizing [e]ngag[ing] in sexual activity with a person 12 years of age or older but less than 16 years of age, ibid., regardless of whether the victim, in fact, consents); see United States v. Rangel"Castaneda, 709 F.3d 373, 376 (4th Cir.2013) (Tennessee conviction of sexual penetration ... when the victim is at least thirteen (13) but less than eighteen (18) years of age and the defendant is at least ten (10) years older than the victim. did not categorically constitute a crime of violence as a forcible sex offense under the guidelines because the fact that Tennessee law renders the consent of a statutory rape victim formally irrelevant does not mean that the offense necessarily requires sexual conduct that is forcible ..."that is, involving actual compulsion.); The court reasoned: First, the absence of a consent defense to statutory rape is analytically distinct from situations in which a victim's consent ... is [deemed] not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced. U.S.S.G. 2L1.2 cmt. n. 1(B)(iii). The three examples cited by the Sentencing Commission, see supra at pp. 1054"55, involve instances in which the victim does not in fact have the state of mind of willing acquiescence"either because her consent is coerced, or because her actual state of mind is such that she is not capable of willingly consenting, as in the case of incompetence or intoxication. We have acknowledged, however, that the assumption that a minor's legal incapacity implies that the proscribed sexual intercourse is non-consensual does not always hold true[.] Valencia v. Gonzales, 439 F.3d 1046, 1051 (9th Cir.2006). Some minors are able to engage in sexual intercourse voluntarily, despite being legally incapable of consent. Id. In other words, because statutory rape is a strict liability crime, the minor's actual state of mind does not matter, nor does the minor's actual capacity for mature deliberation. . The term statutory rape is ordinarily, contemporarily, and commonly understood to mean the unlawful sexual intercourse with a minor under the age of consent specified by state statute. Gomez"Mendez, 486 F.3d at 603. If all sex offenses where consent ... is not legally valid on the basis of age are, by definition, forcible, there would be no need to separately enumerate statutory rape. See U.S.S.G. 2L1.2 cmt. n. 1(B)(iii). The same would be true of sexual abuse of a minor, whereby we define the term abuse ... in light of the age of the victim in question, United States v. Medina"Villa, 567 F.3d 507, 513 (9th Cir.2009), and have held that [s]exual conduct with younger children is per se abusive[,] Valencia"Barragan, 608 F.3d at 1107. A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant. Corley v. United States, 556 U.S. 303, 314, 129 S.Ct. 1558, 173 L.Ed.2d 443 (2009) (citations and quotation marks omitted). This basic interpretive canon [,] id., applies to the Sentencing Guidelines. See United States v. Wenner, 351 F.3d 969, 974"75 (9th Cir.2003). Yet, when asked at argument, the government could identify no circumstance in which a statutory rape would not also be a forcible sex offense under its interpretation. Nor can we. It is our duty to give effect, if possible, to every clause and word of a statute. Duncan v. Walker, 533 U.S. 167, 174, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) (citations and quotation marks omitted). We are reluctan[t] to treat ... as surplusage, id., the Guidelines' enumeration of statutory rape and sexual abuse of a minor as separate crimes of violence. Third, deeming as forcible sex offenses all sexual acts with persons under the age of majority would ignore contemporary limitations on the concept of statutory rape. In particular, there has been a move among the states to reform statutory rape laws in cases involving partners of a similar age"for instance, foreclosing prosecutions of 16"year"olds for heavy petting with 14"year"olds, or reducing sentences of 19"year"olds for sexual intercourse with 17"year"olds. See, e.g., Charles A. Phipps, Misdirected Reform: On Regulating Consensual Sexual Activity Between Teenagers, 12 Cornell J.L. & Pub. Pol'y 373, 390"91 (2003). In recognition of this growing consensus, we have held that, for federal purposes, an age difference of at least four years is an element of sexual abuse of a minor, Estrada"Espinoza v. Mukasey, 546 F.3d 1147, 1158 (9th Cir.2008) (en banc), and of statutory rape as well, United States v. Gomez, 732 F.3d 971, 988"89 (9th Cir.2013). Reading the term forcible sex offenses"which requires no age difference"to encompass all sexual conduct with minors, would obliterate those limitations. A so-called Romeo"and"Juliet offender[,] Doe v. Mich. Dep't of State Police, 490 F.3d 491, 503 (6th Cir.2007), could be deemed to have been convicted of a forcible sex offense by virtue of the victim's age, despite being expressly and intentionally excluded from the generic federal definitions of statutory rape and sexual abuse of a minor. (Ibid. at 1055-1056.)

