Some aggravated felonies are explicitly described as falling within specific federal criminal statutes.[310]  For example, INA § 101(a)(43)(H) defines as an aggravated felony “an offense described in section 875, 876, 877, of title 18, United States Code (relating to the demand for or receipt of ransom) . . . .”  (Emphasis supplied.)  This includes both state and federal offenses.[311]  Thus, a state conviction that requires all the same elements to be proven as the federal conviction for violation of a listed federal statute is “described” under that section of the aggravated felony definition. 

 

            Conversely, if the state conviction does not require proof of an element that is required to convict under federal law, the state conviction is not described in the federal statute, and thus the state conviction does not fall within that section of the aggravated felony definition.[312] 

 

The one exception to this rule is the jurisdictional element required of all federal criminal statutes under the United States Constitution.  This jurisdictional element is often contained in a requirement such as importing or exporting into the United States, or carrying across state lines, or specifically acting against the United States government.  The Ninth Circuit, for example, held that a violation of California Penal Code § 12021, possession of a firearm by a felon, constitutes an aggravated felony because it is an offense described in 18 U.S.C. § 922(g)(1), even though the interstate commerce element of the federal statute is not required in order to convict under the state law.[313]

 

The Board of Immigration Appeals initially accepted the argument that a state court conviction for felon in possession of a firearm could not be an aggravated felony because the state statute defining the offense lacked the jurisdictional element relating to interstate commerce that was present in the analogous federal statute.[314]  However, just a little more than a year later, the BIA reconsidered the question on its own motion and reversed its previous decision to bring its position into conformity with the Ninth Circuit.[315]

 

            Where a federal statute is cited in the aggravated felony definition, counsel must carefully compare it to the analogous state statute of conviction.  In the Sentencing Guidelines context, the Ninth Circuit has held that the conduct required by the elements of the state offense must invariably fall within the boundaries of the federal offense for the state conviction to be “described in” the cited federal statute: where conduct could violate a state statute, yet not violate the referenced federal statute, a state conviction does not constitute an aggravated felony “described in” the federal statute.[316]

[310] INA § § 101(a)(43)(B), (C), (D), (E), (F), (H), (I), (J), (K)(ii), (K)(iii), (L), (M)(ii), (N), (O), (P), 8 U.S.C. § § 1101(a)(43)(B), (C), (D), (E), (F), (H), (I), (J), (K)(ii), (K)(iii), (L), (M)(ii), (N), (O), (P).

[311] The third to last paragraph in INA § 101(a)(43), 8 U.S.C. § 1101(a)(43) states: “The term [aggravated felony] applies to an offense described in this paragraph whether in violation of Federal or State law . . . .” 

[312] See, e.g., United States v. Sandoval-Barajas, 206 F.3d 853 (9th Cir. 2000) (state conviction for possession of firearm by any alien was not ‘described in’ federal equivalent, 18 U.S.C. § 922(g)(5), which requires the noncitizen be undocumented).

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

[314] Matter of Vasquez-Muniz, 22 I. & N. Dec. 1415 (BIA Dec. 1, 2000), reversed, 23 I. & N. Dec. 207 (BIA Jan. 15, 2002). 

[315] Matter of Vasquez-Muniz, 23 I. & N. Dec. 207 (BIA Jan. 15, 2002).

[316] 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 of referenced federal statutes are discussed in more detail at ILRC § 9.5 (Part C).

PRACTICE ADVISORY " AGGRAVATED FELONIES " CHECKLIST OF AGGRAVATED FELONY OFFENSES THAT MAY BE STATE CONVICTIONS MEETING THE DEFINITION, EVEN IF THEY LACK THE FEDERAL JURISDICTIONAL ELEMENT OF THE CORRESPONDING FEDERAL OFFENSE
Under the analysis of Bautista v. Atty Gen. of the U.S., 744 F.3d 54, 59 (3d Cir. Feb. 28, 2014), convictions of state offenses listed in the aggravated felony definition statute, INA 101(a)(43), 8 U.S.C. 1101(a)(43), as defined in a federal statute, can qualify as aggravated felony convictions, even if they lack the federal jurisdictional element of, and are therefore not punishable under, the federal statute(s) referred to in the definition. This includes, for example, convictions of illicit trafficking in a controlled substance, under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), illicit trafficking in firearms or destructive devices (as defined in section 921 of Title 18) or in explosive materials (as defined in section 841(c) of that title) under INA 101(a)(43)(C), 8 U.S.C. 1101(a)(43)(C), and crimes of violence (as defined in section 16 of Title 18, under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F).

