Aggravated Felonies
Appendix A. Category Case Index
For more text, click "Next Page>"
Appendix A:
Aggravated Felonies by Category
Table of Contents
§ A.1 Introduction.......................................................................................... 636
§ A.2 Accessory After the Fact..................................................................... 637
§ A.3 Aiding and Abetting............................................................................. 638
§ A.4 Alien Harboring.................................................................................... 639
§ A.5 Alien Smuggling................................................................................... 640
§ A.6 Alien Transportation........................................................................... 641
§ A.7 Attempt.................................................................................................. 642
§ A.8 Bribery – Commercial......................................................................... 645
§ A.9 Bribery of Witness............................................................................... 646
§ A.10 Burglary................................................................................................. 646
§ A.11 Child Pornography............................................................................... 648
§ A.12 Conspiracy............................................................................................ 648
§ A.13 Counterfeiting....................................................................................... 651
§ A.14 Crimes of Violence.............................................................................. 652
§ A.15 Deceit..................................................................................................... 687
§ A.16 Destructive Device Trafficking......................................................... 687
§ A.17 Document Fraud................................................................................... 688
§ A.18 Drug Trafficking................................................................................... 688
§ A.19 Failure To Appear in Court To Face Charges.................................. 707
§ A.20 Failure To Appear in Court To Serve Sentence............................... 707
§ A.21 Firearms Offenses................................................................................ 707
§ A.22 Firearms Trafficking............................................................................ 709
§ A.23 Forgery................................................................................................... 709
§ A.24 Fraud...................................................................................................... 710
§ A.25 Illegal Re-Entry After Deportation.................................................... 715
§ A.26 Kidnapping............................................................................................ 715
§ A.27 Misprision of Felony........................................................................... 715
§ A.28 Money Laundering............................................................................... 716
§ A.29 Murder................................................................................................... 716
§ A.30 National Security Offenses................................................................. 716
§ A.31 Obstruction of Justice......................................................................... 717
§ A.32 Perjury................................................................................................... 718
§ A.33 Prostitution............................................................................................ 718
§ A.34 Rape 718
§ A.35 Receiving Stolen Property.................................................................. 718
§ A.36 Revealing Undercover Agent’s Identity........................................... 720
§ A.37 RICO Offenses...................................................................................... 720
§ A.38 Sexual Abuse of a Minor.................................................................... 720
§ A.39 Solicitation............................................................................................ 726
§ A.40 Statutory Rape...................................................................................... 728
§ A.41 Tax Evasion.......................................................................................... 732
§ A.42 Theft 732
§ A.43 Vehicles With ID Numbers Removed – Trafficking....................... 737
§ A.1
Category Defined. This volume uses the phrase “Aggravated Felony Category,” or simply “Category,” to describe the theory or phrase, in the aggravated felony statute, under which a given criminal conviction may or may not constitute an aggravated felony. Examples of categories are “Murder,” “Crime of Violence,” and “Theft Offense.”
The Category Case Index takes all published decisions of all courts defining what is, and is not, an aggravated felony, and organizes them according to the category they might or might not fall within. These categories are organized in alphabetical order, in the same manner as Chapter 5, supra. Therefore, looking under “C” for “Crime of Violence” will produce all decisions construing that phrase. Some categories are empty, simply because there are not yet any published decisions that relate to that category.
This index is organized first by category, then by jurisdiction, and finally in reverse chronological order. Remember that unless the United States Supreme Court, or the circuit in which the immigration case arises (i.e., where the noncitizen is placed in removal proceedings) has ruled on an issue, the BIA decisions regarding that issue are controlling.
This index includes circuit and district court decisions arising in both the immigration context, and cases determining whether a conviction is an aggravated felony for purposes of sentencing noncitizens convicted for illegal re-entry. Some additional cases, such as those defining “crime of violence” for sentencing purposes, are also included, even though the statute or Guidelines language involved may be somewhat different than the strict aggravated felony definition, for what they are worth.
This index also includes cases that consider whether certain non-substantive offenses that are not listed under INA § 101(a)(43)(U) (e.g., aiding and abetting and solicitation), can be considered aggravated felony offenses.
The Capsule Summaries include the following information: citation, exact date (month, day, and year) of the decision, and a parenthetical identifying the jurisdiction and statute of conviction (if reflected in the decision), the aggravated felony category under consideration, the final holding (is or is not an aggravated felony), and the purpose for which the court conducted the inquiry (e.g., removal purposes, sentence enhancement of illegal re-entry sentence, etc.). On occasion, relevant case history, and some of the court’s reasoning, is also included.
Warning. Caution is urged in generalizing from a decision cited here to the particular client’s case you may have under consideration. The result may differ for a number of reasons. The elements of the offense, as defined by the statute, may differ between the two cases, even though they involve the same type of crime. Each individual statute must be examined. Even if the statute is identical, it may have been amended between the two convictions, or judicial decisions of the jurisdiction of conviction may have altered the elements required for conviction of the offense in the interim. The law governing the rules to be applied in determining whether a given conviction triggers certain immigration consequences may have changed between the dates of the two convictions. The courts may have altered the rules for determining whether a conviction involves an aggravated felony. The record of conviction in one case may be different from the record in another. The judicial decision may be interpreting “aggravated felony” under a legal provision with a different aggravated felony from the context in which the particular client’s case arises. Therefore, the cases collected here should be used as the starting point rather than as a substitute for legal research and analysis.
§ A.2 Accessory After the Fact
§ A.2
BIA
ACCESSORY AFTER THE FACT – DRUG TRAFFICKING Matter of Batista-Hernandez, 21 I. & N. Dec. 955 (BIA July 15, 1997) (federal conviction pursuant to 18 U.S.C. § 3 as accessory after the fact to a drug-trafficking crime does not establish deportability as a drug-trafficking aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), because accessory after the fact is not listed as an inchoate offense (like attempt and conspiracy) that Congress chose to consider an aggravated felony within the definition given in INA § 101(a)(43)(U), 8 U.S.C. § 1101(a)(43)(U)).
ACCESSORY AFTER THE FACT – OBSTRUCTION OF JUSTICE Matter of Batista-Hernandez, 21 I. & N. Dec. 955 (BIA July 15, 1997) (federal conviction pursuant to 18 U.S.C. § 3 as accessory after the fact to a drug-trafficking crime, with a sentence imposed of one year or more, establishes deportability as an aggravated felony, because the offense of accessory after the fact falls within the definition of an obstruction of justice crime under INA § 101(a)(43)(S), 8 U.S.C. § 1101(a)(43)(S)).
§ A.3
Fifth Circuit
AIDING AND ABETTING – FACILITATION OF DRIVE-BY SHOOTING Nguyen v. Ashcroft, 366 F.3d 386 (5th Cir. Apr. 26, 2004) (Oklahoma conviction for facilitation of a drive-by shooting, under 21 Okl.St.Ann. § 652, subd. B., constituted a crime of violence aggravated felony for deportation purposes).
Sixth Circuit
AIDING AND ABETTING – ALIEN SMUGGLING Tapucu v. Gonzales, 399 F.3d 736 (6th Cir. Mar. 9, 2005) (federal conviction of driving an undocumented noncitizen to the United States border, and presenting him to the immigration authorities upon inspection, not knowing that the noncitizen is not entitled to enter the United States, at least on a temporary basis, does not constitute “alien smuggling”).
Eighth Circuit
AIDING AND ABETTING – POSSESSION FOR SALE United States v. Baca-Valenzuela, 118 F.3d 1223 (8th Cir. July 7, 1997) (federal conviction of aiding and abetting possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, constituted aggravated felony, under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for purposes of enhancing illegal re-entry sentence under U.S.S.G. § 2L1.2(b)(2), despite the fact the conviction was for aiding and abetting).
Ninth Circuit
AIDING AND ABETTING – TAKING OF VEHICLE United States v. Vidal, 426 F.3d 1011 (9th Cir. Oct. 24, 2005) (California conviction of unlawful taking of a vehicle, in violation of Vehicle Code § 10851, constitutes an aggravated felony under the U.S.S.G., for purposes of an eight-level increase in the base offense level for an illegal re-entry sentence).
AIDING AND ABETTING – THEFT OFFENSE Martinez-Perez v. Ashcroft, 417 F.3d 1022 (9th Cir. Aug. 2, 2005) (California conviction for grand theft by taking property from the person of another, in violation of Penal Code § 487(c), is not an aggravated felony under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), for deportation purposes, because the court could not determine from the record of conviction whether Martinez pleaded guilty to the statute as a principle or as an aider or abettor), vacating and overruling prior decision at 393 F.3d 1018 (9th Cir. Dec. 29, 2004).
AIDING AND ABETTING – ALIEN SMUGGLING United States v. Garcia, 400 F.3d 816 (9th Cir. Mar. 11, 2005) (federal conviction of aiding and abetting is not a separate offense from the substantive offenses of alien smuggling and transportation of aliens, but rather a different theory of liability for the same offense).
AIDING AND ABETTING – THEFT OF MEANS OF TRANSPORTATION Penuliar v. Ashcroft, 395 F.3d 1037 (9th Cir. Jan. 12, 2005) (California conviction of unlawful driving or taking a vehicle, in violation of Vehicle Code § 10851(a), was not a theft offense, within the meaning of INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), because both the statute and charge were overbroad with respect to the definition of a theft offense because they encompassed not only substantive theft offenses but aiding and abetting them as well).
AIDING AND ABETTING – THEFT OFFENSE Martinez-Perez v. Ashcroft, 393 F.3d 1018 (9th Cir. Dec. 29, 2004) (California conviction for grand theft by taking property from the person of another, in violation of Penal Code § 487(c), constitutes a theft offense, and therefore is an aggravated felony under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), for deportation purposes, because California courts have held an intent permanently to deprive the owner of property is an essential element of this offense, and because the record of conviction – i.e., the charge and the absence of any codefendants – negated the possibility the defendant was convicted on an aiding and abetting theory which renders the statute divisible), opinion withdrawn and superseded by 417 F.3d 1022 (9th Cir. Aug. 2, 2005).
§ A.4
Third Circuit
ALIEN HARBORING Patel v. Ashcroft, 294 F.3d 465 (3d Cir. June 20, 2002) (federal conviction of harboring an undocumented noncitizen, in violation of INA § 101(a)(1)(A), 8 U.S.C. § 1324(a)(1)(A), met the definition of an “aggravated felony” under INA § 101(a)(43)(N), 8 U.S.C. § 1101(a)(43)(N), for immigration purposes, despite the fact that defendant had no part in the harbored person’s illegal admission or entry).
Eighth Circuit
ALIEN HARBORING Gavilan-Cuate v. Yetter, 276 F.3d 418 (8th Cir. Jan. 9, 2002) (federal conviction of conspiracy to transport and harbor illegal aliens, in violation of INA § § 274(a)(1)(A)(ii) and (iii), 8 U.S.C. § § 1324(a)(1)(A)(ii) and (iii), constituted aggravated felony under INA § 101(a)(43)(N), 8 U.S.C. § 1101(a)(43)(N), despite parenthetical mentioning smuggling).
Ninth Circuit
ALIEN HARBORING Castro-Espinosa v. Ashcroft, 257 F.3d 1130 (9th Cir. July 17, 2001) (federal conviction of harboring illegal aliens in violation of INA § 274(a)(1)(A)(iii), 8 U.S.C. § 1324(a)(1)(A)(iii) is an “aggravated felony,” under INA § 101(a)(43)(N), 8 U.S.C. § 1101(a)(43)(N), for removal purposes).
Tenth Circuit
ALIEN HARBORING United States v. Martinez-Candejas, 347 F.3d 853 (10th Cir. Oct. 21, 2003) (federal conviction: aggravated felony category of alien smuggling includes transportation and harboring for purposes of 16-level enhancement of illegal re-entry sentence under U.S.S.G. § 2L1.2(b)(1)(A)(vii) (2002) based on prior aggravated felony conviction).
§ A.5
Fifth Circuit
ALIEN SMUGGLING – ILLEGAL ENTRY Rivera-Sanchez v. Reno, 198 F.3d 545 (5th Cir. Dec. 30, 1999) (federal illegal entry conviction of violating INA § 275(a), 8 U.S.C. § 1325(a) is outside the ambit of INA § 101(a)(43)(N), 8 U.S.C. § 1101(a)(43)(N), which is explicitly confined to convictions under INA § 274(a), 8 U.S.C. § 1324(a), and so is not an aggravated felony under that theory for immigration purposes).
Ninth Circuit
ALIEN SMUGGLING United States v. Garcia, 400 F.3d 816 (9th Cir. Mar. 11, 2005) (federal conviction of aiding and abetting is not a separate offense from the substantive offenses of alien smuggling and transportation of aliens, but rather a different theory of liability for the same offense).
BIA
ALIEN SMUGGLING Matter of Alvarado-Alvino, 22 I. & N. Dec. 718 (BIA May 24, 1999) (federal conviction of illegal entry, in violation of INA § 275(a), 8 U.S.C. § 1325, is not an aggravated felony under INA § 101(a)(43)(N), 8 U.S.C. § 1101(a)(43)(N), which specifically refers to those offenses relating to alien smuggling described in INA § § 274(a)(1)(A) and (2), 8 U.S.C. § § 1324(a)(1)(A) and (2)).
ALIEN SMUGGLING Matter of LS, 22 I. & N. Dec. 645 (BIA Apr. 16, 1999) (federal conviction of bringing illegal aliens into the United States, in violation of INA § 274(a), 8 U.S.C. § 1324(a), is an aggravated felony under INA § 101(a)(43)(N), 8 U.S.C. § 1101(a)(43)(N) for deportation purposes).
§ A.6
Fifth Circuit
ALIEN TRANSPORTATION United States v. Solis-Campozano, 312 F.3d 164 (5th Cir. Nov. 12, 2002) (federal conviction for transporting aliens within the United States, in violation of INA § 274(a)(1)(A)(ii), 8 U.S.C. 1324(a)(1)(A)(ii), was an “alien smuggling offense” within meaning of the Sentencing Guidelines for purpose of constituting an aggravated felony to enhance a sentence under U.S.S.G. § 2L1.2(b)(1)(A)(vii) for illegal re-entry).
ALIEN TRANSPORTATION Ruiz-Romero v. Reno, 205 F.3d 837 (5th Cir. Mar. 3, 2000) (federal conviction of transporting illegal noncitizens from one point to another within the United States without crossing a national border, in violation of INA § 274(a)(1)(A)(ii), 8 U.S.C. § 1324(a)(1)(A)(ii), triggered deportation as an aggravated felony, since the parenthetical phrase “(relating to alien smuggling)” found in INA § 101(a)(43)(N), 8 U.S.C. § 1101(a)(43)(N) does not restrict the statutory references that directly precede it).
ALIEN TRANSPORTATION United States v. Monjaras-Castaneda, 190 F.3d 326 (5th Cir. Sept. 16, 1999), cert. denied, 528 U.S. 1194, 120 S.Ct. 1254 (2000) (federal conviction of transporting illegal noncitizens from one point to another within the United States without crossing a national border, in violation of INA § 274(a)(1)(A)(ii), 8 U.S.C. § 1324(a)(1)(A)(ii), constituted an aggravated felony, for purposes of illegal re-entry sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(A), since the parenthetical phrase “(relating to alien smuggling)” found in INA § 101(a)(43)(N), 8 U.S.C. § 1101(a)(43)(N) does not restrict the statutory references that directly precede it).