AGGRAVATED FELONY " CRIME OF VIOLENCE " LEWD CONDUCT
United States v. Caceres-Olla, 738 F.3d 1051 (9th Cir. Dec. 23, 2013) (Florida conviction for "lewd and lascivious battery," in violation of Florida Statutes 800.04(4)(a), [[e]ngag[ing] in sexual activity with a person 12 years of age or older but less than 16 years of age.], did not categorically constitute a forcible sex offense, and thus cannot be a crime of violence as defined under the federal sentencing guidelines).

AGGRAVATED FELONY " CRIME OF VIOLENCE " LEWD AND LASIVIOUS BATTERY
United States v. Caceres-Olla, 738 F.3d 1051 (9th Cir. Dec. 23, 2013) (Florida conviction for "lewd and lascivious battery," in violation of Florida Statutes 800.04(4)(a) [[e]ngag[ing] in sexual activity with a person 12 years of age or older but less than 16 years of age.], did not categorically constitute a crime of violence for illegal reentry sentencing purposes, since lack of consent is not an element of the crime; nor is the statute divisible, so the modified categorical analysis cannot be employed); United States v. Gomez"Mendez, 486 F.3d 599, 604 (9th Cir. 2007) (Florida conviction of lewd and lascivious battery, in violation of Fla. Stat. 800.04(4)(a) is a strict liability crime[,] criminalizing [e]ngag[ing] in sexual activity with a person 12 years of age or older but less than 16 years of age, ibid., regardless of whether the victim, in fact, consents); see United States v. Rangel"Castaneda, 709 F.3d 373, 376 (4th Cir.2013) (Tennessee conviction of sexual penetration ... when the victim is at least thirteen (13) but less than eighteen (18) years of age and the defendant is at least ten (10) years older than the victim. did not categorically constitute a crime of violence as a forcible sex offense under the guidelines because the fact that Tennessee law renders the consent of a statutory rape victim formally irrelevant does not mean that the offense necessarily requires sexual conduct that is forcible ..."that is, involving actual compulsion.); The court reasoned: First, the absence of a consent defense to statutory rape is analytically distinct from situations in which a victim's consent ... is [deemed] not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced. U.S.S.G. 2L1.2 cmt. n. 1(B)(iii). The three examples cited by the Sentencing Commission, see supra at pp. 1054"55, involve instances in which the victim does not in fact have the state of mind of willing acquiescence"either because her consent is coerced, or because her actual state of mind is such that she is not capable of willingly consenting, as in the case of incompetence or intoxication. We have acknowledged, however, that the assumption that a minor's legal incapacity implies that the proscribed sexual intercourse is non-consensual does not always hold true[.] Valencia v. Gonzales, 439 F.3d 1046, 1051 (9th Cir.2006). Some minors are able to engage in sexual intercourse voluntarily, despite being legally incapable of consent. Id. In other words, because statutory rape is a strict liability crime, the minor's actual state of mind does not matter, nor does the minor's actual capacity for mature deliberation. . The term statutory rape is ordinarily, contemporarily, and commonly understood to mean the unlawful sexual intercourse with a minor under the age of consent specified by state statute. Gomez"Mendez, 486 F.3d at 603. If all sex offenses where consent ... is not legally valid on the basis of age are, by definition, forcible, there would be no need to separately enumerate statutory rape. See U.S.S.G. 2L1.2 cmt. n. 1(B)(iii). The same would be true of sexual abuse of a minor, whereby we define the term abuse ... in light of the age of the victim in question, United States v. Medina"Villa, 567 F.3d 507, 513 (9th Cir.2009), and have held that [s]exual conduct with younger children is per se abusive[,] Valencia"Barragan, 608 F.3d at 1107. A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant. Corley v. United States, 556 U.S. 303, 314, 129 S.Ct. 1558, 173 L.Ed.2d 443 (2009) (citations and quotation marks omitted). This basic interpretive canon [,] id., applies to the Sentencing Guidelines. See United States v. Wenner, 351 F.3d 969, 974"75 (9th Cir.2003). Yet, when asked at argument, the government could identify no circumstance in which a statutory rape would not also be a forcible sex offense under its interpretation. Nor can we. It is our duty to give effect, if possible, to every clause and word of a statute. Duncan v. Walker, 533 U.S. 167, 174, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) (citations and quotation marks omitted). We are reluctan[t] to treat ... as surplusage, id., the Guidelines' enumeration of statutory rape and sexual abuse of a minor as separate crimes of violence. Third, deeming as forcible sex offenses all sexual acts with persons under the age of majority would ignore contemporary limitations on the concept of statutory rape. In particular, there has been a move among the states to reform statutory rape laws in cases involving partners of a similar age"for instance, foreclosing prosecutions of 16"year"olds for heavy petting with 14"year"olds, or reducing sentences of 19"year"olds for sexual intercourse with 17"year"olds. See, e.g., Charles A. Phipps, Misdirected Reform: On Regulating Consensual Sexual Activity Between Teenagers, 12 Cornell J.L. & Pub. Pol'y 373, 390"91 (2003). In recognition of this growing consensus, we have held that, for federal purposes, an age difference of at least four years is an element of sexual abuse of a minor, Estrada"Espinoza v. Mukasey, 546 F.3d 1147, 1158 (9th Cir.2008) (en banc), and of statutory rape as well, United States v. Gomez, 732 F.3d 971, 988"89 (9th Cir.2013). Reading the term forcible sex offenses"which requires no age difference"to encompass all sexual conduct with minors, would obliterate those limitations. A so-called Romeo"and"Juliet offender[,] Doe v. Mich. Dep't of State Police, 490 F.3d 491, 503 (6th Cir.2007), could be deemed to have been convicted of a forcible sex offense by virtue of the victim's age, despite being expressly and intentionally excluded from the generic federal definitions of statutory rape and sexual abuse of a minor. (Ibid. at 1055-1056.)

