The aggravated felony statute includes: “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.”[762]  The elements of the trafficking in vehicles ground are:

 

            (1)  a conviction of an offense

            (2)  relating to

            (3)  trafficking in

            (4)  vehicles the identification numbers of which have been altered

            (5)  for which the term of imprisonment is at least one year.

 

If the government fails to establish any one of these essential elements by clear and convincing evidence, the ground of deportation has not been established.

 

            The concept of trafficking appears in two other aggravated felony categories, trafficking in controlled substances, and trafficking in firearms or destructive devices.  See § § 5.43, 5.51, supra.  Trafficking requires a commercial element.  Mere transfer of a vehicle without consideration would not be included in this category.  It is also worth examining the definition of “vehicle,” which arguably is a short form of “motor vehicle” meaning essentially car or truck, and if so this category would not apply to bicycles, airplanes, or other vehicles outside the definition.  The legislative history of this provision should be examined.

 

[762] INA § 101(a)(43)(R), 8 U.S.C. § 1101(a)(43)(R) (emphasis supplied).

Fourth Circuit

AGGRAVATED FELONY " THEFT OFFENSES " UNAUTHORIZED USE OF A MOTOR VEHICLE " DEFINITION OF THEFT
Castillo v. Holder, ___ F.3d ___, ___, 2015 WL 161952 (4th Cir. Jan. 14, 2015) (Virginia conviction of unauthorized use of a motor vehicle, in violation of Virginia Code 18.2"102 [take, drive or use any ... vehicle ... not his own, without the consent of the owner [ ] and in the absence of the owner, and with intent temporarily to deprive the owner [ ] of his possession [ ], without intent to steal the same, shall be guilty], did not categorically qualify as an aggravated felony theft offense, under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), because the full range of conduct covered by the Virginia crime of unauthorized use can and do arise based on circumstances in which the defendant's use of property deviates only slightly from the specific scope of consensual use, resulting in an insignificant effect on ownership interests. [Footnote omitted] These circumstances stand in stark contrast to crimes involving the intentional, nonconsensual takings that typically involve significant impairment of ownership rights and damage to the property as described by the BIA in its elaboration of the term theft offense. See VZS, 22 I. & N. Dec. at 1349.); quoting Overstreet v. Commonwealth, 17 Va.App. 234, 435 S.E.2d 906, 908 (Va.Ct.App.1993).

Eighth Circuit

AGGRAVATED FELONY - FIREARMS OFFENSE - CLAIM OF SPORTING USE EXCEPTION REJECTED
Alvarado v. Gonzales, 484 F.3d 535 (8th Cir. April 17, 2007) (per curiam) (federal conviction of possession of firearms and ammunition by an unlawful user of a controlled substance, under 18 U.S.C. 922(g)(3), constituted aggravated felony firearms conviction, for purposes of removal and cancellation of removal, despite the alleged sporting purpose of the guns at issue).