Aggravated Felonies

(D)  Advice for Counsel.  Counsel must carefully consider how the offense is defined under federal statute,[347] common law, the Model Penal Code, the law of most states, or other authoritative sources on criminal law.

[347] The elements of an offense contained in a federal statute provide useful input and may serve as the model for the offense definition.  See, e.g., Matter of Espinoza, 22 I. & N. Dec. 889 (BIA 1999) (BIA used federal statutory definition of obstruction of justice in considering whether misprision of felony fit the aggravated felony definition of the common term “obstruction of justice” at INA § 101 (a)(43)(S), 8 U.S.C. § 1101(a)(43)(S)); United States v. Anderson, 989 F.2d 310 (9th Cir. 1993), discussed in text.  Still, a common-law offense that is an aggravated felony does not necessarily take on the definition of a similarly named federal statute. Cedano-Viera v. Ashcroft, 324 F.3d 1062 (9th Cir. 2003).  The list of aggravated felony offenses in INA § 101(a)(43), 8 U.S.C. § 1101(a)(43) contains several offenses that are directly linked to definitions under federal statute, showing that Congress knew how to incorporate a federal statutory definition when it wanted to.