AGGRAVATED FELONY " RACKETEERING
Murillo-Prado v. Holder, __ F.3d __ (9th Cir. Nov. 20, 2013) (Arizona conviction for illegally conducting an enterprise is not categorically an aggravated felony RICO conviction, but the record of conviction established respondent was convicted of aggravated felony racketeering). Note: This holding may be inconsistent with Bautista v. Atty Gen. of the U.S., ___ F.3d ___ (3d Cir. Feb. 21, 2014)(New York conviction of attempted arson in the third degree, in violation of Penal Law 110 and 150.10, did not categorically constitute a match for the elements of 18 U.S.C. 844(i), and is therefore not an aggravated felony under INA 101(a)(43)(E)(i), 8 U.S.C. 1101(a)(43)(E)(i), because the New York arson statute does not require the federal jurisdictional element that the object of the arson be used in interstate commerce, as the corresponding federal statute does, which the Supreme Court has found to be a critical and substantive element of that arson offense, so it did not disqualify him from eligibility for cancellation of removal under INA 240A(a)(3), 8 U.S.C. 1229b(a)(3)).

AGGRAVATED FELONY " RACKETEERING "ARIZONA RICO
Murillo-Prado v. Holder, 735 F.3d 1152, 1157 (9th Cir. Nov. 20, 2013) (Arizona conviction for racketeering, in violation of Ariz.Rev.Stat. 13"2301, is not categorically a RICO aggravated felony offense, because Arizona's definition of racketeering includes two offenses not explicitly listed in its federal counterpart: (1) [i]ntentional or reckless false statements or publications concerning land for sale or lease or sale of subdivided lands or sale and mortgaging of unsubdivided lands, and (2) making [o]bscene or indecent telephone communications to minors for commercial purposes,).

AGGRAVATED FELONY " CRIME OF VIOLENCE " LEWD ACT WITH 15-YEAR-OLD
Rodriguez-Castellon v. Holder, 733 F.3d 847 (9th Cir. Oct. 22, 2013) (California conviction for lewd and lascivious acts upon a 15-year-old girl when the actor is at least ten years older, under Penal Code 288(c)(1), is a categorical crime of violence and therefore an aggravated felony, under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), because this offense, in the ordinary case, poses a substantial risk of the use of physical force under 18 U.S.C. 16(b)). Note: Although not a positive case, the discussion does carefully address prior Ninth Circuit case law and has some very useful analysis distinguishing 18 U.S.C. 16(b), substantial risk analysis from the minimum-conduct analysis required for other portions of the Act, including Sexual Abuse of a Minor, Child Abuse, Domestic Violence, and 18 U.S.C. 16(a). Thanks to Joseph Justin Rollin.