Eighth Circuit
ALIEN TRANSPORTATION Gavilan-Cuate v. Yetter, 276 F.3d 418 (8th Cir. Jan. 9, 2002) (federal conviction of conspiracy to transport and harbor illegal aliens, in violation of INA § § 274(a)(1)(A)(ii) and (iii), 8 U.S.C. § § 1324(a)(1)(A)(ii) and (iii), constituted an aggravated felony under INA § 101(a)(43)(N), 8 U.S.C. § 1101(a)(43)(N), despite parenthetical mentioning smuggling).
Ninth Circuit
ALIEN TRANSPORTATION United States v. Galindo-Gallegos, 244 F.3d 728 (9th Cir. Mar. 27, 2001), amended, 255 F.3d 1154 (9th Cir. July 12, 2001) (federal conviction of transporting illegal aliens who were already in United States, in violation of INA § 274(a)(1)(A)(ii), 8 U.S.C. § 1324(a)(1)(A)(ii), constituted an aggravated felony under INA § 101(a)(43)(N), 8 U.S.C. § 1101(a)(43)(N), for purposes of enhancing sentence for illegal re-entry).
Tenth Circuit
ALIEN TRANSPORTATION United States v. Martinez-Candejas, 347 F.3d 853 (10th Cir. Oct. 21, 2003) (federal conviction of alien smuggling includes transportation and harboring for purposes of 16-level enhancement of illegal re-entry sentence under U.S.S.G. § 2L1.2(b)(1)(A)(vii) (2002) based on prior aggravated felony conviction).
ALIEN TRANSPORTATION United States v. Salas-Mendoza, 237 F.3d 1246 (10th Cir. Jan. 22, 2001) (federal conviction of transporting aliens, in violation of INA § 274(a)(1)(A), 8 U.S.C. § 1324(a)(1)(A), was an “aggravated felony” under INA § 101(a)(43)(N), 8 U.S.C. § 1101(a)(43)(N), for purposes of sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(A) of illegal re-entry sentence).
BIA
ALIEN TRANSPORTATION Matter of Ruiz-Romero, 22 I. & N. Dec. 486 (BIA Feb. 1, 1999) (federal conviction of transporting an illegal alien within the United States, in violation of INA § 274(a)(1)(A)(ii), 8 U.S.C. § 1324(a)(1)(A)(ii), was an aggravated felony as defined in INA § 101(a)(43)(N), 8 U.S.C. § 1101(a)(43)(N), and therefore triggers deportation under 8 U.S.C. § 1251(a)(2)(A)(iii)), distinguishing Matter of IM, 7 I. & N. Dec. 389 (BIA Jan. 15, 1957)).
§ A.7
First Circuit
ATTEMPT – THEFT Vieira-Garcia v. INS, 239 F.3d 409 (1st Cir. Feb. 21, 2001) (Rhode Island conviction of attempted theft and sentence to term of ten years imprisonment constituted an aggravated felony under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), triggering deportation).
Second Circuit
ATTEMPT – MURDER United States v. Morgan, 380 F.3d 698 (2d Cir. Aug. 19, 2004) (New York conviction for second-degree attempted murder, with sentence to indeterminate term of two-and-a-half to seven-and-a-half years imprisonment, properly treated as an “aggravated felony” for illegal re-entry sentencing purposes, even though it was not an aggravated felony under the relevant immigration statute at the time of the conviction).
ATTEMPT – ROBBERY United States v. Fernandez-Antonia, 278 F.3d 150 (2d Cir. Jan. 29, 2002) (New York conviction for attempted robbery in the third degree, in violation of N.Y. Penal Law § 110.00, met the definition of “aggravated felony” under INA § 101(a)(43)(U), 8 U.S.C. § 1101(a)(43)(U), for purposes of illegal re-entry sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(A), despite the argument that the New York statute defining “attempt” includes additional activity that is not included in “attempt” under federal law, since the court must consider state judicial decisions interpreting the state statute, and is not limited to the words of the statute itself).
ATTEMPT – POSSESSION OF COUNTERFEIT SECURITIES Sui v. INS, 250 F.3d 105 (2d Cir. May 11, 2001) (federal conviction of violating 18 U.S.C. § 513(a), possession of counterfeit securities with intent to deceive, does not necessarily constitute an attempt to pass counterfeit securities and cause a loss, and is therefore not an “attempt” to commit an aggravated felony under INA § 101(a)(43)(U), 8 U.S.C. § 1101(a)(43)(U), for deportation purposes).
Lower Courts of the Second Circuit
ATTEMPT – TAX EVASION Evangelista v. Ashcroft, 232 F.Supp.2d 30 (E.D.N.Y. Nov. 22, 2002) (federal conviction of attempt to evade or defeat tax in violation of 26 U.S.C. § 7201, charged as attempting to avoid an amount of tax liability in excess of $300,000, constituted an aggravated felony, under INA § 101(a)(43)(M)(ii), 8 U.S.C. § 1101(a)(43)(M)(ii), for deportation purposes).
ATTEMPT – SALE OF COCAINE United States v. Jimenez, 921 F.Supp. 1054 (S.D.N.Y. Nov. 13, 1995), aff’d, 131 F.3d 132 (2d Cir. Dec. 2, 1997) (Table) (New York convictions of attempted criminal sale of cocaine in the third degree constituted “illicit trafficking in a controlled substance,” and were therefore aggravated felonies under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), disqualifying the noncitizen from receiving voluntary departure).
ATTEMPT– SALE OF CONTROLLED SUBSTANCE Leader v. Blackman, 744 F.Supp. 500 (S.D.N.Y. Aug. 8, 1990) (New York conviction for attempted criminal sale of controlled substances in the third degree, in violation of N.Y. Penal Law § 220.39, constitutes an “aggravated felony,” under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), to trigger mandatory detention).
Seventh Circuit
ATTEMPT – AUTO BURGLARY United States v. Martinez-Garcia, 268 F.3d 460 (7th Cir. Sept. 28, 2001), cert. denied, 122 S.Ct. 1111 (2002) (Illinois conviction of burglary of vehicle with intent to commit theft constituted “attempt”, under INA § 101(a)(43)(U), 8 U.S.C. § 1101(a)(43)(U), to commit a “theft offense” under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), for purposes of enhancing an illegal re-entry sentence under U.S.S.G. § 2L1.2(b)(1)(A), since conduct admitted by defendant in plea was sufficient; since neither plea nor charging document encompassed an admission or charge that he completed act of taking property from vehicle, the offense was aggravated felony attempt).
Ninth Circuit
ATTEMPT – SALE OF A CONTROLLED SUBSTANCE United States v. Hernandez-Valdovinos, 352 F.3d 1243 (9th Cir. Dec. 17, 2003) (Arizona attempted sale conviction, in violation of A.R.S. § 13-3408, constituted drug trafficking offense for illegal re-entry sentence enhancement purposes, under U.S.S.G. § 2L1.2).
ATTEMPT – ASSAULT WITH DEADLY WEAPON United States v. Ceron-Sanchez, 222 F.3d 1169 (9th Cir. July 26, 2000) (Arizona conviction for attempted aggravated assault with a deadly weapon or deadly instrument, in violation of Ariz. Rev. Stat. § § 13-1001 and 13-1204(A)(2) and (B), constitutes an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for purposes of illegal re-entry sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(A)).
Tenth Circuit
ATTEMPT – POSSESSION OF STOLEN PROPERTY United States v. Vasquez-Flores, 265 F.3d 1122 (10th Cir. Sept. 13, 2001), cert. denied, 122 S.Ct. 1180 (2002) (Utah conviction for knowingly attempting to receive or transfer a stolen motor vehicle, in violation of Utah Code § 41-1a-1316 (1953), was an “aggravated felony” under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G) for enhancement purposes under U.S.S.G. § 2L1.2(b)(2) of an illegal re-entry sentence).
ATTEMPT – RECEIPT OF STOLEN PROPERTY Matter of Bahta, 22 I. & N. Dec. 1381 (BIA Oct. 4, 2000) (Nevada conviction for attempted possession of stolen property, in violation of Nevada Revised Statutes § § 193.330 and 205.275, is a conviction for an attempted “theft offense (including receipt of stolen property),” and therefore an aggravated felony, within the meaning of INA § § 101(a)(43)(G) and (U), 8 U.S.C. § § 1101(a)(43)(G) and (U)).
ATTEMPT – POSSESSION OF A CONTROLLED SUBSTANCE United States v. Lugo, 170 F.3d 996, 51 Fed. R. Evid. Serv. 918 (10th Cir. Mar. 11, 1999) (Utah conviction of attempted possession of a controlled substance, in violation of U.C.A.1953, § 58-37-8(1)(a)(ii), constituted an “aggravated felony,” under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for purposes of enhancing a sentence for illegal re-entry).
Eleventh Circuit
ATTEMPT – SALE OF A CONTROLLED SUBSTANCE United States v. Phillips, 413 F.3d 1288 (11th Cir. June 22, 2005) (state conviction of attempted sale of a controlled substance is a drug trafficking offense for sentencing purposes).
BIA
ATTEMPT – SUBMITTING FALSE CLAIM Matter of Onyido, 22 I. & N. Dec. 552 (BIA Mar. 4, 1999) (en banc) (Indiana conviction of submitting a false claim with intent to defraud, in violation of Indiana Code § 35-43-5-4(10), a Class D felony for which the respondent received the maximum penalty of three years confinement, arising from an unsuccessful scheme to obtain $15,000 from an insurance company, was a conviction of an “attempt” to commit a fraud in which the loss to the victim exceeded $10,000, which was an aggravated felony within the meaning of INA § 101(a)(43)(U), 8 U.S.C. § 1101(a)(43)(U), triggering deportation under 8 U.S.C. § 1251(a)(2)(A)(iii) (1994)).
ATTEMPT – MURDER Matter of Punu, 22 I. & N. Dec. 224 (BIA Aug. 18, 1998) (Texas conviction of attempted murder constitutes aggravated felony under INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A) for deportation purposes).
ATTEMPTED MANSLAUGHTER – CRIME OF VIOLENCE Matter of Yeung, 21 I. & N. Dec. 610 (BIA Nov. 27, 1996) (Florida conviction of attempted manslaughter with a knife constituted an aggravated felony as crime of violence with sentence imposed of one year or more under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for immigration purposes).
§ A.8
[No Cases Yet: Check the on-line version of this Appendix for updates at: http://www.CriminalAndImmigrationLaw.com]
§ A.9
[No Cases Yet: Check the on-line version of this Appendix for updates at: http://www.CriminalAndImmigrationLaw.com]
§ A.10
Fifth Circuit
BURGLARY – AUTO Lopez-Elias v. Reno, 209 F.3d 788 (5th Cir. May 1, 2000), cert. denied, 531 U.S. 1069 (2001) (Texas conviction of burglary of vehicle with intent to commit theft, in violation of Tex. Penal Code § 30.04(a), with suspended sentence of four years imprisonment, was not a burglary offense under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G) sufficient to render noncitizen deportable).
Lower Courts of the Fifth Circuit
BURGLARY Rios-Delgado v. United States, 117 F.Supp.2d 581 (W.D.Tex. Oct. 11, 2000) (California: trial counsel was ineffective in failing to object, at sentencing, that defendant’s prior conviction for commercial burglary was not an aggravated felony, for sentence enhancement purposes, under the soon-to-be-announced rule of United States v. Reyna-Espinosa, 117 F.3d 826 (5th Cir. July 11, 1997) (federal conviction for unlawful possession of a firearm by a noncitizen under 18 U.S.C. § 922(g)(5) does not constitute an “aggravated felony” for purposes of increasing the defendant’s offense level for illegal re-entry by 16 levels pursuant to U.S.S.G. § 2L1.2(b)(2), since it is not one of the five paragraphs of INA § 101(a)(43), 8 U.S.C. § 1101(a)(43) that are expressly incorporated into that guideline, although, in dictum, the court said the conviction does constitute an aggravated felony for immigration purposes)).
Seventh Circuit
BURGLARY – AUTO – ATTEMPT United States v. Martinez-Garcia, 268 F.3d 460 (7th Cir. Sept. 28, 2001), cert. denied, 122 S.Ct. 1111 (2002) (Illinois conviction of burglary of vehicle with intent to commit theft constituted “attempt,” under INA § 101(a)(43)(U), 8 U.S.C. § 1101(a)(43)(U), to commit a “theft offense” under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G) for purposes of enhancing under U.S.S.G. § 2L1.2(b)(1)(A) an illegal re-entry sentence, since conduct admitted by defendant in plea was sufficient; since neither plea nor charging document encompassed an admission or charge that he completed act of taking property from vehicle, the offense was aggravated felony attempt).
BURGLARY – AUTO Solorzano-Patlan v. INS, 207 F.3d 869 (7th Cir. Mar. 10, 2000) (Illinois conviction of “burglary” of automobile, in violation of 720 ILCS § 5/19-1(a), was not an aggravated felony “burglary offense” under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G) that would trigger deportation).
Ninth Circuit
BURGLARY – UNLAWFUL ENTRY United States v. Rodriguez-Rodriguez, 393 F.3d 849 (9th Cir. Jan. 5, 2005) (California: because defendant’s guilty plea to California residential burglary included the word “unlawfully,” the conviction satisfied the unlawful entry requirement absent in California’s statutory definition of burglary under Penal Code § 459, and constituted aggravated felony for purposes of triggering enhancement of illegal re-entry sentence for “crime of violence” under Sentencing Guidelines).
BURGLARY United States v. Velasco-Medina, 305 F.3d 839 (9th Cir. Aug. 12, 2002) (California conviction of second-degree burglary, in violation of California Penal Code § 459, was an aggravated felony under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), for purposes of imposition of a sixteen-level sentencing enhancement under U.S.S.G. § 2L1.2(b)(1)(A) for illegal re-entry conviction, even though the state statute was far broader than the Taylor federal definition of burglary, since the charging paper and judgment established the elements of the federal definition).
BURGLARY – AUTO Ye v. INS, 214 F.3d 1128 (9th Cir. June 9, 2000) (California conviction of vehicle burglary in violation of California Penal Code § 459 did not constitute “burglary” within the federal aggravated felony definition, INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), nor “crime of violence” within INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for immigration purposes).
BURGLARY – UNLAWFUL ENTRY United States v. Parker, 5 F.3d 1322, 1325 (9th Cir. Sept. 28, 1993) (California Information charging burglary did not satisfy Taylor because of failure to allege “unlawful or unprivileged” entry).
BIA
BURGLARY – AUTO Matter of Perez, 22 I. & N. Dec. 1325 (BIA June 6, 2000) (en banc) (Texas conviction of burglary of a vehicle, in violation of Texas Penal Code § 30.04(a), is not an aggravated felony “burglary offense” within the definition of INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G)).
§ A.11
Second Circuit
Lower Courts of the Second Circuit
CHILD PORNOGRAPHY Gonzalez v. Ashcroft, 369 F.Supp.2d 442 (S.D.N.Y. Apr. 29, 2005) (New York conviction for “use of a child in a sexual performance” under New York Penal Law § 263.05, did not constitute an offense relating to child pornography, and was therefore not an aggravated felony under INA § 101(a)(43)(I), 8 U.S.C. § 1101(a)(43)(I), because the statute of conviction permits convictions for a lesser degree of scienter when parents or guardians are charged with violating the statute than the federal statutes listed in the aggravated felony provisions require, i.e., to act intentionally or knowingly: “Unless the scienter element is read so as not to attach to the parent’s knowledge of the nature of the performance, the clause regarding parents is rendered superfluous.”).
