The aggravated felony definition lists dozens of criminal offenses as falling within the definition of “aggravated felony.”[128]  If the particular offense under examination can be considered a substantive offense, then it is necessary simply to see whether it falls on the list.  If the offense can be considered an inchoate, anticipatorial, or “non-substantive offense,” however, there may be arguments that the offense is not on the list unless Congress specifically included it.  Immigration counsel should therefore be alert for instances in which it is possible to argue (a) that the conviction is not for a substantive offense, but rather for an unlisted non-substantive offense, or (b) that the record of conviction is vague as to whether the conviction is for a substantive or a non-substantive offense, in which case the government cannot sustain its burden of proving by clear and convincing evidence that the noncitizen is deportable.  See § 3.48, infra.

 

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

Second Circuit

JUDICIAL REVIEW " PETITION FOR REVIEW " COLLATERAL ATTACK ON EXPEDITED REMOVAL ORDER
Shunaula v. Holder, 732 F.3d 143 (2d Cir. Oct. 16, 2013) (court of appeals lacked subject-matter jurisdiction to review alien's collateral attack of prior expedited removal, because claim that prior removal violated due process did not challenge the expedited removal system generally, its implementing regulations, or any written policies, and government was not seeking to use the prior expedited removal as an element of a criminal offense).

Fifth Circuit

JUDICIAL REVIEW - PETITION FOR REVIEW - EXHAUSTION OF REMEDIES - PRO SE LITIGANT
Burke v. Mukasey, ___ F.3d ___ (5th Cir. Dec. 10, 2007) (per curiam) (pro se argument before BIA that conviction was not aggravated felony included more specific argument conviction was not aggravated felony theft offense and thus exhausted the issue, because "[w]e read pro se pleadings and briefs with tolerance and understanding," Gochnour v. Marsh, 754 F.2d 1137, 1138 (5th Cir. 1985)).

Ninth Circuit

JUDICIAL REVIEW - PETITION FOR REVIEW - JURISDICTION DE NOVO OVER QUESTION OF LAW WHETHER RECORD ESTABLISHES CONVICTION IS AGGRAVATED FELONY
Sandoval-Lua v. Gonzales, ___ F.3d ___, 2007 WL 2421427 (9th Cir. Aug. 28, 2007) ("Whether the judicially noticeable documents in the administrative record establish that Lua's controlled substance offense is not an aggravated felony under 8 U.S.C. 1101(a)(43)(B) is a question of law. We thus review the BIA's decision de novo, rather than for substantial evidence."), citing Sinotes-Cruz v. Gonzales, 468 F.3d 1190, 1194 (9th Cir. 2006); Morales v. Gonzales, 478 F.3d 972, 979-80 (9th Cir. 2007).