CONVICTION -- NATURE OF CONVICTION " FACTS VS ELEMENTS " PLEA OF GUILTY CONTROLS
United States v. Avery, 719 F.3d 1080, 1084 (9th Cir. Jun. 18, 2013) (As we have stated in other contexts, plea agreements are contracts, and are premised on the notion that the negotiated guilty plea represents a bargained-for quid pro quo. United States v. Escamilla, 975 F.2d 568, 571 (9th Cir.1992) (internal quotation marks omitted).; language in information cannot be counted against defendant if the language is unrelated to the plea; [i]n enforcing a plea agreement, we are bound to construe any ambiguities or inconsistencies in favor of the defendant, ordinarily placing on the government responsibility for any lack of clarity. United States v. Franco"Lopez, 312 F.3d 984, 989 (9th Cir.2002) (internal citations and quotation marks omitted). The government cannot seize upon convenient language contained in the information to substantiate a broader charge that was not incorporated into the plea agreement . . .).

AGGRAVATED FELONY " CRIME OF VIOLENCE " STATUTORY RAPE
United States v. Gallegos-Galindo, 704 F.3d 1269 (9th Cir. Jan. 17, 2013) (Washington conviction for third-degree rape, in violation of RCW 9A.44.060(1)(a), qualified as a "forcible sex offense" supporting a 16-level crime-of-violence enhancement under the Sentencing Guidelines, U.S.S.G. 2L1.2(b)(1)(A)). Note: RCW 9A.44.060(1)(A) punishes any rape that does not constitute first or second degree rape. The statute does not contain any further elements. Without conducting any analysis of Washington case law to determine whether any judicially identified elements exist, and thus whether the statute could be considered divisible, the Court found it could skip the categorical analysis, and apply directly the modified categorical analysis. This allowed the court to conclude the offense was a forcible sex offense which includes any non-consensual sexual intercourse, because the factual basis specified that no consent had been given. The court did not cite Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. Aug. 11, 2011).

AGGRAVATED FELONY " CRIME OF VIOLENCE " 18 US.C. 16(b) " POSSESSION OF SHORT-BARRELED SHOTGUN
United States v. Reyes, 907 F.Supp.2d 1068 (N.D.Cal., 2012) (conviction of possession of a short-barreled shotgun is not a crime of violence within the meaning of 18 U.S.C. 16(b), because [T]he risk of physical force central to the definition of a crime of violence under 16(b) is the risk of its use in the course of committing the offense"its use in completing the crime.); noting that United States v. Dunn, 946 F.2d 615, 620"21 (9th Cir.1991), has been effectively overruled by Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004); see Covarrubias"Teposte v. Holder, 632 F.3d 1049, 1053 (9th Cir. 2011) (embracing the reasoning of Leocal in defining a crime of violence under 18 U.S.C. 16(b), the court held that a California conviction for shooting at an inhabited dwelling or vehicle under California Penal Code 246 was not categorically a crime of violence: In order to be a predicate offense under either 16 approach, the underlying offense must require proof of an intentional use of force or a substantial risk that force will be intentionally used during its commission.), citing United States v. Gomez"Leon, 545 F.3d 777 (9th Cir. 2008) (emphasis added).

AGGRAVATED FELONY " CRIME OF VIOLENCE " KIDNAPPING
Delgado-Hernandez v. Holder, 697 F.3d 1125 (9th Cir. Oct. 9, 2012) (California conviction for attempted kidnapping under Penal Code 207(a) is categorically an aggravated felony crime of violence, because an ordinary case of kidnapping punished under the statute presents a substantial risk of force).

AGGRAVATED FELONY " SEXUAL ABUSE OF A MINOR " SEXUAL BATTERY
Sanchez-Avalos v. Holder, 693 F.3d 1011 (9th Cir. Sept. 4, 2012) (California conviction of sexual battery, in violation of Penal Code 243.4(a), did not categorically constitute a sexual abuse of a minor aggravated felony, because the elements do not require that the victim be a minor, and the evidence admissible under the modified categorical analysis did not establish that the victim was a minor).

AGGRAVATED FELONY " CRIME OF VIOLENCE " RESISTING OFFICER
Flores-Lopez v. Holder, 685 F.3d 857 (9th Cir. Jul. 9, 2012) (California conviction of resisting an executive officer in violation of Penal Code 69 is not a categorical crime of violence aggravated felony, under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), because it requires only use of de minimis force; the idea that resisting executive officer would inevitably lead to use of violent, physical force was speculative).