§ A.12
Second Circuit
CONSPIRACY – COUNTERFEITING Kamagate v. Ashcroft, 385 F.3d 144 (2d Cir. Sept. 21, 2004) (federal conviction of conspiracy to utter and possess counterfeit securities, in violation of 18 U.S.C. § § 371, 513(a), constitutes an aggravated felony, as “an offense relating to . . . counterfeiting,” under INA § § 101(a)(43)(R), (U), 8 U.S.C. § § 1101(a)(43)(R), (U), triggering deportability under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), rejecting an argument that an offense relates to counterfeiting only if it involves the creation of counterfeit instruments or a scheme to do so, and that the present conviction cannot be a crime “related to counterfeiting” because a defendant can be guilty of such a conspiracy without proof that the conspirators ever dealt in counterfeit securities, much less that they made or intended to make such instruments).
CONSPIRACY – EXPORT FIREARMS WITHOUT LICENSE Kuhali v. Reno, 266 F.3d 93 (2d Cir. Sept. 27, 2001) (federal conviction for conspiracy to export firearms without license, in violation of 18 U.S.C. § 371 and 22 U.S.C. § 2778, constitutes an aggravated felony under INA § § 101(a)(43)(C), (U), 8 U.S.C. § § 1101(a)(43)(C), (U), for immigration purposes, since it necessarily exhibits a business or merchant nature, regardless of any nexus with commerce as an element of the offense or of a similar “match” between elements).
Lower Courts of the Second Circuit
CONSPIRACY – TAX EVASION Evangelista v. Ashcroft, 204 F.Supp.2d 405, 406 (E.D.N.Y. May 7, 2002) (federal convictions of conspiracy to impede the IRS in collection of income and payroll taxes in violation of 18 U.S.C. § 371, failure to collect or pay income/FICA taxes in violation of 26 U.S.C. § 7202, and attempt to evade or defeat tax in violation of 26 U.S.C. § 7201, constituted tax evasion aggravated felony convictions under INA § § 101(a)(43)(M)(ii), (U), 8 U.S.C. § § 1101(a)(43)(M)(ii), (U) for removal purposes).
Third Circuit
Lower Courts of the Third Circuit
CONSPIRACY – BANK FRAUD United States v. Ogembe, 41 F.Supp.2d 567 (E.D.Pa. Mar. 3, 1999) (federal conviction of conspiracy to commit bank fraud in violation of 18 U.S.C. § 371 constitutes an aggravated felony as an offense that “involves fraud or deceit in which the loss to the victim or victims exceeds $10,000” under INA § § 101(a)(43)(M)(i), (U), 8 U.S.C. § § 1101(a)(43)(M)(i), (U), regardless of sentence).
Fifth Circuit
CONSPIRACY – BAD CHECKS United States v. Dabeit, 231 F.3d 979 (5th Cir. Oct. 30, 2000), cert. denied, 531 U.S. 1202 (2001) (federal conviction of conspiracy to perpetrate a checking and savings account kite scheme, in violation of 18 U.S.C. § 2113(b), was an aggravated felony, under INA § § 101(a)(43)(G), (U), 8 U.S.C. § § 1101(a)(43)(G), (U), so as to permit enhancement of the illegal re-entry sentence in defendant’s base offense level pursuant to U.S.S.G. § 2L1.2(b)(1)(A)).
CONSPIRACY – RICO OFFENSES Alfarache v. Cravener, 203 F.3d 381, 384 (5th Cir. Feb. 22, 2000), cert. denied, 531 U.S. 813, 121 S.Ct. 46 (2000) (federal conviction of conspiracy to participate in a racketeering enterprise, in violation of 18 U.S.C. § 1962(d), was an “aggravated felony” under INA § 101(a)(43)(J), 8 U.S.C. § 1101(a)(43)(J), for immigration purposes).
CONSPIRACY – POSSESS HEROIN WITH INTENT TO DISTRIBUTE Martins v. INS, 972 F.2d 657 (5th Cir. Sept. 23, 1992) (federal conviction for conspiracy to possess heroin with intent to distribute was “drug trafficking crime,” and was thus an aggravated felony under INA § 101(a)(43)(B), (U), 8 U.S.C. § § 1101(a)(43)(B), (U), which rendered noncitizen statutorily ineligible to apply for asylum).
Seventh Circuit
CONSPIRACY – POSSESS STOLEN MOTOR VEHICLES Iysheh v. Gonzales, 437 F.3d 613 (7th Cir. Feb. 1, 2006) (federal conviction of “conspiracy to transport, receive, possess, etc. stolen motor vehicles” in violation of 18 U.S.C. § § 371 and 2313(a), constituted a fraud aggravated felony, under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), even though the statute did not have an element of fraud or deceit, because the record of conviction establishes fraud, since noncitizen pleaded guilty to “count one of the superseding indictment,” which describes a conspiracy (1) “to defraud a financial institution ... in violation of [18 U.S.C. § ] 1344”; (2) “to transport in interstate commerce [stolen] motor vehicles ... in violation of [18 U.S.C. § ] 2312”; and (3) “to receive, possess, conceal, store, and sell [stolen] motor vehicles ... in violation of [18 U.S.C. § ] 2313(a)” and the plea agreement established a total loss from the conspiracy in excess of $200,000).
CONSPIRACY – POSSESS WITH INTENT TO DISTRIBUTE Jideonwo v. INS, 224 F.3d 692 (7th Cir. Aug. 23, 2000) (federal conviction of conspiracy to possess heroin with intent to distribute is an “aggravated felony” under INA § § 101(a)(43)(B), (U), 8 U.S.C. § § 1101(a)(43)(B), (U), for purposes of disqualifying a noncitizen from eligibility for a discretionary waiver of deportation).
CONSPIRACY – DISTRIBUTE CONTROLLED SUBSTANCE Turkhan v. INS, 123 F.3d 487, 488 (7th Cir. Aug. 12, 1997) (federal conviction of conspiracy to distribute cocaine in violation of 21 U.S.C. § 846 constituted aggravated felony conviction under INA § 101(a)(43)(B), 8 U.S.C. § § 1101(a)(43)(B), (U), for deportation purposes), overruled on other grounds by LaGuerre v. Reno, 164 F.3d 1035 (7th Cir. Dec. 22, 1998).
Eighth Circuit
CONSPIRACY – HARBOR ALIENS Gavilan-Cuate v. Yetter, 276 F.3d 418 (8th Cir. Jan. 9, 2002) (federal conviction of conspiracy to transport and harbor illegal aliens, in violation of INA § § 274(a)(1)(A)(ii) and (iii), 8 U.S.C. § § 1324(a)(1)(A)(ii) and (iii), constituted an aggravated felony under INA § 101(a)(43)(N), 8 U.S.C. § 1101(a)(43)(N), despite parenthetical mentioning smuggling).
Ninth Circuit
CONSPIRACY – DEFRAUD THE UNITED STATES Li v. Ashcroft, 389 F.3d 892 (9th Cir. Nov. 19, 2004) (federal conviction of conspiracy to defraud the United States, in violation of 18 U.S.C. § 371, is divisible with respect to the fraud offense aggravated felony defined in INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), since it does not require proof of any specific amount of monetary loss and so does not automatically satisfy the element of this aggravated felony definition requiring a loss to the victim(s) in excess of $10,000, so the record of conviction must be examined to determine whether the conviction falls within the definition).
Eleventh Circuit
CONSPIRACY – BANK FRAUD Bejacmar v. Ashcroft, 291 F.3d 735 (11th Cir. May 14, 2002) (federal conviction of conspiracy to commit bank fraud, a violation of 18 U.S.C. § 371, constituted an aggravated felony under INA § 101(a)(43)(M)(I), (U), 8 U.S.C. § § 1101(a)(43)(M)(i), (U), since the loss to the victim exceeded $10,000).
BIA
CONSPIRACY – DISTRIBUTE CONTROLLED SUBSTANCE Matter of Davis, 20 I. & N. Dec. 536 (BIA May 28, 1992) (Maryland conviction of conspiracy to distribute a controlled substance, in violation of article 27, section 286(a)(1) of the Maryland Annotated Code, constitutes a “drug trafficking crime” as defined in 18 U.S.C. § 924(c)(2) (1988), and is therefore an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), triggering deportation, because the underlying state trafficking offense would have been a felony under federal law, even though the state conspiracy conviction was a misdemeanor), holding modified by Matter of Yanez-Garcia, 23 I. & N. Dec. 390 (BIA May 13, 2002).
§ A.13
Second Circuit
COUNTERFEITING – SECURITIES Kamagate v. Ashcroft, 385 F.3d 144 (2d Cir. Sept. 21, 2004) (federal conviction of conspiracy to utter and possess counterfeit securities in violation of 18 U.S.C. § § 371, 513(a), constitutes an aggravated felony, as “an offense relating to . . . counterfeiting,” under INA § 101(a)(43)(R), (U), 8 U.S.C. § § 1101(a)(43)(R), (U), triggering deportability under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), rejecting an argument that an offense relates to counterfeiting only if it involves the creation of counterfeit instruments or a scheme to do so, and that the present conviction cannot be a crime “related to counterfeiting” because a defendant can be guilty of such a conspiracy without proof that the conspirators ever dealt in counterfeit securities, much less that they made or intended to make such instruments).
ATTEMPT – POSSESSION OF COUNTERFEIT SECURITIES Sui v. INS, 250 F.3d 105 (2d Cir. May 11, 2001) (federal conviction of violating 18 U.S.C. § 513(a), possession of counterfeit securities with intent to deceive, does not necessarily constitute an attempt to pass counterfeit securities and cause a loss, and is therefore not an “attempt” to commit an aggravated felony under INA § 101(a)(43)(U), 8 U.S.C. § 1101(a)(43)(U), for deportation purposes).
Ninth Circuit
COUNTERFEITING – OBLIGATIONS Albillo-Figueroa v. INS, 221 F.3d 1070 (9th Cir. Aug. 4, 2000) (federal conviction for possession of counterfeit obligations, in violation of 18 U.S.C. § 472, is an “aggravated felony” under INA § 101(a)(43)(R), 8 U.S.C. § 1101(a)(43)(R) for immigration purposes).
§ A.14
U.S. Supreme Court
CRIME OF VIOLENCE – DRIVING UNDER THE INFLUENCE CAUSING INJURY Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377 (Nov. 9, 2004) (Florida conviction of driving under the influence and accidentally causing serious bodily injury, in violation of Florida Stats. Ann. § 316.193(3)(c), did not constitute an aggravated felony as a crime of violence, under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for purposes of triggering deportation, since the offense did not have a mens rea requirement in excess of strict liability or negligence, sufficient to meet the statutory requirement of a substantial risk that the defendant would intentionally use force in the commission of the offense).
First Circuit
CRIME OF VIOLENCE – THIRD-DEGREE SEXUAL ASSAULT Aguiar v. Gonzales, 438 F.3d 86 (1st Cir. Feb. 16, 2006) (Rhode Island conviction of third-degree sexual assault, in violation of R.I. Gen. Laws § 11-37-6 [“over the age of eighteen (18) and engaged in sexual penetration with another person over the age of fourteen (14) and under the age of consent, sixteen (16) years of age”], with two-year suspended term of imprisonment, constituted a “crime of violence” under 18 U.S.C. 16(b), since it involved a substantial risk that physical force would be used in its commission, and was therefore an aggravated felony crime of violence under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for deportation purposes).
CRIME OF VIOLENCE – ASSAULT United States v. Cordoza-Estrada, 385 F.3d 56 (1st Cir. Sept. 29, 2004) (New Hampshire conviction of simple assault for punching a man in the face and breaking his nose, with a sentence to twelve months of imprisonment with ten months suspended, constituted an aggravated felony crime of violence conviction, under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), triggering an eight-level enhancement of sentence under U.S.S.G. § 2L1.2(b)(1)(C) for illegal re-entry, even though the conviction was a misdemeanor).
CRIME OF VIOLENCE – ASSAULT United States v. Nason, 269 F.3d 10, 20 (1st Cir. Oct. 19, 2001) (Maine conviction for assault, under 17-A M.R.S.A. § 207 qualifies as a “crime of violence” for purposes of 18 U.S.C. § 922(g) (felon with a firearm), since the minimum conduct of “offensive physical contact,” “invariably emanate[s] from the application of some quantum of physical force” which is sufficient to constitute the use of physical force for purposes of defining the offense as a crime of violence).
CRIME OF VIOLENCE – KIDNAPPING Choeum v. INS, 129 F.3d 29 (1st Cir. Nov. 5, 1997) (New York conviction of kidnapping was crime of violence under 18 U.S.C. § 16(a), since it had force as an element, and therefore constituted an “aggravated felony “ under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) for immigration purposes).
Lower Courts of the First Circuit
CRIME OF VIOLENCE – INDECENT ASSAULT ON MINOR Sango-Dema v. District Director, INS, 122 F.Supp.2d 213 (D.Mass. Nov. 20, 2000) (Massachusetts conviction for indecent assault and battery on a person over fourteen years old, in violation of Mass. Gen. L. ch. 265, § 13H, with sentence of three to five years suspended sentence, constitutes a “crime of violence,” an aggravated felony under 18 U.S.C. § 16(b) and INA § 101(43)(F), 8 U.S.C. § 1101(43)(F), for removal purposes, since “any violation of Mass. Gen. L. ch. 256, § 13H, by its nature, presents a substantial risk that force may be used in order to overcome the victim’s lack of consent and accomplish the indecent touching. Sutherland v. Reno, 228 F.3d 171, 176 (2d Cir. 2000).”).
CRIME OF VIOLENCE – CHILD ABUSE WITH INJURY Mathews v. Reno, 52 F.Supp.2d 195 (D.Mass. May 18, 1999) (Rhode Island conviction of second-degree child abuse, the infliction upon a child of any “serious physical injury,” in violation of R.I. Gen. Laws § 11-9-5.3(2), constitutes a crime of violence under 18 U.S.C. § 16(a), and is considered an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for immigration purposes).
CRIME OF VIOLENCE – ASSAULT ON OFFICER Rowe v. INS, 45 F.Supp.2d 144 (D.Mass. Apr. 30, 1999) (conviction for assault and battery of a police officer is an aggravated felony as defined by INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for purposes of deportation).
Second Circuit
CRIME OF VIOLENCE – STATUTORY RAPE Chery v. Ashcroft, 347 F.3d 404 (2d Cir. Oct. 17 2003) (Connecticut conviction under Conn.G.S § 53a-71 for consensual sexual intercourse with a person under age 18 (statutory rape) is a crime of violence and aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for immigration purposes, even though no harm was actually done to 14-year-old victim, since offense involves a substantial risk that physical force might be used against the victim in the course of committing the offense).
CRIME OF VIOLENCE – FIRST DEGREE UNLAWFUL IMPRISONMENT Dickson v. Ashcroft, 346 F.3d 44 (2d Cir. Sept. 9, 2003) (New York conviction of unlawful imprisonment in the first degree, in violation of N.Y. Penal Law § 135.10, with indeterminate sentence of one to three years, held not to be an aggravated felony crime of violence within the meaning of INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for deportation purposes, since the statute of conviction was divisible and the record of conviction did not establish that the particular conviction fell within the COV portion of the statute, since it was improper to consider the narrative statement of facts contained in the presentence report as part of the record of conviction).
CRIME OF VIOLENCE – SECOND DEGREE MANSLAUGHTER Jobson v. Ashcroft, 326 F.3d 367 (2d Cir. Apr. 22, 2003) (New York conviction of manslaughter in the second degree, under N.Y.P.L. § 125.15(1), is not a crime of violence under 18 U.S.C. § 16(b) and thus is not an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for deportation purposes, since the minimum criminal conduct required to violate the statute does not necessarily present a substantial risk that the defendant will intentionally use physical force against the person or property of another, because the scope of the law is broad; passive conduct or omissions alone are sufficient for conviction).