Third Circuit

AGGRAVATED FELONY " DEFINED IN VS DESCRIBED IN
Bautista v. Atty Gen. of the U.S., 744 F.3d 54, 59 (3d Cir. Feb. 28, 2014) (Section 101(a)(43) uses defined in when the reference to a federal statute is preceded by criminal conduct terms, such as illicit trafficking of drugs or crime of violence, which Congress has chosen to define by reference to a federal statute. In these defined in subsections of 101(a)(43), the state conviction need not be punishable under that federal statute but need only include the listed criminal conduct, as it is defined by the federal statute. In contrast, Congress employs described in to classify a state conviction as an aggravated felony when an offense would be punishable under a federal statute because the conduct or state statute of the conviction encompasses the same elements as a federal statute. These federal statutes are not definitional but, rather, describe a specific type of offense.).

Other

PRACTICE ADVISORY " AGGRAVATED FELONIES " CHECKLIST OF AGGRAVATED FELONY OFFENSES THAT MAY NOT BE STATE CONVICTIONS IF THEY ARE NOT PUNISHABLE UNDER THE CORRESPONDING FEDERAL STATUTE, BECAUSE THEY LACK ANY ELEMENT, SUCH AS THE FEDERAL JURISDICTIONAL ELEMENT, OF THE CORRESPONDING FEDERAL OFFENSE
Under the analysis of Bautista v. Atty Gen. of the U.S., 744 F.3d 54, 59 (3d Cir. Feb. 28, 2014), the court concluded that offenses in the aggravated felony definition statute, INA 101(a)(43), 8 U.S.C. 1101(a)(43), that are listed as described in a specific federal criminal statute, must be actually punishable under that statute to be considered aggravated felonies. This means they cannot be met by corresponding state offenses, a person convicted of a state offense is not actually punishable under the federal criminal statute, because the state offense lacks any element, such as the federal jurisdictional element, of the federal statute(s) referred to in the definition. After considering offenses in the aggravated felony statute that are defined in a listed federal statute, the court in Bautista continued: In contrast, Congress employs described in to classify a state conviction as an aggravated felony when an offense would be punishable under a federal statute because the conduct or state statute of the conviction encompasses the same elements as a federal statute. Id. at 59. The aggravated felony statute reinforces this conclusion by referring only to state offenses described in portions of this definition as qualifying under the definition. See INA 101(a)(43) (paragraph following U), 8 U.S.C. 1101(a)(43) (paragraph following U) (The term applies to an offense described in this paragraph whether in violation of Federal or State law . . . .) (emphasis supplied). This exact language states in effect that state offenses may only qualify under portions of this definition that use the formulation described in but not to those said to be defined in federal statutes. The following checklist contains the aggravated felonies the statute states are described in a federal statute. To meet these definitions, and be considered aggravated felonies, a conviction must be for an offense that is in fact punishable under the listed federal statute, so all elements, including federal jurisdictional elements, must be present in the definition of the offense of conviction, even if it is a state offense, before the conviction can be considered an aggravated felony. (1) an offense described in section 1956 of Title 18 (relating to laundering of monetary instruments) or section 1957 of that title (relating to engaging in monetary transactions in property derived from specific unlawful activity) if the amount of the funds exceeded $10,000; under INA 101(a)(43)(D), 8 U.S.C. 1101(a)(43)(D). (2) an offense described in-- (i) section 842(h) or (i) of Title 18, or section 844(d), (e), (f), (g), (h), or (i) of that title (relating to explosive materials offenses); (ii) section 922(g)(1), (2), (3), (4), or (5), (j), (n), (o), (p), or (r) or 924(b) or (h) of Title 18 (relating to firearms offenses); or (iii) section 5861 of Title 26 (relating to firearms offenses); under