AGGRAVATED FELONY " CRIME OF VIOLENCE " FIRST DEGREE ASSAULT
United States v. Castillo-Marin, 684 F.3d 914 (9th Cir. Jul. 3, 2012) (New York conviction of assault in the first degree, under New York Penal Law 120.10, was not categorically a crime of violence, for illegal re-entry purposes, because it includes reckless endangerment and causing injury during flight, which do not prohibit only conduct that involves an intent to injure, and may be committed with mere recklessness).

AGGRAVATED FELONY " CRIME OF VIOLENCE " BURGLARY
United States v. Ramos-Medina, 682 F.3d 852, 857 (9th Cir. Jun. 21, 2012) (California conviction of burglary, under Penal Code 459, constituted a crime of violence under immigration laws, based on United States v. Becker, 919 F.2d 568 (9th Cir.1990), finding Penal Code 459 a crime of violence under 18 U.S.C. 16(b), and Lopez"Cardona v. Holder, 662 F.3d 1110 (9th Cir. 2011), which establish that burglary under California Penal Code 459 is categorically a crime of violence and thus an aggravated felony for the purposes of the INA: "[e]very violation of 459 might not present that level of risk: but the proper inquiry for the categorical approach is whether the conduct covered by the crime presents the requisite risk of injury in the ordinary case. ).

AGGRAVATED FELONY " CRIMES OF VIOLENCE " KIDNAPPING
United States v. Marquez-Lobos, 683 F.3d 1061 (9th Cir. Jun. 19, 2012) (Arizona conviction of kidnapping, under Arizona Revised Statute 13-1304, is affirmed where it categorically meets the generic definition of "crime of violence" in U.S.S.G. 2L1.2(b)(1)(A), for purposes of imposing a 16-level sentence enhancement for illegal reentry).

AGGRAVATED FELONY " CRIME OF VIOLENCE " ATTEMPTED AGGRAVATED ASSAULT
United States v. Gomez-Hernandez, 680 F.3d 1171 (9th Cir. May 31, 2012) (Arizona attempted aggravated assault conviction, for attempting to "intentionally, knowingly or recklessly" cause a physical injury with a deadly weapon is categorically a crime of violence for illegal re-entry sentencing purposes because one cannot "attempt" to commit a reckless act, and therefore the conviction must have involved intent, rather than recklessness).

AGGRAVATED FELONY " DRUG TRAFFICKING OFFENSE
United States v. Leal-Vega, 680 F.3d 1160 (9th Cir. May 30, 2012) (California conviction for violation of Health & Safety Code 11351, possession of a controlled substance for sale, is not categorically a drug trafficking offense for illegal re-entry sentencing purposes, because it is possible to be convicted under this statute for possession of a substances not listed on the federal controlled substances schedule; charging language made clear that offense involved a controlled substance, applying the modified categorical analysis), agreeing with United States v. Sanchez"Garcia, 642 F.3d 658, 661"62 (8th Cir. 2011). NOTE: Although refusing to follow similar cases in the immigration context, the Ninth Circuit found that under the sentencing guidelines, the term "controlled substance" also only refers to substances listed in the Federal schedules.

RELIEF " CONSULAR PROCESSING " CONSULAR NONREVIEWABILITY " JUDICIAL REVIEW
Rivas v. Napolitano, 677 F.3d 849 (9th Cir. Apr. 25, 2012) ("Federal courts are generally without power to review the actions of consular officials. Li Hing of Hong Kong, Inc. v. Levin, 800 F.2d 970, 971 (9th Cir.1986). However, at least two exceptions to this rule exist. First, a court has jurisdiction to review a consular official's actions 'when [the] suit challenges the authority of the consul to take or fail to take an action as opposed to a decision within the consul's discretion.' Patel v. Reno, 134 F.3d 929, 931"32 (9th Cir.1997). Second, the court has jurisdiction to review a consular official's acti5ons when the government denies a visa without a 'facially legitimate and bona fide reason.' Bustamante v. Mukasey, 531 F.3d 1059, 1060 (9th Cir.2008)."; the Mandamus Act, at 28 U.S.C. 1361 give the court jurisdiction to require Government take action to consider request to review denial of an I-601 waiver).