CRIME OF VIOLENCE – THIRD DEGREE ASSAULT Chrzanoski v. Ashcroft, 327 F.3d 188 (2d Cir. Apr. 22, 2003) (Connecticut conviction of third-degree assault in violation of section 53a-61(a)(1) of the Connecticut General Statutes, which involves the intentional infliction of physical injury upon another, is not a crime of violence under 18 U.S.C. § 16(a) and is therefore not an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) because use of force is not an element of the offense).
CRIME OF VIOLENCE – DRIVING UNDER THE INFLUENCE Dalton v. Ashcroft, 257 F.3d 200 (2d Cir. July 20, 2001) (New York conviction of driving while intoxicated, in violation of New York Vehicle and Traffic Law § 1192.3, did not necessarily constitute a “crime of violence” under 18 U.S.C. § 16(b), since a risk of the use of force is not an integral part of the offense, and was thus not an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) for deportation purposes).
CRIME OF VIOLENCE – ASSAULT United States v. Pacheco, 225 F.3d 148 (2d Cir. Aug. 29, 2000), cert. denied, 533 U.S. 904, 121 S.Ct. 2246 (2001) (Rhode Island misdemeanor simple assault conviction, for which suspended sentence of one year was imposed, constituted an aggravated felony, under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), warranting 16-level enhancement of illegal re-entry sentence for violation of INA § 276(a)(1), 8 U.S.C. § 1326(a)(1) under U.S.S.G. § 2L1.2(b)(1)(A)).
Lower Courts of the Second Circuit
CRIME OF VIOLENCE – ASSAULT Milbin v. Ashcroft, 293 F.Supp.2d 158 (D.Conn. Dec. 2, 2003) (Connecticut conviction under any subdivision of Conn. Gen. Stat. § 53a-61, which prohibits various ways of causing injury to a person, did not constitute a crime of violence within the meaning of INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), 18 U.S.C. § 16(a), because it does not have use of force as an element, and could be violated by guile, deception, or even deliberate omission), following Chrzanoski v. Ashcroft, 327 F.3d 188 (2d Cir. Apr. 22, 2003).
CRIME OF VIOLENCE – RISK OF INJURY Santapaola v. Ashcroft, 249 F.Supp.2d 181 (D.Conn. Mar. 13, 2003) (Connecticut conviction for risk of injury, in violation of Conn. Gen.Stat. § 53-21(1), constituted an aggravated felony conviction for a “crime of violence,” under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for deportation purposes).
CRIME OF VIOLENCE – ASSAULT WITH INJURY Persaud v. McElroy, 225 F. Supp. 2d 420 (S.D.N.Y. Oct. 7, 2002) (New York conviction of assault with injury under N.Y. Penal Law § 120.05(6) was not a crime of violence under 18 U.S.C. § 16(a) because it did not require, as an element of the offense, that the defendant use physical force to inflict the injury, and the conviction was therefore not an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F)).
CRIME OF VIOLENCE – MANSLAUGHTER Greenidge v. INS, 204 F.Supp.2d 594 (S.D.N.Y. Nov. 29, 2001) (Arizona manslaughter conviction, in violation of A.R.S. § 151-54, is a crime of violence, and therefore an aggravated felony pursuant to INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F)), for removal purposes).
Third Circuit
CRIME OF VIOLENCE – USE OF INTERSTATE COMMERCE FACILITIES FOR MURDER FOR HIRE Ng v. Attorney General, 436 F.3d 392 (3d Cir. Feb. 7, 2006) (federal conviction of use of interstate commerce facilities in the commission of a murder-for-hire, in violation of 18 U.S.C. § 1958, constitutes a crime of violence aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) for purposes of removal, because it “poses a substantial risk that physical force will be used against another,” even though the putative hitman had no intent to murder: “That some violations of § 1958 will never culminate in an actual agreement or the commission of a murder does not alter our view that the natural consequence of using interstate commerce facilities in the commission of a murder-for-hire is that physical force will be used upon another.”, citing United States v. Luskin, 926 F.3d 372, 379 (4th Cir. 1991) (use of interstate commerce facilities in the commission of a murder-for-hire under 18 U.S.C. § 1952A, the predecessor statute to § 1958, constitutes a crime of violence); United States v. Cox, 74 F.3d 189, 190 (9th Cir. 1996) (conviction for soliciting the murder of wife constitutes a “crime of violence” under U.S.S.G. § 4B1.2, which defines a crime of violence as “conduct that presents a serious potential risk of physical injury to another”).
CRIME OF VIOLENCE – SIMPLE ASSAULT Singh v. Gonzales, 432 F.3d 533 (3d Cir. Jan. 3, 2006) (Pennsylvania misdemeanor conviction of simple assault, under 18 Pa. Cons.Stat. Ann. § 2701(a)(3) (“A person is guilty of assault if he . . . attempts by physical menace to put another in fear of imminent serious bodily injury.”), constituted a crime of violence, under 18 U.S.C. § 16(a), and therefore an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for purposes of triggering deportation).
CRIME OF VIOLENCE – RECKLESS ENDANGERMENT Singh v. Gonzales, 432 F.3d 533, 540-541 (3d Cir. Jan. 3, 2006) (Pennsylvania misdemeanor conviction of recklessly endangering another person, in violation of 18 Pa. Cons.Stat. Ann. § 2705, with a sentence of one year or more, did not constitute a crime of violence under 18 U.S.C. § 16(a), and was not a felony conviction, and therefore did not constitute a crime of violence under 18 U.S.C. § 16(a), and therefore was not an aggravated felony, under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), since it requires a mens rea of no more than recklessness).
CRIME OF VIOLENCE – RECKLESS SIMPLE ASSAULT Popal v. Gonzalez, 416 F.3d 249 (3d Cir. July 29, 2005) (Pennsylvania conviction of simple assault (reckless), in violation of Pennsylvania Penal Code § 18 Pa.C.S.A. § 2701, is not an aggravated felony crime of violence for immigration purposes, since a mens rea of recklessness is insufficient to qualify as a crime of violence under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F)).
CRIME OF VIOLENCE – ARSON Tran v. Gonzales, 414 F.3d 464 (3d Cir. July 12, 2005) (Pennsylvania conviction of “reckless burning or exploding,” in violation of 18 Pa.C.S.A. § 3301(d)(2), did not constitute a crime of violence under 18 U.S.C. § 16(b), and was therefore not an aggravated felony crime of violence under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) for purposes of removal, since the crime required only a reckless mens rea, and involved no risk that the defendant would intentionally use force in the commission of the crime).
CRIME OF VIOLENCE – SEXUAL ASSAULT United States v. Remoi, 404 F.3d 789 (3d Cir. Apr. 13, 2005) (New Jersey conviction of sexual contact with a helpless victim, in violation of New Jersey Statute § 2C:14-2c(2), requiring that victim of “penetration” have been “physically helpless” or “mentally defective or incapacitated,” is a crime of violence for illegal re-entry sentencing purposes; although statute does not require physical force, it may be satisfied by proof that the contact occurred through exploitation of the victim’s helplessness, thus qualifying as a “forcible sex offense (including sexual abuse of a minor)” under U.S.S.G. § 2L1.2, app. n.1(B)(ii)).
CRIME OF VIOLENCE – TERRORISTIC THREATS Bovkun v. Ashcroft, 283 F.3d 166 (3d Cir. Mar. 8, 2002) (Pennsylvania misdemeanor conviction of making terroristic threats, in violation of 18 Pa. Cons.Stat. § 2706 (1998), qualified as a “crime of violence” under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for immigration purposes, since the maximum of the indeterminate 11- to 23-month sentence imposed was one year or more).
CRIME OF VIOLENCE – VEHICULAR HOMICIDE Francis v. Reno, 269 F.3d 162 (3d Cir. Oct. 16, 2001) (Pennsylvania conviction of vehicular homicide, in violation of 75 Pa.C.S.A. § 3732, did not constitute an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), since misdemeanor vehicular homicide was not a “felony” under the INA, and even if conviction could be converted into felony, it did not involve a substantial risk of physical force required to make it an “aggravated felony”).
Lower Courts of the Third Circuit
CRIME OF VIOLENCE – SEXUAL ASSAULT ON MINOR United States v. Reve, 241 F.Supp.2d 470 (D.N.J. Jan. 31, 2003) (New Jersey conviction of sexual assault, defined as committing an act of sexual penetration with a victim who is at least thirteen but less than sixteen years old and the actor is at least four years older than the victim, in violation of former N.J.S.A. § 2C:14-2(c)(5) (1995), recodified, N.J.S.A. § 2C:14-2(c)(4) (Supp. 2002), did not constitute an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for purposes of revocation of naturalization, because the offense did not have as an element using, attempting to use, or threatening to use force against the victim, as required by 18 U.S.C. § 16(a), and government did not argue substantial risk under 18 U.S.C. § 16(b)).
CRIME OF VIOLENCE – ASSAULT WITH DANGEROUS WEAPON United States v. Gebele, 117 F.Supp.2d 540, 544 (W.D.Va. Oct. 13, 2000) (Massachusetts conviction of Assault and Battery by Means of a Dangerous Weapon, with a sentence of five years and one day, was a “crime of violence” under 18 U.S.C. § 16(b) and therefore constituted an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for purposes of enhancing an illegal re-entry sentence).
Fourth Circuit
CRIME OF VIOLENCE – INVOLUNTARY MANSLAUGHTER Bejarano-Urrutia v. Gonzales, 413 F.3d 444 (4th Cir. July 5, 2005) (Virginia conviction for simple involuntary manslaughter, in violation of Va. Code Ann. § 18.2-36 (2004), which requires the killing of a person as a proximate result of the defendant’s reckless disregard for human life, did not constitute a crime of violence aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), 18 U.S.C. § 16, because the conclusion of the court in Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377 (Nov. 9, 2004) that “[i]n no ‘ordinary or natural’ sense can it be said that a person risks having to ‘use’ physical force against another person in the course of operating a vehicle while intoxicated and causing injury,” id. at 383, strongly indicates that the result in Leocal would have been the same even had a violation of the statute there at issue required recklessness rather than mere negligence).
CRIME OF VIOLENCE – SEXUAL BATTERY Wireko v. Reno, 211 F.3d 833 (4th Cir. May 4, 2000) (Virginia conviction of misdemeanor sexual battery, in violation of Va.Code 1950, § 18.2-67.4, was a crime of violence, and therefore an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for immigration purposes precluding judicial review of a removal order), distinguished by Guerrero-Perez v. INS, 242 F.3d 727 (7th Cir. Mar. 5, 2001).
Fifth Circuit
CRIME OF VIOLENCE – FALSE IMPRISONMENT United States v. Stapleton, 440 F.3d 700 (5th Cir. Feb. 16, 2006) (Louisiana conviction for false imprisonment while armed with a dangerous weapon, in violation of La. Rev. Stat. Ann § 14:46.1(A) is a violent felony for purposes of the Armed Career Criminal Act, 18 U.S.C. § 924(e), because it necessarily presents a serious potential risk of physical injury to another).
CRIME OF VIOLENCE – SECOND-DEGREE ASSAULT United States v. Torres-Diaz, 438 F.3d 529 (5th Cir. Jan. 30, 2006) (Connecticut conviction of second-degree assault under Conn. Gen.Stat. § 53a-60(a)(2) (“with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument other than by means of the discharge of a firearm”), with a five-year suspended sentence, constituted a conviction of “aggravated assault” as used in U.S.S.G. § 2L1.2 n.1(B)(iii), and is thus a “crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii), for purposes of imposing a 16-level enhancement of sentence for illegal re-entry, because the offense of conviction tracks the Model Penal Code definition of “aggravated assault” almost exactly).
CRIME OF VIOLENCE – AGGRAVATED BATTERY United States v. Gonzalez-Chavez, 432 F.3d 334 (5th Cir. Nov. 30, 2005) (Florida conviction of aggravated battery under § 784.045 of the Florida Statutes is divisible, as the statute may be violated by any assault on a pregnant woman, including spitting, which does not involve the use, attempted use, or threatened use of force, and therefore may not be an aggravated felony crime of violence for sentencing purposes).
CRIME OF VIOLENCE – ASSAULT Gonzalez-Garcia v. Gonzales, 431 F.3d 234 (5th Cir. Nov. 16, 2005) (Texas conviction of assault, in violation of Tex. Penal Code § 22.01(a)(3) (“intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative”), did not constitute a crime of violence aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), since “offensive or provocative contact” does not necessarily involve the use of physical force).
CRIME OF VIOLENCE – SHOOTING INTO OCCUPIED DWELLING United States v. Alfaro, 408 F.3d 204 (5th Cir. Apr. 28, 2005) (Virginia conviction of shooting into an occupied dwelling, in violation of Va.Code § 18.202-79 (1993), did not constitute a crime of violence for purposes of enhancing sentence for illegal re-entry by sixteen levels under U.S.S.G. § 2L1.2(b)(1)(A)(ii), because (a) this offense is not enumerated in the Guideline, and (b) it does not have as an element the use or threat of force against another, since a defendant could violate this statute merely by shooting a gun at a building that happens to be occupied or by discharging a firearm within an unoccupied school building, without actually shooting, attempting to shoot, or threatening to shoot another person).
CRIME OF VIOLENCE – RETALIATION United States v. Martinez-Mata, 393 F.3d 625 (5th Cir. Dec. 10, 2004) (Texas conviction of retaliation under Texas Penal Code § 36.06 is not a crime of violence for illegal re-entry sentencing purposes since it does not have, as an element, the use, attempted use, or threatened use of physical force).
CRIME OF VIOLENCE – JOYRIDING United States v. Rodriquez-Rodriguez, 388 F.3d 466 (5th Cir. Oct. 15, 2004) (Texas conviction under Penal Code § 31.07(a), unauthorized use of a motor vehicle, is not a crime of violence for illegal re-entry sentencing purposes since the statute does not require the use of force as an element).
CRIME OF VIOLENCE – BURGLARY United States v. Rodriquez-Rodriguez, 388 F.3d 466 (5th Cir. Oct. 15, 2004) (Texas conviction under Penal Code § 30.02, burglary of a building, is not a crime of violence for illegal re-entry sentencing purposes since the statute does not require the use of force as an element).
CRIME OF VIOLENCE – CRIMINALLY NEGLIGENT HOMICIDE United States v. Dominguez-Ochoa, 386 F.3d 639 (5th Cir. Sept. 22, 2004) (Texas conviction of criminally negligent homicide, under Tex. Penal Code § 19.05, did not constitute crime of violence aggravated felony under U.S.S.G. § 2L1.2(b)(1)(A)(ii), for purposes of a 16-level enhancement of sentence for illegal re-entry, since it does not include as an element the intentional “use, attempted use, or threatened use” of force and it is not one of the offenses enumerated in the Guidelines or its equivalent because it does not require the mens rea of recklessness which is required for manslaughter).
CRIME OF VIOLENCE – TERRORIST THREATS United States v. Acuna-Cuadros, 385 F.3d 875 (5th Cir. Sept. 21, 2004) (per curiam) (Texas conviction for retaliation, in violation of Tex. Penal Code § 36.06 (1995), penalizing one who “knowingly harms or threatens to harm another by an unlawful act,” did not qualify as “crime of violence” supporting 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii), since the offense does not “ha[ve] as an element the use, attempted use, or threatened use of physical force against the person of another”).
CRIME OF VIOLENCE – TERRORISTIC THREATS United States v. Martinez-Paramo, 380 F.3d 799 (5th Cir. Aug. 4, 2004) (Pennsylvania conviction for terroristic threats, in violation of 18 Pa. Cons. Stat. § 2706(a) (2003), was not established to be a crime of violence, under U.S.S.G. § 2L1.2, comment (b)(ii)(I), for purposes of enhancing the sentence for illegal re-entry, since the offense is not on the list in (II) and the record does not establish that it “has as an element the use, attempted use, or threatened use of physical force against [the person of] another.”).