INA 101(a)(43)(E), 8 U.S.C. 1101(a)(43)(E). (3) an offense described in section 875, 876, 877, or 1202 of Title 18 (relating to the demand for or receipt of ransom); under INA 101(a)(43)(H), 8 U.S.C. 1101(a)(43)(H). (4) an offense described in section 2251, 2251A, or 2252 of Title 18 (relating to child pornography); under INA 101(a)(43)(I), 8 U.S.C. 1101(a)(43)(I). (5) an offense described in section 1962 of Title 18 (relating to racketeer influenced corrupt organizations), or an offense described in section 1084 (if it is a second or subsequent offense) or 1955 of that title (relating to gambling offenses), for which a sentence of one year imprisonment or more may be imposed; under INA 101(a)(43)(J), 8 U.S.C. 1101(a)(43)(J). (6) an offense that -- (i) relates to the owning, controlling, managing, or supervising of a prostitution business; (ii) is described in section 2421, 2422, or 2423 of Title 18 (relating to transportation for the purpose of prostitution) if committed for commercial advantage; or (iii) is described in any of sections 1581-1585 or 1588-1591 of Title 18 (relating to peonage, slavery, involuntary servitude, and trafficking in persons); under INA 101(a)(43)(K), 8 U.S.C. 1101(a)(43)(K). (7) an offense described in -- (i) section 793 (relating to gathering or transmitting national defense information), 798 (relating to disclosure of classified information), 2153 (relating to sabotage) or 2381 or 2382 (relating to treason) of Title 18; (ii) section 421 of Title 50 (relating to protecting the identity of undercover intelligence agents); or (iii) section 421 of Title 50 (relating to protecting the identity of undercover agents); under INA 101(a)(43)(L), 8 U.S.C. 1101(a)(43)(L). (8) an offense that -- (i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; or (ii) is described in section 7201 of Title 26 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000; under INA 101(a)(43)(M), 8 U.S.C. 1101(a)(43)(M). (9) an offense described in paragraph (1)(A) or (2) of section 1324(a) of this title (relating to alien smuggling), except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien's spouse, child, or parent (and no other individual) to violate a provision of this chapter; under INA 101(a)(43)(N), 8 U.S.C. 1101(a)(43)(N). (10) an offense described in section 1325(a) or 1326 of this title committed by an alien who was previously deported on the basis of a conviction for an offense described in another subparagraph of this paragraph; under INA 101(a)(43)(O), 8 U.S.C. 1101(a)(43)(O). (11) an offense (i) which either is falsely making, forging, counterfeiting, mutilating, or altering a passport or instrument in violation of section 1543 of Title 18 or is described in section 1546(a) of such title (relating to document fraud) and (ii) for which the term of imprisonment is at least 12 months, except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien's spouse, child, or parent (and no other individual) to violate a provision of this chapter; under INA 101(a)(43)(P), 8 U.S.C. 1101(a)(43)(P). (12) an offense relating to a failure to appear by a defendant for service of sentence if the underlying offense is punishable by imprisonment for a term of 5 years or more; under INA 101(a)(43)(Q), 8 U.S.C. 1101(a)(43)(Q). (13) an offense relating to commercial bribery, counterfeiting, forgery, or trafficking in vehicles the identification numbers of which have been altered for which the term of imprisonment is at least one year; under INA 101(a)(43)(R), 8 U.S.C. 1101(a)(43)(R). (14) an offense relating to obstruction of justice, perjury or subornation of perjury, or bribery of a witness, for which the term of imprisonment is at least one year; under INA 101(a)(43)(S), 8 U.S.C. 1101(a)(43)(S). (15) an offense relating to a failure to appear before a court pursuant to a court order to answer to or dispose of a charge of a felony for which a sentence of 2 years' imprisonment or more may be imposed; under INA 101(a)(43)(T), 8 U.S.C. 1101(a)(43)(T). (16) an attempt or conspiracy to commit an offense described in this paragraph. under INA 101(a)(43)(U), 8 U.S.C. 1101(a)(43)(U).

