(A)  No Prior Deportation Element in 8 U.S.C. § 1325(a).  Arguably, a conviction under 8 U.S.C. § 1325(a) should never trigger removal as an aggravated felon under INA § 101(a)(43)(O), because the fact of a prior deportation does not have to be proven in order to convict.[478]  This offense is committed by a noncitizen “who (1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or (2) eludes examination or inspection by immigration officers, or (3) attempts to enter or obtains entry to the United States by willfully false or misleading representation or the willful concealment of a material fact . . . .”  A first conviction of this offense is a misdemeanor with a six-month maximum, and a second conviction of this offense is a felony punishable by up to two years’ imprisonment.[479]

 

            The record of conviction for a violation of 8 U.S.C. § 1325(a) will not establish the existence of a prior deportation for an aggravated felony, since the prior deportation does not constitute an element of the illegal entry misdemeanor offense, and the immigration and federal courts are limited to examining the record of conviction in determining whether an offense constitutes an aggravated felony conviction.[480]

 

[478] On the other hand, if the aggravated felony ground could never be triggered by a conviction under this statute, due to a limit to examination of the elements of conviction, why would Congress include it in the definition?  See § 4.6, supra.

[479] INA § 275(a), 8 U.S.C. § 1325(a).

[480] Matter of Sweetser, 22 I. & N. Dec. 709 (BIA 1999).

Fifth Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING - DELIVERY OF A CONTROLLED SUBSTANCE
United States v. Gonzales, 484 F.3d 712 (5th Cir. 2007) (Texas conviction for delivery of a controlled substance, in violation of V.T.C.A., Health & Safety Code 481.112, was not a drug-trafficking offense for illegal re-entry sentence enhancement purposes, since the definition of "deliver" includes solicitation, and solicitation is not included as a non-substantive offense that can trigger a sentence enhancement under the 2004 version of U.S.S.G. 2L1.2).