AGGRAVATED FELONY " CRIME OF VIOLENCE " RESIDENTIAL BURGLARY
Kwong v. Holder, ___ F.3d ___, 2011 WL 6061513 (9th Cir. Dec. 7, 2011) (California conviction of first-degree burglary, in violation of Penal Code 459, 460(a), constituted an aggravated felony crime of violence, since the abstract of judgment established the conviction was of first-degree burglary, as defined in Penal Code 460(a) -- burglary of an inhabited dwelling house, vessel ... which is inhabited and designed for habitation, floating home ..., or trailer coach ..., or the inhabited portion of any other building.); following United States v. Becker, 919 F.2d 568, 573 (9th Cir. 1990) (California conviction of first-degree burglary under Penal Code 459 is a crime of violence because it involves a substantial risk that physical force may be used in the course of committing the offense); Lopez"Cardona v. Holder, ___ F.3d ___, 2011 WL 5607634 (9th Cir. Nov. 18, 2011) (California conviction of first-degree burglary, in violation of California Penal Code 459, was a crime of violence within the meaning of 18 U.S.C. 16(b)), distinguishing United States v. Aguila"Montes de Oca, 655 F.3d 915 (9th Cir.2011) (en banc) (California conviction of first-degree burglary, under Penal Code 459, did not categorically constitute burglary).

AGGRAVATED FELONY " CRIME OF VIOLENCE " COERCION
Cortez-Guillen v. Holder, 623 F.3d 933 (9th Cir. Oct. 5, 2010) (Alaska conviction of coercion, in violation of Alaska Statute 11.41.530(a)(1), compelling another to do an act by instilling fear of injury or commission of any other crime, did not categorically constitute a crime of violence aggravated felony, under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), because it could be committed by a threat of a nonviolent crime such as blackmail).

Lower Courts of Ninth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " ASSAULT
United States v. Sahagun-Gallegos, ___ F.3d ___, 2015 WL 1591446 (9th Cir. Apr. 10, 2015) (Arizona conviction of assault, under A.R.S. 13"1204(A), is overbroad with respect to 18 U.S.C. 16, because the definition of assault in subsection (1) of the Arizona statute includes simple recklessness, whereas a crime of violence requires a mens rea of at least heightened recklessness, see United States v. Gomez"Hernandez, 680 F.3d 1171, 1175 (9th Cir. 2012), and is divisible); see United States v. Cabrera"Perez, 751 F.3d 1000, 1004"05 (9th Cir. 2014).

AGGRAVATED FELONY " CRIME OF VIOLENCE " ASSAULT
United States v. Sahagun-Gallegos, ___ F.3d ___, 2015 WL 1591446 (9th Cir. Apr. 10, 2015) (Arizona conviction of assault, under A.R.S. 13"1203(A)(2) is categorically a crime of violence, under 18 U.S.C. 16, and INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), because it is an offense that has as an element the use, attempted use, or threatened use of physical force against the person of another.); following United States v. Cabrera"Perez, 751 F.3d 1000, 1004"05 (9th Cir.2014).

AGGRAVATED FELONY " CRIME OF VIOLENCE " ESCAPE FROM CUSTODY
United States v. Simmons, 782 F.3d 510 (9th Cir. Apr. 3, 2015) (Hawaii conviction of second-degree escape from custody, in violation of Hawaii Revised Statutes 710"1021, did not categorically constitute a crime of violence, under U.S. Sentencing Guidelines (Sentencing Guidelines or U.S.S.G.) 4B1.1(a), because it includes both active and passive forms of escape); see Chambers v. United States, 555 U.S. 122, 126"27, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009).

AGGRAVATED FELONY " CHILD PORNOGRAPHY
People v. Petrovic, 224 Cal.App.4th 1510, 169 Cal.Rptr.3d 648 (2d Dist. Mar. 26, 2014) (California conviction of knowingly possessing or controlling child pornography on a computer, under Penal Code 311.11(a), punished merely visiting child pornography websites, without evidence of actual possession or control of the pornography), compare United States v. Kuchinski, 469 F.3d 853 (9th Cir. 2006) (Where a defendant lacks knowledge about the cache files, and concomitantly lacks access to and control over those files, it is not proper to charge him with possession and control of the child pornography).

Tenth Circuit

AGGRAVATED FELONY " SEXUAL ABUSE OF A MINOR" INDECENT PROPOSAL TO A CHILD
United States v. Martinez-Zamaripa, 680 F.3d 1221 (10th Cir. Jun. 1, 2012) (Oklahoma conviction of indecent proposal to a child, in violation of Okla. Stat. Ann. tit. 21, 1123(A)(1) (1995) (any oral ... lewd or indecent proposal to any child under sixteen (16) years of age for the child to have unlawful sexual relations ... with any person.), constituted enumerated offense sexual abuse of a minor, under U.S.S.G. 2L1.2 cmt. N. 1(B)(iii), for illegal re-entry sentencing purposes).