PRACTICE ADVISORY " AGGRAVATED FELONIES " CHECKLIST OF AGGRAVATED FELONY OFFENSES THAT MAY NOT BE STATE CONVICTIONS IF THEY ARE NOT PUNISHABLE UNDER THE CORRESPONDING FEDERAL STATUTE, BECAUSE THEY LACK ANY ELEMENT, SUCH AS THE FEDERAL JURISDICTIONAL ELEMENT, OF THE CORRESPONDING FEDERAL OFFENSE
Under the analysis of Bautista v. Atty Gen. of the U.S., 744 F.3d 54, 59 (3d Cir. Feb. 28, 2014), the court concluded that offenses in the aggravated felony definition statute, INA 101(a)(43), 8 U.S.C. 1101(a)(43), that are listed as described in a specific federal criminal statute, must be actually punishable under that statute to be considered aggravated felonies. This means they cannot be met by corresponding state offenses, a person convicted of a state offense is not actually punishable under the federal criminal statute, because the state offense lacks any element, such as the federal jurisdictional element, of the federal statute(s) referred to in the definition. After considering offenses in the aggravated felony statute that are defined in a listed federal statute, the court in Bautista continued: In contrast, Congress employs described in to classify a state conviction as an aggravated felony when an offense would be punishable under a federal statute because the conduct or state statute of the conviction encompasses the same elements as a federal statute. Id. at 59. The aggravated felony statute reinforces this conclusion by referring only to state offenses described in portions of this definition as qualifying under the definition. See INA 101(a)(43) (paragraph following U), 8 U.S.C. 1101(a)(43) (paragraph following U) (The term applies to an offense described in this paragraph whether in violation of Federal or State law . . . .) (emphasis supplied). This exact language states in effect that state offenses may only qualify under portions of this definition that use the formulation described in but not to those said to be defined in federal statutes. The following checklist contains the aggravated felonies the statute states are described in a federal statute. To meet these definitions, and be considered aggravated felonies, a conviction must be for an offense that is in fact punishable under the listed federal statute, so all elements, including federal jurisdictional elements, must be present in the definition of the offense of conviction, even if it is a state offense, before the conviction can be considered an aggravated felony. (1) an offense described in section 1956 of Title 18 (relating to laundering of monetary instruments) or section 1957 of that title (relating to engaging in monetary transactions in property derived from specific unlawful activity) if the amount of the funds exceeded $10,000; under INA 101(a)(43)(D), 8 U.S.C. 1101(a)(43)(D). (2) an offense described in-- (i) section 842(h) or (i) of Title 18, or section 844(d), (e), (f), (g), (h), or (i) of that title (relating to explosive materials offenses); (ii) section 922(g)(1), (2), (3), (4), or (5), (j), (n), (o), (p), or (r) or 924(b) or (h) of Title 18 (relating to firearms offenses); or (iii) section 5861 of Title 26 (relating to firearms offenses); under INA 101(a)(43)(E), 8 U.S.C. 1101(a)(43)(E). (3) an offense described in section 875, 876, 877, or 1202 of Title 18 (relating to the demand for or receipt of ransom); under INA 101(a)(43)(H), 8 U.S.C. 1101(a)(43)(H). (4) an offense described in section 2251, 2251A, or 2252 of Title 18 (relating to child pornography); under INA 101(a)(43)(I), 8 U.S.C. 1101(a)(43)(I). (5) an offense described in section 1962 of Title 18 (relating to racketeer influenced corrupt organizations), or an offense described in section 1084 (if it is a second or subsequent offense) or 1955 of that title (relating to gambling offenses), for which a sentence of one year imprisonment or more may be imposed; under INA 101(a)(43)(J), 8 U.S.C. 1101(a)(43)(J). (6) an offense that -- (i) relates to the owning, controlling, managing, or supervising of a prostitution business; (ii) is described in section 2421, 2422, or 2423 of Title 18 (relating to transportation for the purpose of prostitution) if committed for commercial advantage; or (iii) is described in any of sections 1581-1585 or 1588-1591 of Title 18 (relating to peonage, slavery, involuntary servitude, and trafficking in persons); under INA 101(a)(43)(K), 8 U.S.C. 1101(a)(43)(K). (7) an offense described in -- (i) section 793 (relating to gathering or transmitting national defense information), 798 (relating to disclosure of classified information), 2153 (relating to sabotage) or 2381 or 2382 (relating to treason) of Title 18; (ii) section 421 of Title 50 (relating to protecting the identity of undercover intelligence agents); or (iii) section 421 of Title 50 (relating to protecting the identity of undercover agents); under INA 101(a)(43)(L), 8 U.S.C. 1101(a)(43)(L). (8) an offense that -- (i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; or (ii) is described in section 7201 of Title 26 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000; under INA 101(a)(43)(M), 8 U.S.C. 1101(a)(43)(M). (9) an offense described in paragraph (1)(A) or (2) of section 1324(a) of this title (relating to alien smuggling), except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien's spouse, child, or parent (and no other individual) to violate a provision of this chapter; under INA 101(a)(43)(N), 8 U.S.C. 1101(a)(43)(N). (10) an offense described in section 1325(a) or 1326 of this title committed by an alien who was previously deported on the basis of a conviction for an offense described in another subparagraph of this paragraph; under INA 101(a)(43)(O), 8 U.S.C. 1101(a)(43)(O). (11) an offense (i) which either is falsely making, forging, counterfeiting, mutilating, or altering a passport or instrument in violation of section 1543 of Title 18 or is described in section 1546(a) of such title (relating to document fraud) and (ii) for which the term of imprisonment is at least 12 months, except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien's spouse, child, or parent (and no other individual) to violate a provision of this chapter; under INA 101(a)(43)(P), 8 U.S.C. 1101(a)(43)(P). (12) an offense relating to a failure to appear by a defendant for service of sentence if the underlying offense is punishable by imprisonment for a term of 5 years or more; under INA 101(a)(43)(Q), 8 U.S.C. 1101(a)(43)(Q). (13) an offense relating to commercial bribery, counterfeiting, forgery, or trafficking in vehicles the identification numbers of which have been altered for which the term of imprisonment is at least one year; under INA 101(a)(43)(R), 8 U.S.C. 1101(a)(43)(R). (14) an offense relating to obstruction of justice, perjury or subornation of perjury, or bribery of a witness, for which the term of imprisonment is at least one year; under INA 101(a)(43)(S), 8 U.S.C. 1101(a)(43)(S). (15) an offense relating to a failure to appear before a court pursuant to a court order to answer to or dispose of a charge of a felony for which a sentence of 2 years' imprisonment or more may be imposed; under INA 101(a)(43)(T), 8 U.S.C. 1101(a)(43)(T). (16) an attempt or conspiracy to commit an offense described in this paragraph. under INA 101(a)(43)(U), 8 U.S.C. 1101(a)(43)(U).