CRIME OF VIOLENCE – AGGRAVATED STALKING United States v. Insaulgarat, 378 F.3d 456 (5th Cir. July 19, 2004) (Florida conviction of aggravated stalking (after being subject to a domestic violence protective order, “knowingly, willfully, maliciously, and repeatedly follows or harasses another person”), in violation of Florida Statute § 784.048(4) (1993), did not constitute a crime of violence within the meaning of U.S.S.G. § 4B1.1, for federal sentencing purposes, where harassment is defined as “engag[ing] in a course of conduct directed at a specific person that causes substantial emotional distress in such person . . . ,” under Fla. Stat. Ann. § 784.048(1)(a), because the aggravated stalking statute can be violated without the use or threatened use of physical force, and the additional information provided in the aggravated stalking indictment about the underlying injunction does not allege conduct which, by its nature, poses a serious potential risk of physical injury).
CRIME OF VIOLENCE – SEXUAL BATTERY Zaidi v. Ashcroft, 374 F.3d 357 (5th Cir. June 21, 2004) (Oklahoma conviction for sexual battery (“the intentional touching, mauling or feeling of the body or private parts of any person sixteen (16) years of age or older, in a lewd and lascivious manner and without the consent of that other person . . . .”), in violation of Okla. Stat. Ann. tit. 21, § 1123(B), constituted a “crime of violence,” as defined in 18 U.S.C. § 16(b), and thus an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), rendering the noncitizen subject to removal, under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), because the unconsented touching created a substantial risk that force would be used to complete the offense, and consequently the court of appeal lacked jurisdiction to review the final order of removal).
CRIME OF VIOLENCE – SEXUAL ASSAULT United States v. Sarmiento-Funes, 374 F.3d 336 (5th Cir. June 21, 2004) (Missouri conviction of sexual assault, in violation of Mo. Ann. Stat. § 566.040(1) committed if “he has sexual intercourse with another person knowing that he does so without that person’s consent,” did not qualify as a crime of violence under U.S.S.G. § 2L1.2 cmt. n.1(B)(ii), for purposes of 16-level enhancement of sentence for illegal re-entry).
CRIME OF VIOLENCE – DRIVE-BY SHOOTING – FACILITATION Nguyen v. Ashcroft, 366 F.3d 386 (5th Cir. Apr. 26, 2004) (Oklahoma conviction for facilitation of a drive-by shooting, under 21 Okl.St.Ann. § 652, subd. B., constituted a crime of violence aggravated felony for deportation purposes).
CRIME OF VIOLENCE – INTOXICATION ASSAULT United States v. Vargas-Duran, 356 F.3d 598 (5th Cir. Jan. 8, 2004) (en banc) (Texas conviction of intoxication assault – “by accident or mistake, while operating an aircraft, watercraft or motor vehicle in a public place while intoxicated, by reason of that intoxication causes serious bodily injury to another.” – in violation of Tex. Penal Code § 49.07, did not constitute a crime of violence, and so was not an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for purposes of a 16-level sentence enhancement for illegal re-entry under U.S.S.G. § 2L1.2(b)(1)(A)(ii), Application Note 1(B)(ii)(I) (2001), because the crime of violence definition requires that the defendant must intentionally avail him- or herself of the use, attempted use, or threatened use of physical force against the person of another, and that this must be an element of the predicate offense).
CRIME OF VIOLENCE – CHILD ENDANGERMENT United States v. Calderon-Pena, 339 F.3d 320 (5th Cir. July 17, 2003) (Texas conviction of child endangerment, in violation of Texas Penal Code § 22.041(c), would not on its face constitute a crime of violence under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for purposes of illegal re-entry sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2000, 2001), since it may be committed by omission; however, since the indictment in this case shows the elements involved in this particular conviction necessarily included placing a child in imminent danger of bodily injury through an intentional act, it did constitute a crime of violence in the instant case).
CRIME OF VIOLENCE – POSSESSION OF SAWED-OFF SHOTGUN United States v. Diaz-Diaz, 327 F.3d 410 (5th Cir. Apr. 3, 2003) (Texas conviction for possession of a prohibited weapon – a short-barrel firearm – in violation of Tex. Penal Code § 46.05, did not constitute a crime of violence aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for purposes of a 16-level sentence enhancement for illegal re-entry pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(iii) (2000), since there is no element or substantial risk that force will be used in the commission of the offense).
CRIME OF VIOLENCE – POSSESSION OF DEADLY WEAPON United States v. Medina-Anicacio, 325 F.3d 638 (5th Cir. Mar. 24, 2003) (California conviction of possession of a deadly weapon — a dirk or dagger — in violation of Penal Code § 12020(a), does not constitute a “crime of violence” within the meaning of 18 U.S.C. § 16(b), because there is no substantial risk that an offender may use violence to perpetrate the weapon possession offense, and it therefore does not constitute an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) for illegal re-entry sentence enhancement purposes under U.S.S.G. § 2L1.2).
CRIME OF VIOLENCE – UNAUTHORIZED USE OF MOTOR VEHICLE United States v. Rodriguez-Rodriguez, 323 F.3d 317 (5th Cir. Feb. 27, 2003) (Texas conviction of unauthorized use of a motor vehicle, in violation of Texas Penal Code Ann. § 30.02(a), is not a crime of violence within the meaning of U.S.S.G. § 2L1.2(b)(1)(A)(ii) because the offense is not listed in Application Note 1(B)(ii)(II) and does not have as an element the use, attempted use, or threatened use of physical force against the person of another).
CRIME OF VIOLENCE – BURGLARY OF BUILDING United States v. Rodriguez-Rodriguez, 323 F.3d 317 (5th Cir. Feb. 27, 2003) (Texas conviction of burglary of a building, in violation of Texas Penal Code Ann. § 31.07(a), is not a crime of violence within the meaning of U.S.S.G. § 2L1.2(b)(1)(A)(ii) because the offense is not listed in Application Note 1(B)(ii)(II) and does not have as an element the use, attempted use, or threatened use of physical force against the person of another).
CRIME OF VIOLENCE – INTOXICATION ASSAULT United States v. Vargas-Duran, 319 F.3d 194 (5th Cir. Jan. 16, 2003) (Texas conviction for intoxication assault, which requires proof that an intoxicated offender “cause[] serious bodily injury to another,” in violation of Penal Code Ann. § 49.07, qualified as a “crime of violence,” for purposes of the 16-level sentencing enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2001), because it has as an element the use of force against the person of another), overruled on rehearing en banc, 356 F.3d 598 (5th Cir. Jan. 8, 2004) (en banc), cert. denied, 125 S.Ct. 494 (2004).
CRIME OF VIOLENCE – AGGRAVATED SEXUAL ASSAULT ON MINOR UNDER 14 United States v. Rayo-Valdez, 302 F.3d 314 (5th Cir. Aug. 12, 2002) (Texas conviction for aggravated sexual assault on a minor under 14, in violation of Texas Penal Code § 22.021, constituted a crime of violence, and was thus an aggravated felony, under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), to enhance a sentence under U.S.S.G. § 2L1.2 for illegal re-entry).
CRIME OF VIOLENCE – INJURY TO CHILD United States v. Gracia-Cantu, 302 F.3d 308 (5th Cir. Aug. 9, 2002) (Texas conviction of injury to child, in violation of Texas Penal Code § 22.04(a), was not “crime of violence,” and so did not qualify as an “aggravated felony” under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) for illegal re-entry sentence enhancement purposes).
CRIME OF VIOLENCE – AUTO THEFT United States v. Charles, 301 F.3d 309 (5th Cir. July 31, 2002) (en banc) (Texas conviction of simple motor vehicle theft was not a crime of violence under U.S.S.G. § 4B1.2(a)(2) for federal firearm offense sentencing purposes, since the indictment did not suggest the offense involved a serious potential risk of injury to a person; note that this definition of “crime of violence” differs from the definition contained in 18 U.S.C. § 16(b)), vacating in part 275 F.3d 468 (5th Cir. Dec. 10, 2001), and overruling United States v. Jackson, 220 F.3d 635 (5th Cir. July 26, 2000).
CRIME OF VIOLENCE – DRIVING UNDER THE INFLUENCE United States v. Cervantes-Nava, 281 F.3d 501 (5th Cir. Feb. 4, 2002), cert. denied, 122 S.Ct. 2379 (2002) (Texas conviction of driving while intoxicated was not a crime of violence aggravated felony, under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), warranting increase in base offense level for illegal re-entry offense).
CRIME OF VIOLENCE – ASSAULT WITH BODILY INJURY United States v. Urias-Escobar, 281 F.3d 165 (5th Cir. Jan. 23, 2002), cert. denied, 122 S.Ct. 2377 (2002) (Texas conviction for misdemeanor assault with bodily injury, with one year suspended sentence imposed, was an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) that warranted an enhanced sentence under U.S.S.G. § 2L1.2 for illegal re-entry).
CRIME OF VIOLENCE – UNLAWFULLY CARRYING FIREARM United States v. Hernandez-Neave, 291 F.3d 296 (5th Cir. Dec. 21, 2001) (Texas conviction for unlawfully carrying firearm in place licensed to sell alcoholic beverages, in violation of Penal Code § 46.02(c), was not a crime of violence for illegal re-entry sentencing purposes).
CRIME OF VIOLENCE – AUTO THEFT United States v. Charles, 275 F.3d 468 (5th Cir. Dec. 10, 2001) (conviction of vehicle theft was “crime of violence” under special guideline for offense presenting “serious potential risk of injury to another,” different from illegal re-entry Guidelines, governing enhancement to sentence for ex-felon in possession of firearm conviction), vacated in part upon en banc rehearing, 301 F.3d 309 (5th Cir. July 31, 2002).
CRIME OF VIOLENCE – CRIMINAL MISCHIEF United States v. Landeros-Gonzales, 262 F.3d 424 (5th Cir. Aug. 14, 2001) (Texas conviction for violation of “criminal mischief” statute, for the intentional marking of another’s property, in violation of Texas Penal Code § 28.03(a)(1-3), was not a “crime of violence” and, consequently, was not an “aggravated felony” warranting an enhanced sentence under U.S.S.G. § 2L1.2 for illegal re-entry, since it does not “by its nature, involve[] a substantial risk that physical force against the person or property of another may be used in the course of committing the offense” under 18 U.S.C. § 16(b)).
CRIME OF VIOLENCE – MENACING United States v. Landeros-Arreola, 260 F.3d 407 (5th Cir. July 27, 2001) (Colorado reduction of sentence imposed for menacing conviction, after successful completion of Colorado’s Regimented Inmate Training Program, from four years imprisonment to probation, was not mere suspension of execution of sentence, but effectively reduced custody term below one year, so state menacing conviction did not constitute crime of violence “aggravated felony” conviction, with one year sentence imposed, under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), and no longer was sufficient to trigger a sentence enhancement of an illegal re-entry sentence).
CRIME OF VIOLENCE – POSSESSION OF SHORT-BARRELED SHOTGUN United States v. Rivas-Palacios, 244 F.3d 396 (5th Cir. Mar. 9, 2001) (Texas conviction for unlawful possession of an unregistered short-barreled shotgun is an aggravated felony crime of violence for illegal re-entry sentencing purposes), following United States v. Dunn, 946 F.2d 615, 620-21 (9th Cir. 1991), cert. denied, 502 U.S. 950, 112 S.Ct. 401 (1991) (involving a sawed-off shotgun).
CRIME OF VIOLENCE – DRIVING UNDER THE INFLUENCE United States v. Chapa-Garza, 243 F.3d 921 (5th Cir. Mar. 1, 2001), rehearing and rehearing en banc denied, 262 F.3d 479 (5th Cir. Aug. 20, 2001) (Texas conviction for felony driving while intoxicated, under Tex. Penal Code § 49.09 (providing that after two convictions for violating § 49.04, subsequent convictions are third-degree felonies), was not an aggravated felony crime of violence for sentencing purposes, because intentional force against the person or property of another is seldom, if ever, employed to commit the offense).
CRIME OF VIOLENCE – AUTO BURGLARY Santos v. Reno, 228 F.3d 591 (5th Cir. Sept. 26, 2000) (Texas conviction of burglary of vehicle, in violation of Texas Penal Code § 30.04(c), with sentence of five years deferred adjudication, constituted crime of violence and was therefore an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) for purposes of deportation).
CRIME OF VIOLENCE – UNAUTHORIZED USE OF VEHICLE United States v. Jackson, 220 F.3d 635 (5th Cir. July 26, 2000), cert. denied, 532 U.S. 988, 121 S.Ct. 1640 (2001) (Texas conviction of unauthorized use of a vehicle, in violation of Texas Penal Code § 31.07, was a “crime of violence” as that term is defined in U.S.S.G. § 4B1.2, which is different from the language of 18 U.S.C. § 16), overruled by United States v. Charles, 301 F.3d 309 (5th Cir. July 31, 2002) (en banc).
CRIME OF VIOLENCE – AUTO BURGLARY Lopez-Elias v. Reno, 209 F.3d 788 (5th Cir. May 1, 2000), cert. denied, 531 U.S. 1069, 121 S.Ct. 757 (2001) (Texas conviction of burglary of vehicle with intent to commit theft, in violation of Tex. Penal Code § 30.04(a) (West 1987), with suspended sentence of four years imprisonment, was a “crime of violence,” and therefore an aggravated felony, under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F)).
CRIME OF VIOLENCE – DRIVING UNDER THE INFLUENCE United States v. DeSantiago-Gonzalez, 207 F.3d 261 (5th Cir. Mar. 20, 2000) (New Mexico convictions of misdemeanor offenses of driving while intoxicated, prior to deportation, qualified as “crimes of violence,” to justify four-level increase in offense level under U.S.S.G. § 2L1.2(b)(1)(B)(ii) (“three or more misdemeanor crimes of violence or misdemeanor controlled substance offenses, increase by 4 levels”) for subsequent illegal re-entry offense), rehearing and suggestion for rehearing en banc denied, 213 F.3d 640 (5th Cir. Apr. 18, 2000) (Table).
CRIME OF VIOLENCE – DRIVING UNDER THE INFLUENCE Camacho-Marroquin v. INS, 188 F.3d 649 (5th Cir. Sept. 29, 1999) (Texas conviction of felony offense of driving while intoxicated was crime of violence and aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) for immigration purposes), opinion withdrawn, rehearing dismissed by Camacho-Marroquin v. INS, 222 F.3d 1040 (5th Cir. July 11, 2000).
CRIME OF VIOLENCE – TRESPASS United States v. Delgado-Enriquez, 188 F.3d 592 (5th Cir. Sept. 10, 1999) (Colorado conviction of first-degree criminal trespass by one who “knowingly and unlawfully enters or remains in a dwelling or if he enters any motor vehicle with intent to steal anything of value” in violation of Colo.Rev.Stat. Ann. § 18-4-502, was crime of violence under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) and 18 U.S.C. § 16(b), warranting 16-level enhancement of sentence under U.S.S.G. § 2L1.2(b)(1)(A) for illegal re-entry, since entering or remaining in a dwelling of another creates a substantial risk that physical force will be used against the residents in the dwelling).
CRIME OF VIOLENCE – UNAUTHORIZED USE OF MOTOR VEHICLE United States v. Galvan-Rodriguez, 169 F.3d 217 (5th Cir. Mar. 4, 1999), cert. denied, 528 U.S. 837 (1999) (conviction of unauthorized use of motor vehicle is “crime of violence,” and therefore an aggravated felony, under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) and 18 U.S.C. § 16(b), for purposes sentence enhancement under U.S.S.G. § 2L1.2(b)(2) for illegal re-entry).