Eleventh Circuit

AGGRAVATED FELONY " FRAUD " UTTERING FORGED INSTRUMENT
Walker v. U.S. Atty. Gen., ___ F.3d ___, 2015 WL 1782677 (11th Cir. Apr. 21, 2015) (Florida conviction of uttering a forged instrument, under Fla. Stat. 831.02, is categorically an aggravated felony fraud or deceit offense, under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), because the violator utters and publishes as true something that the violator know[s] to be false, whether this is done with intent to injure or intent to defraud).

AGGRAVATED FELONY " CRIME OF VIOLENCE " THROWING A DEADLY MISSLE AT AN OCCUPIED VEHICLE
United States v. Estrada, ___ F.3d ___, 2015 WL 479969 (11th Cir. Feb. 6, 2015) (per curiam) (Florida conviction for throwing a deadly missile, a violation of Florida Statute 790.19, was not categorically a conviction for a crime of violence, for illegal reentry sentencing purposes, because We concluded that Estrella could be deemed to have been convicted of a crime of violence if his conviction was for wanton conduct, because Florida law defines wanton to mean that one has acted intentionally or with reckless indifference to the consequences and with knowledge that damage is likely to be done to some person. Id. at 1253. But if instead Estrella had been convicted of only malicious conduct, the latter was satisfied by knowledge that injury or damage would be done to a person or to property and, in that case, Estrella would not be deemed to have been convicted of a crime of violence.), following United States v. Estrella, 758 F.3d 1239 (11th Cir. 2014).

AGGRAVATED FELONY " CRIME OF VIOLENCE " AGGRAVATED FLEEING
Dixon v. U.S. Atty. Gen., 768 F.3d 1339 (11th Cir. Oct. 1, 2014) (Florida conviction for aggravated fleeing, Fla. Stat. 316.1935(4)(a), is categorically a crime of violence under 18 U.S.C. 16(b), for purposes of triggering deportation under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), because it involves a substantial risk that intentional violent force will be used in the commission of the offense).

AGGRAVATED FELONY " THEFT " SHOPLIFTING
Ramos v. U.S. Attorney General, 709 F.3d 1066 (11th Cir. Feb. 19, 2013) (Georgia conviction of shoplifting, in violation of Georgia Code 16"8"14(a)(1) [theft has two alternative intent elements: the intent of appropriating merchandise to his own use without paying for the same or to deprive the owner of possession thereof or of the value thereof, in whole or in part ...], is not categorically an aggravated felony theft offense, for purposes of deportability, because it can be committed with mere intent to appropriate, which falls outside the generic definition of aggravated felony theft); following Jaggernauth v. U.S. Attorney General, 432 F.3d 1346 (11th Cir. 2005) (a theft statute that included two disjunctive intent requirements"an intent to deprive and an intent to appropriate"was divisible and did not categorically constitute an aggravated felony theft offense).

Other

PRACTICE ADVISORY " CATEGORICAL ANALYSIS " DIVISIBLE STATUTE
See Immigrant Legal Resource Center, Practice Advisory, Great Ninth Circuit Case on Divisible Statutes: California Burglary Never Is Attempted Theft. In Rendon v. Holder the Ninth Circuit clarified when a statute is truly divisible under the categorical approach, and held that California burglary (Penal Code 459) never constitutes the aggravated felony attempted theft. This holding also means that California burglary never is a crime involving moral turpitude, under the categorical approach. http://www.ilrc.org/resources/great-ninth-circuit-case-on-divisible-statutes-california-burglary-never-is-attempted-theft

CONTROLLED SUBSTANCES " UNIDENTIFIED DRUG " PAULUS DEFENSE
Richard Collins, Esq., thinks Chorionic Gonadatropin is not a federally controlled anabolic steroid, although prohibited in California and New York. Convictions under California Health & Safety Code 11377 and 11378 are not categorically offenses relating to a controlled substance because California regulates "numerous substances that are not similarly regulated by the CSA. Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1078"79 (9th Cir. 2007); see also Mielewczyk v. Holder, 575 F.3d 992, 995 (9th Cir. 2009).

IMMIGRATION OFFENSES " FEDERAL LAW PREEMPTS STATE IDENTITY FRAUD PROSECUTIONS RELATED TO FEDERAL I-9 FORMS
State v. Reynua, State of Minnesota, Mower County District Court (Jul. 23, 2012) (File No. 50-CR-09-1811) (unpublished) (admission of an I-9 form in a state forgery prosecution was reversible error); on remand after State v. Reynua, 807 N.W.2d 473 (Minn. App. 2011), review granted, revd in part and remanded (Minn. Feb. 28, 2012) (8 U.S.C. 1324a(b)(5) means what it says -- that other than specified federal prosecutions, the I-9 form and appended documents may not be used to establish a state crime).

