(A)  In General.  The aggravated felony deportation ground lists dozens of substantive criminal offenses.[333]  It also specifically lists “attempt and conspiracy to commit an offense described in this paragraph” as falling within the aggravated felony definition.[334]  See § § 3.16-3.17, supra.  This specific listing of two non-substantive offenses, attempt and conspiracy, gives rise to the argument that Congress did not include other similar non-substantive offenses since it did not list them in the aggravated felony statute.  See § 3.48(B), infra.[335]  Other non-substantive generic offenses that are similar to attempt and conspiracy, in that they apply to all substantive offenses, include: (a) accessory after the fact, see § 3.49, infra, (b) aiding and abetting, see § 3.50, infra, (c) facilitation, see § 3.51, infra, (d) misprision of a felony, see § 3.52, infra, (e) solicitation, see § 3.53, infra, and (f) other non-substantive offenses.  See § 3.54, infra.

 

            Many of the crime-related grounds of deportation and inadmissibility specifically list one or more of these non-substantive offenses, which are therefore expressly included in the particular ground.  See Appendix F, Non-Substantive Offenses.  If a defendant was convicted of a non-substantive offense, other than attempt or conspiracy, this Appendix can be checked for particular instances in which the particular non-substantive offense of conviction was expressly listed by Congress in other grounds, to establish that Congress knew how to include it when it wished to, thus strengthening the argument that Congress did not wish to include it as part of the aggravated felony definition statute.

 

            Thus, convictions of all non-substantive offenses, except attempt and conspiracy, should constitute safe havens, unless they are included within the particular aggravated felony category under consideration.  For example, the crime of violence aggravated felony category includes offenses with an element of attempted use of force.[336]  Some of the statutes specifically listed in the aggravated felony definition may also include certain non-substantive offenses.  Generally speaking, however, unless an express reference including a particular non-substantive offense can be found in the specific aggravated felony category, no non-substantive offense other than attempt or conspiracy will constitute an aggravated felony.

 

            Appendix F lists Congress’ specific references to various non-substantive offenses within different grounds of deportation.

 

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

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

[335] See Matter of Batista-Hernandez, 21 I. & N. Dec. 955 (BIA 1997) (accessory after the fact). 

[336] 18 U.S.C. § 16(a); INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F); United States v. Sarbia, 362 F.3d 558 (9th Cir. Mar. 22, 2004), opinion withdrawn 367 F.3d 1079 (9th Cir. May 14, 2004) (Nevada conviction for attempted discharge of a firearm at occupied structure an aggravated felony crime of violence for sentencing purposes; no distinction drawn between violent conduct and attempted violent conduct).

Ninth Circuit

NON-SUBSTANTIVE OFFENSES - STATUTORY CONSTRUCTION - EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS
Longview Fibre Co. v. Rasmussen, 980 F.2d 1307, 1312-13 (9th Cir. 1992) (statutory construction maxim expressio unius est exclusio alterius means when some statutory provisions expressly mention a requirement, the omission of that requirement from other statutory provisions implies that the drafter intended the inclusion of the requirement in the instances in which it was listed but not in others).