AGGRAVATED FELONY - JURISDICTIONAL ELEMENT
In United States v. Castillo-Rivera, 244 F.3d 1020 (9th Cir. 2001), the Ninth Circuit has already determined that the interstate commerce element under 922 should not be a requisite of the criminal state statute at issue when conducting the categorical matching process. The Ninth Circuit stated that the wording of INA 101 (a)(43) makes evident that Congress clearly intended state crimes to serve as predicate offenses for the purpose of defining what constitutes an aggravated felony. Id. The Court noted that 101(a)(43)(E) defines aggravated felony as "an offense described in" several federal statutory provisions, including 922(g)(1). Id. The Court reasoned:

[I]nterpreting the jurisdictional element of 922(g) to be necessary in order for a state firearms conviction to constitute an aggravated felony under 1101(a)(43)(E)(ii) would reduce the number of state firearms offenses that qualify to no more than a negligible number. Rarely, if ever, would a state firearms conviction specify whether a commerce nexus exists. If we were to construe the jurisdictional nexus of the federal felon in possession provision to be a necessary element for a state crime to qualify as an aggravated felony, we would undermine the language of the aggravated felony statute and the evident intent of Congress. Id.

However, Castillo-Rivera may be overruled by Estrada-Espinoza where the Ninth Circuit sitting en banc visited the same quandary and came to the opposite conclusion. This principle was reiterated in Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007) (en banc) (finding California accessory after the fact to be missing an entire element of the generic definition of a crime involving moral turpitude), and Kawashima v. Mukasey, 530 F.3d 1111 (9th Cir. 2008) (finding the state fraud statute missing an entire element of $10,000 loss the victim). Because the Ninth Circuit has now clarified en banc in two cases that there must be a categorical match to each element of the state statute to the federal immigration statute or generic definition, Castillo-Rivera was clearly overruled since the case circumvents this requirement. Because the state statute has no interstate commerce element, it is a categorical mismatch to the federal definition and Petitioner is not removable for his conviction as an aggravated felon. Thanks to Holly S. Cooper.