CRIME OF VIOLENCE – INDECENCY WITH CHILD United States v. Velazquez-Overa, 100 F.3d 418 (5th Cir. Nov. 15, 1996), cert. denied, 520 U.S. 1133 (1997) (Texas convictions of indecency with child involving sexual contact, in violation of Penal Code § 21.11(a)(1), were crimes of violence, and so constituted aggravated felonies under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) warranting 16-level increase in illegal re-entry base offense level pursuant to U.S.S.G. § 2L1.2(b)(2)).
CRIME OF VIOLENCE – AUTO BURGLARY United States v. Ramos-Garcia, 95 F.3d 369 (5th Cir. Sept. 5, 1996), cert. denied, 519 U.S. 1083 (1997) (Texas conviction for burglary of vehicle in violation of Penal Code § 30.04 (1993) was an “aggravated felony “ under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) within meaning of U.S.S.G. § 2L1.2(b) sentence enhancement for illegal re-entry after deportation, despite change in Texas law, Texas Penal Code Ann. § 30.04 (1994), reducing burglary of vehicle from felony to misdemeanor).
CRIME OF VIOLENCE – AUTO BURGLARY United States v. Rodriguez-Guzman, 56 F.3d 18 (5th Cir. June 6, 1995) (Texas conviction for burglary of automobile, in violation of Texas Penal Code § 30.04 (1994), was a crime of violence, as defined in 18 U.S.C. § 16(b), constituting an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for purposes of sentencing enhancement under U.S.S.G. § 2L1.2(b)(2) for illegal re-entry after deportation), overruled by United States v. Turner, 305 F.3d 349 (5th Cir. Sept. 6, 2002) (Rodriguez decision improperly applied 18 U.S.C. § 16 definition of crime of violence in sentencing context).
CRIME OF VIOLENCE – COMMERCIAL BURGLARY United States v. Rodriguez-Guzman, 56 F.3d 18 (5th Cir. June 6, 1995) (Texas conviction for burglary of nonresidential building in violation of Texas Penal Code § § 30.02 (1994), was a crime of violence, as defined in 18 U.S.C. § 16(b), constituting an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for purposes of sentencing enhancement under U.S.S.G. § 2L1.2(b)(2) for illegal re-entry after deportation), overruled by United States v. Turner, 305 F.3d 349 (5th Cir. Sept. 6, 2002) (Rodriguez decision improperly applied 18 U.S.C. § 16 definition of crime of violence in sentencing context).
CRIME OF VIOLENCE – BURGLARY OF DWELLING United States v. Guadardo, 40 F.3d 102 (5th Cir. Dec. 2, 1994) (Texas conviction of burglary of habitation in violation of Texas Penal Code § 30.02 was a crime of violence, as defined in 18 U.S.C. § 16(b), constituting an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for purposes of sentencing enhancement under U.S.S.G. § 2L1.2(b)(2) for illegal re-entry after deportation).
Sixth Circuit
CRIME OF VIOLENCE – SEXUAL ABUSE OF MINOR Patel v. Ashcroft, 401 F.3d 400 (6th Cir. Mar. 8, 2005) (Illinois conviction of criminal sexual abuse, in violation of 720 Ill. Comp. Stat. § 5/12-15, constituted a crime of violence under 18 U.S.C. § 16(b), and was therefore an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), “because of the disparate ages of the defendant and the victim, or the mental incapacity or physical helplessness of the victim, or the defendant’s position of authority over the victim, the crime, semper et ubique, includes a substantial risk of physical force.”).
CRIME OF VIOLENCE – ASSAULT WITH INTENT TO COMMIT SEXUAL BATTERY United States v. Arnold, 58 F.3d 1117, 1122 n. 4 (6th Cir. July 13, 1995) (Tennessee conviction for assault with intent to commit sexual battery is not categorically a “crime of violence” for purposes of 18 U.S.C. § 922(g)(1) (felon with a firearm) because the minimum conduct of the offense can be committed through force or coercion).
Seventh Circuit
CRIME OF VIOLENCE – DISCHARGING A FIREARM United States v. Jaimes-Jaimes, 406 F.3d 845 (7th Cir. May 4, 2005) (Wisconsin conviction for discharging a firearm into a vehicle or building, in violation of W.S.A. § 941.20(2)(a), was not a conviction for a “crime of violence” so as to warrant a 16-level increase in the offense level under U.S.S.G. § 2L1.2(b)(1)(A)(ii) for illegal re-entry, since the elements of the offense of conviction did not require that the trier of fact conclude that defendant used or threatened use of physical force against the person of another).
CRIME OF VIOLENCE – HARASSMENT Szucz-Toldy v. Gonzalez, 400 F.3d 978 (7th Cir. Mar. 11, 2005) (Illinois conviction for “harassment by telephone” under 720 ILCS § 135/1-1(2), prohibiting “making a telephone call, whether or not conversation ensues, with intent to abuse, threaten or harass any person at the called number,” is not an aggravated felony crime of violence for immigration purposes because it is not necessary to prove the use or threatened use of physical force to sustain a conviction under the statute).
CRIME OF VIOLENCE – BATTERY Flores v. Ashcroft, 350 F.3d 666, 672 (9th Cir. Nov. 26, 2003) (Indiana conviction of battery, under Indiana Code § 35-42-2-1, is not categorically a crime of violence for purposes of INA § 237(a)(2)(E)(i) (domestic violence), because the offense can be committed by a mere offensive touching).
CRIME OF VIOLENCE – BURGLARY United States v. Alvarez-Martinez, 286 F.3d 470 (7th Cir. Apr. 12, 2002) (Illinois burglary conviction, in violation of 720 ILCS § 5/19-1(a), was a crime of violence under 18 U.S.C. § 16(b), and thus an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for purposes of sentence enhancement under U.S.S.G. § 2L1.2 for unlawful re-entry, even though the statute was divisible, since defendant’s acquiescence to the pre-sentence report amounted to implied stipulation that he broke into vehicle, thus using force against property).
CRIME OF VIOLENCE – VEHICULAR HOMICIDE BY INTOXICATION Bazan-Reyes v. INS, 256 F.3d 600 (7th Cir. July 5, 2001) (Wisconsin conviction for homicide by intoxicated use of vehicle, in violation of Wis.St.1996, § 940.09, was not an aggravated felony crime of violence, under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for deportation purposes, since offense required that offender actually hit someone, but did not require that he intentionally use force to achieve that result).
CRIME OF VIOLENCE – DRIVING UNDER THE INFLUENCE Bazan-Reyes v. INS, 256 F.3d 600 (7th Cir. July 5, 2001) (Illinois conviction for felony drunk driving under 625 Ill. Comp. Stat. § 5/11-501(d)(1), because of two prior DUI convictions, was not “crime of violence” under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for deportation purposes).
CRIME OF VIOLENCE – DRIVING UNDER THE INFLUENCE Bazan-Reyes v. INS, 256 F.3d 600, 603 (7th Cir. July 5, 2001) (Indiana conviction of a Class D felony, Operating a Vehicle While Intoxicated, with prior convictions, in violation of section 9-30-5-3 of the Indiana Code, with a sentence to three years imprisonment, was not an aggravated felony “crime of violence” under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for deportation purposes, since offense but did not require that the defendant intentionally use force).
CRIME OF VIOLENCE – SEXUAL ASSAULT ON CHILD United States v. Martinez-Carillo, 250 F.3d 1101 (7th Cir. May 17, 2001), cert. denied, 122 S.Ct. 285 (2001) (Illinois conviction for criminal sexual assault in violation of 720 ILCS § 5/12-13(a)(3), for inserting finger into daughter’s vagina, who was thirteen years old at the time, was a “crime of violence” for purposes of disqualifying defendant from downward departure of sentence for illegal re-entry based on minor nature of aggravated felony conviction).
CRIME OF VIOLENCE – STATUTORY RAPE Xiong v. INS, 173 F.3d 601 (7th Cir. Apr. 12, 1999) (Wisconsin conviction of “sexual contact or sexual intercourse with a person who has not attained the age of 16 years,” in violation of W.S.A. § 948.02(2), was not a “crime of violence,” and thus was not an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) for deportation purposes, where conduct on which conviction was based consisted of consensual sex between 18-year-old boyfriend and his 15-year-old girlfriend).
Eighth Circuit
CRIME OF VIOLENCE – LASCIVIOUS ACTS WITH A CHILD United States v. Garcia-Juarez, 421 F.3d 655 (8th Cir. Aug. 29, 2005) (Iowa conviction of lascivious acts with a child, in violation of Iowa Code § 709.8, is an aggravated felony crime of violence both for immigration and sentencing purposes).
CRIME OF VIOLENCE – AUTOMOBILE HOMICIDE United States v. Gonzalez-Lopez, 335 F.3d 793 (8th Cir. July 14, 2003) (Utah conviction of automobile homicide, in violation of Utah Code Ann. § 76-5-207(1), held to be a crime of violence for purposes of illegal re-entry 16-level sentence enhancement under U.S.S.G. § 2L1.2(b)(1), since the Utah offense has as an element the use of physical force against another, irrespective of the predicate offense’s mens rea element; no argument made that specific offense of conviction did not require use of force).
CRIME OF VIOLENCE – ROBBERY United States v. Valladares, 304 F.3d 1300 (8th Cir. Sept. 26, 2002) (California conviction for second-degree robbery under Penal Code § 211 constituted an aggravated felony within meaning of version of Sentencing Guidelines in effect at time of defendant’s current offense, so that application of amended guideline, which provided for the same increase, did not violate the Ex Post Facto clause).
CRIME OF VIOLENCE – GOING ARMED WITH INTENT United States v. Gomez-Hernandez, 300 F.3d 974 (8th Cir. Aug. 28, 2002) (Iowa conviction of going armed with intent to use a weapon unlawfully, in violation of Iowa Code § 708.8, is a crime of violence and therefore an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), and justifies illegal re-entry sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(A)).
CRIME OF VIOLENCE – UNLAWFUL SEX WITH MINOR United States v. Gomez-Hernandez, 300 F.3d 974 (8th Cir. Aug. 28, 2002) (California conviction of unlawful sexual intercourse with a minor, in violation of California Penal Code § 261.5(d), is a crime of violence and therefore an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), and justifies illegal re-entry sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(A)).
CRIME OF VIOLENCE – VEHICULAR HOMICIDE Omar v. INS, 298 F.3d 710 (8th Cir. Aug. 5, 2002) (Minnesota conviction of criminal vehicular homicide, in violation of M.S.A. § 609.21, subd. 1(4), was a crime of violence, and therefore was an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for removal purposes).
CRIME OF VIOLENCE – AUTO BURGLARY United States v. Guzman-Landeros, 207 F.3d 1034, 1035 (8th Cir. Mar. 27, 2000) (Texas convictions for burglary of vehicle constituted aggravated felonies as crimes of violence under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for purposes of sentencing enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A) to sentence for illegal re-entry).
CRIME OF VIOLENCE – SEXUAL ASSAULT OF CHILD United States v. Alas-Castro, 184 F.3d 812 (8th Cir. June 26, 1999) (Nebraska conviction for sexual assault of a child, in violation of Neb. Rev. Stat. § 28-320.01(1), was a crime of violence for which term of imprisonment was at least one year, and thus constituted an “aggravated felony” under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) requiring a 16-level enhancement to defendant’s base offense level under U.S.S.G. § 2L1.2(b)(1)(A) (1998)).
CRIME OF VIOLENCE – ASSAULT United States v. Smith, 171 F.3d 617 (8th Cir. Mar. 24, 1999) (Iowa conviction of misdemeanor assault, under Iowa Code § 708.1(1), which may be committed by “[a]ny act which is . . . intended to result in physical contact which will be insulting or offensive to another,” by necessity, requires physical force to complete, and is thus sufficient physical force to constitute a crime of violence for purposes of 18 U.S.C. § 922(g) (felon with a firearm)).
CRIME OF VIOLENCE – MANSLAUGHTER United States v. Moore, 38 F.3d 977 (8th Cir. Oct. 24, 1994) (federal conviction of manslaughter is a crime of violence within meaning of federal sentencing statute different from 18 U.S.C. § 16 and the aggravated felony definition contained in INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F)).
CRIME OF VIOLENCE – STATUTORY RAPE United States v. Bauer, 990 F.2d 373 (8th Cir. Apr. 1, 1993) (Iowa conviction of statutory rape constituted crime of violence for purposes of career offender enhancement, regardless whether act was consensual).
CRIME OF VIOLENCE – SEX OFFENSE WITH MINOR United States v. Rodriguez, 979 F.2d 138 (8th Cir. Nov. 9, 1992) (Iowa conviction of performing lascivious acts with minors, in violation of I.C.A. § 709.8, constituted crime of violence within INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) and 18 U.S.C. § 16(b), for purposes of enhancing sentence for illegal re-entry).
Ninth Circuit
CRIME OF VIOLENCE – UNLAWFUL SEX WITH A MINOR Valencia v. Gonzales, 439 F.3d 1046 (9th Cir. Mar. 6, 2006) (California conviction of engaging in unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator under Penal Code § 261.5(c) is not categorically a crime of violence under 18 U.S.C. § 16 for deportation purposes, since it does not have force as an element, under 18 U.S.C. § 16(a), and the full range of conduct encompassed by this offense does not present a substantial risk that violent force will be used in the commission of the offense under 18 U.S.C. § 16(b); mere inability to give legal consent if under 18 does not create a substantial risk that violent force will be used to commit the offense where actual consent is present; decision did not consider whether this conviction constituted a sexual abuse of a minor aggravated felony because the noncitizen was not ordered removed on that ground), second opinion, 431 F.3d 673, superseded and withdrawn.
CRIME OF VIOLENCE – POSSESSION OF ASSAULT WEAPON United States v. Serna, 435 F.3d 1046 (9th Cir. Jan. 23, 2006) (California conviction for possession of assault weapon in violation of California Penal Code § 12280(b) was not “crime of violence” under the federal Sentencing Guidelines for purposes of illegal re-entry sentence enhancement).
CRIME OF VIOLENCE – BURGLARY OF DWELLING United States v. Guerrero-Velasquez, 434 F.3d 1193 (9th Cir. Jan. 19, 2006) (Washington conviction of second-degree burglary, under Wash. Rev. Code § 9A.52.030(1) (“A person is guilty of burglary in the second degree if, with intent to commit a crime against a person or property therein, he enters or remains unlawfully in a building other than a vehicle or a dwelling.”), held to constitute crime of violence for purposes of imposing a 16-level increase in base offense level under U.S.S.G. § 2L1.2(b)(1)(A)(ii) for illegal re-entry sentence, where signed plea agreement admitted fact charged in information that defendant illegally entered a residence).
CRIME OF VIOLENCE – LEWD ACT WITH CHILD United States v. Teeples, 432 F.3d 1110 (9th Cir. Jan. 5, 2006) (California conviction for violation of California Penal Code § 288(a), lewd act with child, was a crime of violence for purposes of career offender sentencing).
CRIME OF VIOLENCE – HARASSING TELEPHONE CALL United States v. Ladwig, 432 F.3d 1001 (9th Cir. Dec. 27, 2005) (Washington felony conviction for making harassing telephone call under R.C.W. § 9.61.230(3)(b), is a “violent felony” predicate offense under the Armed Career Criminal Act, 18 U.S.C. § 924(e), because it has a threat of use of physical force against the person of another, and is a felony only if committed by a threat to kill, which is a conduct-based sentence enhancement that can be considered part of the record of conviction in making this determination).
