(A)  Argument that State Convictions are Included as Aggravated Felonies Only if they Fall Within a Generically Defined Listed Offense, but Cannot Fall Within an Aggravated Felony Offense Defined with Respect to a Federal Statute.   The Supreme Court has applied a “plain meaning” approach to the question of what is an aggravated felony.[139]  This gives new life to the argument that Congress’ inclusion of state convictions as aggravated felonies was limited to generically defined categories such as “murder” and “rape,” but does not extend to aggravated felonies identified as offenses “described in” a specific federal criminal statute.

 

            The aggravated felony definition includes several common-law terms that are defined without reference to a federal statute, such as theft, burglary, and rape.[140]  Evaluating whether a state offense is an aggravated felony involves a two-step process.  First, the courts must determine the actual elements of the generic offense that is included in the aggravated-felony definition.  Next, the court must determine whether every possible violation of the state statute invariably contains each of the elements of the generic aggravated-felony crime.[141]  In other words, the minimum conduct necessary to satisfy the elements of the state offense must always fall within the boundaries of the aggravated felony category before the state conviction will be held automatically to constitute an aggravated felony.[142]

 

            The aggravated felony definition also includes several offenses that are specifically referenced to federal statutes.  See, e.g., aggravated felonies “described in” specific federal criminal statutes defining firearms offenses, ransom offenses, and offenses against national defense.[143]  Where a federal statute is cited in the definition, counsel must carefully compare its elements to those of the analogous state statute.  In United States v. Sandoval-Barajas, for example, the Ninth Circuit held that all conduct encompassed within the elements of the state offenses must fall within the federal statute for the state offense to be one “described in” a cited federal statute: where some conduct could violate a state statute, yet not violate the referenced federal statute, a conviction under that state statute does not constitute an aggravated felony “described in” the federal statute.[144]  An additional issue, which the court did not reach, is whether the “obvious difference . . . that the federal statute requires an interstate or foreign commerce element, but the [state] statute does not,” compels the conclusion that the state violation is not “described in” the federal statute.[145]  In a later decision, however, the Ninth Circuit held a violation of California Penal Code § 12021, possession of a firearm by a felon, constitutes an aggravated felony for criminal sentence purposes when it involves a prior felony conviction, because it is an offense described in 18 U.S.C. § 922(g)(1), even though the interstate commerce nexus is not present in the elements of the state offense.[146]

 

Although the BIA had initially accepted the argument that a state court conviction for felon in possession of a firearm could not be an aggravated felony because the statute of conviction lacked the jurisdictional element relating to interstate commerce that was present in the analogous federal statute, it reconsidered that holding in Matter of Vasquez-Muniz and found that the state offense is indeed “described in” the federal statute, despite the absence of a nexus to interstate commerce.[147]

[139] See Leocal v. Ashcroft, 543 U.S. 1, 160 L. Ed. 2d 271, 125 S.Ct. 377 (2004) (Supreme Court uses “ordinary meaning” approach to conclude that accidental injury does not fall within ordinary meaning of “crime of violence” aggravated felony definition: “In construing both parts of § 16, we cannot forget that we ultimately are determining the meaning of the term ‘crime of violence.’ The ordinary meaning of this term, combined with § 16’s emphasis on the use of physical force against another person (or the risk of having to use such force in committing a crime), suggests a category of violent, active crimes that cannot be said naturally to include DUI offenses.”).

[140] See, e.g., INA § § 101(a)(43)(A) and (G), 8 U.S.C. § § 1101(a)(43)(A) and (G).

[141] See Taylor v. United States, 495 U.S. 575 (1990).

[142] Matter of Sweetser, 22 I. & N. Dec. 709 (BIA 1999)(conviction of criminally negligent child abuse under sections 18-6-401(1) and (7) of the Colorado Revised Statutes, where negligence in leaving stepson alone in a bathtub resulted in the child’s death, was not conviction of a crime of violence under 18 U.S.C. § 16(b), because there was no “substantial risk that physical force” would be used in the commission of the crime, and the conviction was therefore not an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F)).

[143] See INA § § 101(a)(43)(E), (H), and (L), 8 U.S.C. § § 1101(a)(43)(E), (H), and (L).

[144] United States v. Sandoval-Barajas, 206 F.3d 853 (9th Cir. 2000) (decision under the U.S. Sentencing Guidelines reversing 16-level increase in offense level for illegal re-entry, since state firearms offense was not “described in” federal firearms statute).  This comports with the test the BIA set out to compare state offenses to specific referenced federal drug offenses in Matter of Barrett, 20 I. & N. Dec. 171 (BIA 1990).  State analogues to referenced federal statutes are discussed in more detail infra.

[145] Id. at 856.

[146] United States v. Castillo-Rivera, 244 F.3d  1020 (9th Cir. 2001).

[147] Matter of Vasquez-Muniz, 21 I. & N. Dec. 1199 (BIA 2000), overruled, 23 I. & N. Dec. 207 (BIA 2002).

AGGRAVATED FELONY - STATE CONVICTIONS - AGGRAVATED FELONY CATEGORIES SPECIFICALLY COUCHED AS FEDERAL OFFENSES MAY NOT INCLUDE STATE CONVICTIONS
Lopez v. Gonzales, 549 U.S. ___,127 S.Ct. 638 (Dec. 5, 2006) (the language in the aggravated felony definition including certain state convictions "has two perfectly straightforward jobs to do: it provides that a generic description of "an offense . . . in this paragraph," one not specifically couched as a state offense or a federal one, covers either one, and it confirms that a state offense whose elements include the elements of a felony punishable under the CSA is an aggravated felony.").

     Footnote 6 in Lopez indicates that INA 101(a)(43)(B) -- the drug trafficking crime prong -- indicates some state convictions are included as drug trafficking crimes in 18 U.S.C. 924(c)(2) and therefore in 101(a)(43)(B), but that's a separate question from the question whether the sentence at the foot of 101(a)(43) after (U) means that all the aggravated felony categories, even those defined by reference to a specific federal statute, include state analogues. The post-U language can be explained as necessary to clarify that (B) includes some state offenses, and that the generic "murder"-type offenses include state offenses, without forcing the conclusion that the offenses defined in terms of specific federal statutes include state analogues as well. Can you really say that a state offense is "described in" a federal statute? There is a perfectly good plain meaning argument that it is not.