AGGRAVATED FELONY " CRIME OF VIOLENCE " RESISTING EXECUTIVE OFFICER
People v. Nishi, 207 Cal.App.4th 954, 143 Cal.Rptr.3d 882 (1st Dist. Jul. 13, 2012) (California Penal Code 69, attempting to deter or resist an executive officer in the performance of duty, is affirmed where the prosecution established the elements of the offense by substantial evidence; the central requirement of an offense under 69 is an attempt to deter an executive officer from performing his or her duties imposed by law; unlawful violence, or a threat of unlawful violence, is merely the means by which the attempt is made; such threat is limited to a threat of unlawful violence used in an attempt to deter the officer).

AGGRAVATED FELONY " SEXUAL ABUSE OF A MINOR " STATUTORY RAPE
United States v. Vidal-Mendoza, ___ F.Supp.3d ___, 2011 WL 1560987 (D.Or. Apr. 25, 2011) (Oregon conviction of rape in the third degree, under Or. Rev. Statute 163.355 [sexual intercourse with another person under 16 years of age.], held not categorically an aggravated felony under INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A), because the Oregon statute allows for a conviction if the person has sexual intercourse with another person under 16 years of age, O.R.S. 163.355(1), which is broader than the elements of sexual abuse of a minor as defined in federal criminal law at 18 U.S.C. 2243: Because O.R.S. 163.355 does not require a four year age difference between the defendant and the minor, it is broader than the generic offense of sexual abuse of a minor and, therefore, is not categorically an aggravated felony under [8 U.S.C.] 1101(a)(43)(A).); Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1158 (9th Cir. 2008).

PRACTICE ADVISORY POST CON RELIEF " MOTION TO REDUCE FELONY TO MISDEMEANOR RELIEF " WAIVERS " NON-LPR CANCELLATION " CMT CONVICTION BAR " BAR DOES NOT REQUIRE THAT THE CONVICTION ACTUALLY TRIGGER INADMISSIBILITY OR DEPORTABILITY
A reduction of a felony to a misdemeanor, in a jurisdiction in which the maximum sentence for a misdemeanor is no greater than one year, may enable a client to qualify for the Petty Offense Exception to CMT inadmissibility if the other requirements for the POE are met. INA 212(a)(2)(A)(ii)(II), 8 U.S.C. 1182(a)(2)(A)(ii)(II). See, e.g., California Penal Code 17(b)(3). If the felony is reduced to a misdemeanor, the maximum punishment for the offense is reduced to one year, which is small enough to qualify for the Petty Offense Exception. LaFarga v. INS, 170 F.3d 1213 (9th Cir. 1999). This conviction, however, may still disqualify the client from eligibility for non-LPR cancellation. This bar for being convicted under INA 212(a) or 237(a)(2) does not require that a noncitizen actually be inadmissible or deportable under one of these statutes. Matter of Cortez, 25 I&N Dec. 301 (BIA 2010); Matter of Gonzalez-Silva, 24 I&N Dec. 218 (BIA 2007). The Ninth Circuit shares this view. Vasquez-Hernandez v. Holder, 90 F.3d 1053 (9th Cir. 2010); Mota v. Mukasey, 543 F.3d 1165 (9th Cir.2008). In deciding whether a person has been convicted of an offense under INA 212(a)(2), 237(a)(2), and 237(a)(3) for purposes of non-LPR cancellation, the BIA will look only to language specifically pertaining to the criminal offense, such as the offense itself and the sentence imposed or potentially imposed. Matter of Cortez, 25 I&N Dec. 301 (BIA 2010). In deciding whether a conviction is described under INA 212(a)(2), 237(a)(2), and 237(a)(3) for eligibility for non-LPR cancellation, the BIA will not consider whether the conviction was within five years of admission or other immigration requirements necessary for deportability. Matter of Cortez, 25 I&N Dec. 301 (BIA 2010). If an offense qualifies for the Petty Offense Exception and is punishable by less than a year, the noncitizen is eligible for cancellation because offense is not described under INA 237(a)(2), the crime of moral turpitude ground of deportability. Matter of Pedroza, 25 I&N Dec. 312 (BIA 2010).