CRIME OF VIOLENCE – FALSE IMPRISONMENT United States v. Hernandez-Hernandez, 431 F.3d 1212 (9th Cir. Dec. 16, 2005) (California conviction of felony false imprisonment, in violation of Penal Code § § 236, 237 constitutes a divisible statute, encompassing some offenses that constitute crimes of violence within the meaning of U.S.S.G. § 2L1.2(b)(1)(A)(ii), and some that do not; if defendant was or might have been convicted of committing false imprisonment by fraud or deceit, the conviction would not fall within the crime of violence portion of the divisible statute, for purposes of assessing a 16-level increase in base offense level for illegal re-entry).
CRIME OF VIOLENCE – UNLAWFUL SEX WITH A MINOR Valencia v. Gonzales, 431 F.3d 673 (9th Cir. Dec. 12, 2005) (California conviction of engaging in unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator under Penal Code § 261.5(c) is not, absent aggravating factors, a crime of violence under 18 U.S.C. § 16 for deportation purposes, since it does not have force as an element, under 18 U.S.C. § 16(a), and the full range of conduct encompassed by this offense does not present a substantial risk that violent force will be used in the commission of the offense under 18 U.S.C. § 16(b); mere inability to give legal consent if under 18 does not create a substantial risk that violent force will be used to commit the offense where actual consent is present; decision did not consider whether this conviction constituted a sexual abuse of a minor aggravated felony because the noncitizen was not ordered removed on that ground), withdrawn and superceded by 439 F.3d 1046 (9th Cir. Mar. 6, 2006).
CRIME OF VIOLENCE – POSSESSION OF SHORT-BARRELED SHOTGUN United States v. Delaney, 427 F.3d 1224 (9th Cir. Nov. 7, 2005) (California conviction of possession of a short-barreled shotgun, in violation of California Penal Code § 12020(a)(1), is a crime of violence for sentencing purposes, since short-barreled shotguns are “inherently dangerous,” their only use is violence, and thus their possession involves a substantial risk of the use of physical force).
CRIME OF VIOLENCE – ATTEMPTING TO ELUDE POLICE VEHICLE United States v. Kelly, 422 F.3d 889 (9th Cir. Sept. 6, 2005) (Washington conviction for attempting to elude a police vehicle, in violation of R.C.W. § 46.61.024, is not a “crime of violence” for sentencing purposes).
CRIME OF VIOLENCE – SEXUAL BATTERY United States v. Lopez-Montanez, 421 F.3d 926 (9th Cir. Aug. 26, 2005) (California conviction of sexual battery under California Penal Code § 243.4, is not a categorical crime of violence under the federal Sentencing Guidelines, as the offense is not necessarily a “forcible” sex offense under U.S.S.G. § 2L1.2, cmt. n. 1(B)(ii)); but see Lisbey v. Gonzales, 420 F.3d 930 (9th Cir. Aug. 22, 2005) (sexual battery under California Penal Code § 243.4 constitutes an aggravated felony for removal purposes, as the offense involves a substantial risk of physical force under 18 U.S.C. § 16(b)).
CRIME OF VIOLENCE – SEXUAL BATTERY Lisbey v. Gonzales, 420 F.3d 930 (9th Cir. Aug. 22, 2005) (California conviction of sexual battery under California Penal Code § 243.4 constitutes an aggravated felony for removal purposes, as the offense involves a substantial risk of physical force under 18 U.S.C. § 16(b)); but see United States v. Lopez-Montanez, 421 F.3d 926 (9th Cir. Aug. 26, 2005) (sexual battery under California Penal Code § 243.4, is not a categorical crime of violence under the federal Sentencing Guidelines, as the offense is not necessarily a “forcible” sex offense under U.S.S.G. § 2L1.2, cmt. n. 1(B)(ii)).
CRIME OF VIOLENCE – DOMESTIC VIOLENCE Fernandez-Ruiz v. Gonzales, 410 F.3d 585 (9th Cir. June 1, 2005) (Arizona misdemeanor conviction of domestic violence assault, in violation of Ariz. Rev. Stat. § § 13-1203(A)(1) or (2), which both require the use, attempted use, or threatened use of physical force against the person or property of another, therefore both qualify as crimes of violence under 18 U.S.C. § 16(a); the offenses were designated as a crimes of domestic violence under state law pursuant to Ariz. Rev. Stat. § 12-3601 – even though the state label is usually considered irrelevant because the state conviction must qualify under the federal definition of a ground of deportation), vacated on grant of rehearing en banc, 431 F.3d 1212 (9th Cir. Dec. 13, 2005).
CRIME OF VIOLENCE – VEHICULAR MANSLAUGHTER Lara-Cazares v. Gonzales, 408 F.3d 1217 (9th Cir. May 23, 2005) (California conviction of gross vehicular manslaughter while intoxicated, in violation of Penal Code § 191.5(a), which can be committed by gross negligence, does not qualify as a crime of violence within the meaning of 18 U.S.C. § 16, and so does not constitute a crime of violence aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) for immigration purposes, even if a sentence of one year or more has been imposed, holding that gross negligence is not the same as recklessness), disapproving Park v. INS, 252 F.3d 1018 (9th Cir. June 5, 2001), and cases therein cited as no longer good law in light of Leocal v Ashcroft, 125 S.Ct. 377 (Nov. 9, 2004).
CRIME OF VIOLENCE – DOMESTIC VIOLENCE United States v. Nobriga, 408 F.3d 1178 (9th Cir. May 20, 2005) (per curiam) (Hawaii conviction of abuse of a family or household member, in violation of Haw. Rev. Stat. § 709-906(A), did not invariably constitute a crime of domestic violence, under 18 U.S.C. § 921(a)(33)(A)(ii), because it did not necessarily require the use of violent force against the body of another individual, since it also prohibited refusal to comply with the lawful order of a police officer, but the “physically abuse” prong “requires, at a minimum, a reckless use of physical force”).
CRIME OF VIOLENCE – STATUTORY RAPE Valencia v. Gonzales, 406 F.3d 1154 (9th Cir. May 12, 2005) (California conviction of unlawful sexual intercourse with a person under 18, in violation of Penal Code § 261.5(c), with a five-year suspended sentence, did not have as an element the use, attempt, or threat of force, and so did not constitute a crime of violence aggravated felony under 18 U.S.C. § 16(a), within the meaning of INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), or trigger removal under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii)), withdrawn and superceded by 439 F.3d 1046 (9th Cir. Mar. 6, 2006).
CRIME OF VIOLENCE – STATUTORY RAPE Valencia v. Gonzales, 406 F.3d 1154 (9th Cir. May 12, 2005) (California conviction of unlawful sexual intercourse with a person under 18 (here 17), in violation of Penal Code § 261.5(c), with a five-year suspended sentence, constituted a crime of violence aggravated felony under 18 U.S.C. § 16(b), within the meaning of INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), and therefore triggered removal under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), following United States v. Granbois, 376 F.3d 993 (9th Cir. July 22, 2004), even though in Granbois, the victim was 15, and in Granbois, the court considered whether the offense “presented a serious potential risk of physical injury to another” under U.S.S.G. § 4B1.2(a), whereas here the question is whether the offense presents “a substantial risk that physical force against the person or property of another may be used in the course of committing the offense,” under 18 U.S.C. § 16(b)), withdrawn and superceded by 439 F.3d 1046 (9th Cir. Mar. 6, 2006).
CRIME OF VIOLENCE – SHOOTING AT INHABITED BUILDING United States v. Cortez-Arias, 415 F.3d 977 (9th Cir. Apr. 18, 2005) (California conviction of shooting at inhabited dwelling, in violation of Penal Code § 246, was a conviction for a “crime of violence” for sentencing purposes following prosecution for illegal re-entry).
CRIME OF VIOLENCE – EVADING AN OFFICER Penuliar v. Ashcroft, 395 F.3d 1037 (9th Cir. Jan. 12, 2005) (California conviction of evading an officer, in violation of Vehicle Code § 2800.2(a), was not a crime of violence, within the meaning of INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), because the statute and charge were both overbroad with respect to the aggravated felony definition of a crime of violence by encompassing merely negligent conduct).
CRIME OF VIOLENCE – CHILD ABUSE United States v. Contreras-Salas, 387 F.3d 1095 (9th Cir. Nov. 3, 2004) (Nevada conviction of child abuse under Nev. Rev. Statutes § 200.508 does not qualify as a crime of violence for purposes of enhancement of sentence for unlawful re-entry after deportation, since statute may be violated by negligence alone, and record of conviction was unclear as to level of intent).
CRIME OF VIOLENCE – HARASSMENT Singh v. Ashcroft, 386 F.3d 1228 (9th Cir. Oct. 21, 2004) (Oregon conviction under Or. Rev. Stat. § 166.065(1)(a)(A), punishing intentionally harassing or annoying another person by subjecting that person to offensive physical contact, is not a crime of violence, and therefore not a crime of domestic violence for immigration purposes, since the force required to commit the offense, including spitting, is not necessarily “violent” force).
CRIME OF VIOLENCE – ASSAULT United States v. Sandoval, 390 F.3d 1077 (9th Cir. Aug. 19, 2004) (Washington Assault in the Third Degree is not a crime of violence for sentencing purposes since the statute may be violated through an unlawful touching that does not involve substantial physical force or seriously risk physical injury).
CRIME OF VIOLENCE – ABUSIVE SEXUAL CONTACT United States v. Granbois, 376 F.3d 993 (9th Cir. July 22, 2004) (federal conviction under 18 U.S.C. § 2244(a)(3), sexual contact with a child, is a “crime of violence” for purposes of the Career Offender Guideline, U.S.S.G. § 4B1.1); see United States v. Pereira-Salmeron, 337 F.3d 1148 (9th Cir. Aug. 4, 2003) (crimes involving sexual abuse of a minor are per se “crimes of violence” for sentencing purposes following conviction for illegal re-entry).
CRIME OF VIOLENCE – BURGLARY United States v. Matthews, 374 F.3d 872 (9th Cir. July 7, 2004) (conviction of burglary of an occupied building did not constitute a crime of violence under U.S.S.G. § 4B1.2(a)(2), where the parties agreed the term “occupied” did not require a person’s actual physical presence).
CRIME OF VIOLENCE – CORPORAL INJURY ON SPOUSE United States v. Hernandez-Hernandez, 374 F.3d 808 (9th Cir. June 30, 2004) (California misdemeanor conviction of corporal injury on spouse, in violation of Penal Code § 273.5(a), cannot constitute a crime of violence aggravated felony conviction, so as to support a 16-level enhancement of sentence for illegal re-entry under U.S.S.G. § 2L1.2(b)(1)(A)(ii), because it was a misdemeanor with a maximum possible sentence of one year in county jail).
CRIME OF VIOLENCE – FALSE IMPRISONMENT United States v. Hernandez-Hernandez, 374 F.3d 808 (9th Cir. June 30, 2004) (California felony conviction of false imprisonment, in violation of Penal Code § § 236, 237, is a divisible statute, as it may be committed by violence, menace, fraud or deceit; the record of conviction, which included by stipulation the statement of facts contained in a motion filed in the criminal case, established that the conviction occurred under the violence portion of the statute; conviction therefore constituted a crime of violence aggravated felony conviction, supporting a 16-level enhancement of sentence for illegal re-entry under U.S.S.G. § 2L1.2(b)(1)(A)(ii)).
CRIME OF VIOLENCE – POSSESSION OF DESTRUCTIVE DEVICE United States v. Fish, 368 F.3d 1200 (9th Cir. May 28, 2004) (Oregon conviction of possession of a destructive device, under Or. Rev. Stat. § 166.382, did not constitute “a crime of violence” under the U.S.S.G. to allow an increased offense level in determining sentencing).
CRIME OF VIOLENCE – FIREARMS United States v. Sarbia, 367 F.3d 1079 (9th Cir. May 14, 2004) (Nevada conviction of attempt to discharge a firearm at an occupied structure constitutes a crime of violence under U.S.S.G. § 4B1.2).
CRIME OF VIOLENCE – BURGLARY United States v. Rodriguez-Rodriguez, 364 F.3d 1142 (9th Cir. Apr. 20, 2004) (California conviction for burglary of an inhabited building, under California Penal Code § 460, is an aggravated felony and a “crime of violence” for sentencing purposes).
CRIME OF VIOLENCE – FIREARM USE – EVADING AN OFFICER Reyes-Alcaraz v. Ashcroft, 363 F.3d 937 (9th Cir. Apr. 8, 2004) (California conviction of exhibiting a deadly weapon with intent to resist arrest, in violation of California Penal Code § 417.8, is a crime of violence and thus an “aggravated felony” under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for immigration purposes).
CRIME OF VIOLENCE – ASSAULT WITH INJURY – MAYHEM Ruiz-Morales v. Ashcroft, 361 F.3d 1219 (9th Cir. Mar. 24, 2004) (California conviction of mayhem, under California Penal Code § 203, punishing unlawful and malicious disfigurement or dismemberment, is an aggravated felony crime of violence for immigration purposes).
CRIME OF VIOLENCE – FLIGHT FROM OFFICER United States v. Campos-Fuerte, 357 F.3d 956 (9th Cir. Feb. 4, 2004) (California conviction of fleeing from an officer by driving a vehicle in a willful or wanton manner, in violation of California Vehicle Code § 2800.2, constitutes a crime of violence under 18 U.S.C. § 16(b), and is therefore an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for purposes of enhancing an illegal re-entry sentence).
CRIME OF VIOLENCE – RESIDENTIAL BURGLARY United States v. Wenner, 351 F.3d 969 (9th Cir. Dec. 12, 2003) (Washington conviction of residential burglary, in violation of Wash. Rev. Code § 9A.52.025(1), is not a “burglary of a dwelling” crime of violence as defined by U.S.S.G. § 4B1.2(a)(2), since the statute classifies railway cars, fenced areas, and cargo containers as dwellings although they are not structures under Taylor v. United States, 495 U.S. 575 (1990); Taylor applies to sentencing as well as immigration context).
CRIME OF VIOLENCE – LEWD ACT WITH CHILD United States v. Medina-Maella, 351 F.3d 944 (9th Cir. Dec. 10, 2003) (California conviction for lewd or lascivious acts upon a child under the age of 14 years, under California Penal Code § 288, constitutes a “crime of violence” for purposes of unlawful re-entry under U.S.S.G. § 2L1.2, even though the offense does not have force as an element; recent amendments to U.S.S.G. § 2L1.2 irrelevant).
CRIME OF VIOLENCE – VEHICULAR ASSAULT United States v. Grajeda-Ramirez, 348 F.3d 1123 (9th Cir. Nov. 12, 2003) (Colorado conviction of reckless vehicular assault, in violation of Colo.Rev.Stat. § 18-3-205(1)(a), is a “crime of violence” for the purposes of the U.S.S.G.).
CRIME OF VIOLENCE – CRIMINAL THREATS Rosales-Rosales v. Ashcroft, 347 F.3d 714 (9th Cir. Oct. 17, 2003) (California conviction of terrorist or criminal threats, in violation of Penal Code § 422, constitutes an “aggravated felony” as a crime of violence under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), rendering noncitizen subject to deportation).
CRIME OF VIOLENCE – BATTERY United States v. Belless, 338 F.3d 1063 (9th Cir. Aug. 11, 2003) (Wyoming battery conviction: domestic relationship not a required element in order for Wyoming battery conviction to serve as a predicate offense under the 18 U.S.C. § 921(a)(33)(A) firearm statute’s definition of a crime of domestic violence; however, as the battery statute encompasses less violent behavior than the requisite use or attempted use of physical force, the statute does not qualify as a predicate offense for that purpose).
CRIME OF VIOLENCE – ASSAULT IN VIOLATION OF COURT ORDER United States v. Pimental-Flores, 339 F.3d 959 (9th Cir. Aug. 11, 2003) (Washington conviction of third degree assault in violation of court order, under Rev. Code of Washington § 26.50.110(4), may fail to trigger a 16-level illegal re-entry sentence enhancement, as a crime of violence under U.S.S.G. § 2L1.2 (2001), because the statute proscribes merely negligent assault).
CRIME OF VIOLENCE – CARNAL KNOWLEDGE OF CHILD 13-15 YEARS OLD United States v. Pereira-Salmeron, 337 F.3d 1148 (9th Cir. Aug. 4, 2003) (Virginia conviction of carnal knowledge of a child between 13 and 15 years of age, in violation of Virginia Code § 18.2-63, constituted a “crime of violence” under U.S.S.G. § 2L1.2 (2002); although the offense does not have as an element the use, attempted use, or threatened use of physical force, the offense falls within the second part of the “crime of violence” definition under U.S.S.G. § 2L1.2, cmt n.1(B)(II), which includes sexual abuse of a minor).
CRIME OF VIOLENCE – VOLUNTARY MANSLAUGHTER United States v. Bonilla-Montenegro, 331 F.3d 1047 (9th Cir. June 9, 2003) (California conviction of voluntary manslaughter, in violation of Penal Code § 192(a), held to be a “crime of violence” aggravated felony, under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for purposes of enhancing illegal re-entry sentence under U.S.S.G. § 2L1.2(b)(1)(A), even though the elements of the offense do not require intentional use of force, because it is listed in the Guideline).
CRIME OF VIOLENCE – BATTERY CAUSING SERIOUS BODILY INJURY United States v. Gonzalez-Tamariz, 310 F.3d 1168 (9th Cir. Nov. 18, 2002) (Nevada conviction of battery causing substantial bodily harm, in violation of Nev.Rev.St. § 200.481, constituted aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), as a crime of violence with one-year sentence imposed, regardless of its state law label as a misdemeanor with one-year maximum possible sentence, for purposes of enhancing federal sentence for illegal re-entry under U.S.S.G. § 2L1.2(b)(1)(A)); accord, United States v. Pacheco, 225 F.3d 148, 149 (2d Cir. Aug. 29, 2000); United States v. Marin-Navarette, 244 F.3d 1284, 1286-87 (11th Cir. Mar. 23, 2001); United States v. Saenz-Mendoza, 287 F.3d 1011, 1014 (10th Cir. Apr. 26, 2002), quoting United States v. Graham, 169 F.3d 787, 792 (3d Cir. Mar. 5, 1999); United States v. Urias-Escobar, 281 F.3d 165, 168 (5th Cir. Jan. 23, 2002), cert. denied, 122 S.Ct. 2377 (2002).
CRIME OF VIOLENCE – DRIVING UNDER THE INFLUENCE Cuevas-Diaz v. Ashcroft, 37 Fed.Appx. 935 (9th Cir. June 19, 2002) (California felony conviction for violating Vehicle Code § 23152(a), driving under the influence, with prior convictions, does not constitute an aggravated felony within the meaning of INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F)).
CRIME OF VIOLENCE – BURGLARY United States v. Sandoval-Venegas, 292 F.3d 1101 (9th Cir. June 14, 2002) (California conviction of violating Penal Code § 459 (burglary) not a crime of violence for purposes of federal career criminal enhancement of bank robbery sentence under U.S.S.G. § § 4B1.1, 4B1.2(a), where record of conviction did not establish that burglary was of a dwelling).
CRIME OF VIOLENCE – FELONY ENDANGERMENT United States v. Hernandez-Castellanos, 287 F.3d 876 (9th Cir. Apr. 25, 2002) (Arizona conviction of felony endangerment in violation of A.R.S. § 13-1201 was not categorically an aggravated felony under a crime of violence theory under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) for illegal re-entry enhancement purposes under U.S.S.G. § 2L1.2(b)(1)(A), because a “substantial risk of imminent death or physical injury” as contained in the state statute is not the same as a “substantial risk that physical force . . . may be used,” which is necessary to constitute a “crime of violence” under 18 U.S.C. § 16(b)).
CRIME OF VIOLENCE – DRIVING UNDER THE INFLUENCE Montiel-Barraza v. INS, 275 F.3d 1178 (9th Cir. Jan. 16, 2002) (California conviction of driving under the influence of alcohol in violation of California Vehicle Code § 23152(a), a felony under Vehicle Code § 23175 as a result of four prior DUI convictions, was not a crime of violence or an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) for immigration purposes).
CRIME OF VIOLENCE – DRIVING UNDER THE INFLUENCE United States v. Portillo-Mendoza, 273 F.3d 1224, 1226 (9th Cir. Dec. 17, 2001) (California DUI conviction with priors in violation of California Vehicle Code § § 23152 and 23550 was not an aggravated felony for purposes of enhancing a sentence for illegal re-entry).
CRIME OF VIOLENCE – DRIVING UNDER THE INFLUENCE United States v. Trinidad-Aquino, 259 F.3d 1140 (9th Cir. Aug. 8, 2001) (California conviction for driving under influence of alcohol with injury to another, a violation of California Vehicle Code § 23153, was not “crime of violence,” and thus was not “aggravated felony” under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) and did not warrant 16-level increase of illegal re-entry sentence under U.S.S.G. § 2L1.2(b)(1)(A)).
CRIME OF VIOLENCE – CORPORAL INJURY ON SPOUSE United States v. Jimenez, 258 F.3d 1120 (9th Cir. July 31, 2001) (California conviction for inflicting corporal injury on spouse was “aggravated felony,” on which district court could rely to enhance sentence for illegal re-entry offense, though defendant was originally sentenced to probation with only a 365-day jail condition, and was not sentenced to two-year term of imprisonment until after he violated his probation), cert. denied, 122 S.Ct. 1115 (2002).
CRIME OF VIOLENCE – ASSAULT WITH DEADLY WEAPON Ocampo-Duran v. Ashcroft, 254 F.3d 1133 (9th Cir. June 28, 2001) (California conviction in 1995 of violating California Penal Code § 245(a)(1) by committing an assault with a deadly weapon, with a sentence to one year in prison, constituted a crime of violence and therefore an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) for immigration purposes).
CRIME OF VIOLENCE – INVOLUNTARY MANSLAUGHTER Park v. INS, 252 F.3d 1018 (9th Cir. June 5, 2001) (California conviction for violation of California Penal Code § 192(b), involuntary manslaughter, constitutes an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F)).
CRIME OF VIOLENCE – STALKING United States v. Jones, 231 F.3d 508, 519-520 (9th Cir. Sept. 15, 2000) (California conviction of stalking, under Penal Code § 646.9(a) – “any person who willfully, maliciously, and repeatedly follows or harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family, is guilty” of stalking – did not constitute a crime of violence because on its face the statute was not limited to physical injury).
CRIME OF VIOLENCE – ATTEMPTED ASSAULT WITH DEADLY WEAPON United States v. Ceron-Sanchez, 222 F.3d 1169 (9th Cir. July 26, 2000) (Arizona conviction for attempted aggravated assault with a deadly weapon or deadly instrument, in violation of Ariz. Rev. Stat. § § 13-1001 and 13-1204(A)(2) and (B), constitutes an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for purposes of illegal re-entry sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(A)).
Tenth Circuit
CRIME OF VIOLENCE – SOLICITATION United States v. Cornelio-Pena, 435 F.3d 1279 (10th Cir. Jan. 30, 2006) (Arizona conviction of solicitation to commit second-degree burglary of a dwelling, in violation of Ariz. Rev. Stat. § § 13-1002, 1507, is a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii), justifying a 16-level sentence enhancement for illegal re-entry, even though the Guidelines do not expressly list solicitation where they “include” “aiding and abetting, conspiring, and attempting, to commit such offenses.” U.S.S.G. § 2L1 .2 cmt. application n.5, because “include” is non-exhaustive and the examples expressly listed merely illustrative; since the mens rea and actus reus required for solicitation are similar to those required for aiding and abetting, conspiracy, and attempt, solicitation is sufficiently similar to the offenses listed in the application note to be encompassed by the note).
CRIME OF VIOLENCE – AGGRAVATED BATTERY AGAINST OFFICER United States v. Treto-Martinez, 421 F.3d 1156 (10th Cir. Sept. 7, 2005) (Kansas conviction of aggravated battery against a law enforcement officer, in violation of K.S.A. 21-3414(a)(1)(C), is a crime of violence for sentencing purposes; “[a]lthough not all physical contact performed in a rude, insulting or angry manner would rise to the level of physical force, we conclude that all intentional physical contact with a deadly weapon done in a rude, insulting or angry manner does constitute physical force under § 2L1.2(b)(1)(A)”).
CRIME OF VIOLENCE – ASSAULT United States v. Perez-Vargas, 414 F.3d 1282 (10th Cir. July 15, 2005) (Colorado conviction for third-degree assault, “knowingly or recklessly causes bodily injury to another person or with criminal negligence he causes bodily injury to another person by means of a deadly weapon,” in violation of C.R.S. § 18-3-204, where judicial decisions did not require use of force, did not constitute a “crime of violence,” as defined by U.S.S.G. § 2L1.2, for purposes of enhancement of a sentence for illegal re-entry, since the criminal statute has as an element causation of injury, rather than use of force: “In other words, Colorado’s statute looks to the consequences of the conduct, however applied, whereas the Guidelines look to the type of conduct that causes the injury.”).
CRIME OF VIOLENCE – ATTEMPTED RIOT United States v. Hernandez-Rodriguez, 388 F.3d 779 (10th Cir. Nov. 12, 2004) (Utah misdemeanor conviction for attempted riot, in violation of U.C.A. § 76-9-101, is a crime of violence for purposes of imposing an eight-level enhancement for previous conviction of an aggravated felony under U.S.S.G. § 2L1.2(b)(1)(C), because the offense meets the “crime of violence” definition in 18 U.S.C. § 16(a)).
CRIME OF VIOLENCE – DRIVING UNDER THE INFLUENCE United States v. Torres-Ruiz, 387 F.3d 1179 (10th Cir. Nov. 2, 2004) (California conviction for felony driving under the influence of alcohol did not constitute a “crime of violence” for purposes of enhancing a federal sentence for illegal re-entry).
CRIME OF VIOLENCE – FELONY TRESPASS United States v. Venegas-Onelas, 348 F.3d 1273 (10th Cir. Nov. 14, 2003) (Colorado conviction for first-degree criminal trespass of a dwelling, in violation of Colo.Rev.Stat. Ann. § 18-4-502, held to be a crime of violence aggravated felony within the meaning of INA § 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), 18 U.S.C. § 16(b), since the crime, “by its nature,” poses a substantial risk that the defendant will intentionally use destructive or violent force to enter or subdue the occupants in the commission of the offense, triggering an eight-level enhancement of illegal re-entry sentence under U.S.S.G. § 2L1.2(b)(1)(C)).
CRIME OF VIOLENCE – DRIVING UNDER THE INFLUENCE United States v. Lucio-Lucio, 347 F.3d 1202 (10th Cir. Oct. 28, 2003) (Texas felony conviction of driving while intoxicated is not an aggravated felony crime of violence as defined by 18 U.S.C. § 16(b)).
CRIME OF VIOLENCE – BURGLARY United States v. Soto-Ornelas, 312 F.3d 1167 (10th Cir. Dec. 3, 2002) (conviction of burglary of a dwelling constitutes a crime of violence, and thus an aggravated felony conviction under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for purposes of 16-level illegal re-entry sentence enhancement pursuant to U.S.S.G. § 2.L1.2, comment n. 1(B)(ii)(II) (2001)).
CRIME OF VIOLENCE – CRUELTY TO CHILD United States v. Saenz-Mendoza, 287 F.3d 1011 (10th Cir. Apr. 26, 2002) (Utah misdemeanor conviction of child abuse, cruelty toward a child, constituted an “aggravated felony” as defined in INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for purposes of sentence enhancement under U.S.S.G. § 2L1.2(b)(2), for illegal re-entry).
CRIME OF VIOLENCE – DRIVING UNDER THE INFLUENCE Tapia-Garcia v. INS, 237 F.3d 1216 (10th Cir. Jan. 19, 2001) (Idaho conviction of DUI drugs or alcohol offense, in violation of section 18-8004(5) of the Idaho Code, constituted a crime of violence and was therefore an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), triggering deportation).
CRIME OF VIOLENCE – SEX OFFENSE WITH CHILD United States v. Coronado-Cervantes, 154 F.3d 1242 (10th Cir. Sept. 18, 1998) (federal conviction of knowingly engaging in sexual contact with Native American juvenile under 12 years of age, in violation of 18 U.S.C. § § 1153, 2244(a)(1), 2245(3), was “crime of violence” and thus was predicate to federal sentence as career offender).
CRIME OF VIOLENCE – SEX OFFENSE OF CHILD United States v. Reyes-Castro, 13 F.3d 377 (10th Cir. Dec. 30, 1993) (Utah conviction of attempted sexual abuse of child, in violation of Utah Code Ann. § 76-5-404.1(1) (1990), was crime of violence under 18 U.S.C. § 16(b), and thus an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for purposes of deportation of noncitizen, even if actual physical force was not used, as crime involved nonconsensual act upon another person, which necessarily included substantial risk that physical force would be used).
CRIME OF VIOLENCE – BURGLARY United States v. Frias-Trujillo, 9 F.3d 875 (10th Cir. Nov. 9, 1993) (Texas burglary conviction was a “crime of violence” under 18 U.S.C. § 16, and thus an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for purposes of sentencing enhancement under § 2L1.2(b)(2) for illegal re-entry conviction).
Lower Courts of the Tenth Circuit
CRIME OF VIOLENCE – ASSAULT United States v. Holguin-Enriquez, 120 F.Supp.2d 969 (D.Kan. Oct. 12, 2000) (Washington conviction for criminal assault, with one-year suspended sentence, constituted an aggravated felony as crime of violence under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) for purpose of imposing 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A) to defendant’s base offense level for illegal re-entry).
CRIME OF VIOLENCE – POSSESSION OF SAWED-OFF SHOTGUN United States v. Villanueva-Gaxiola, 119 F.Supp.2d 1185 (D.Kan. Sept. 26, 2000) (California conviction for unlawful possession of short-barreled shotgun, in violation of California Penal Code § 12020, was not an aggravated felony as a crime of violence, under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), since it had no element of the use, attempt, or threat of violence under 18 U.S.C. § 16(a), and since it is a felony-misdemeanor statute, that “encompasses misdemeanor offenses, it cannot meet the definition of ‘crime of violence’ in 18 U.S.C. § 16(b),” for purposes of U.S.S.G. § 2L1.2(b)(1)(A) 16-level sentence enhancement for illegal re-entry, even though defendant in fact received 16-month state prison sentence in state case).
Eleventh Circuit
CRIME OF VIOLENCE – PERSUADE MINOR TO ENGAGE IN UNLAWFUL SEXUAL ACTIVITY United States v. Searcy, 418 F.3d 1193 (11th Cir. July 28, 2005) (federal conviction of using interstate commerce to persuade a minor to engage in unlawful sexual activity, in violation of 18 U.S.C. § 2422(b), constitutes a crime of violence for career offender classification purposes).
CRIME OF VIOLENCE – STATUTORY RAPE Chavarria-Mejia v. Ashcroft, 367 F.3d 1249 (11th Cir. Apr. 29, 2004) (per curiam) (Kentucky conviction of statutory rape, in violation of K.R.S. § 510.060, constituted an aggravated felony crime of violence within the meaning of U.S.S.G. § 2L1.2, for purposes of applying a 16-level enhancement to a sentence for illegal re-entry).
CRIME OF VIOLENCE – DRIVING UNDER THE INFLUENCE United States v. Rubio, 317 F.3d 1240 (11th Cir. Jan. 7, 2003) (driving under the influence with serious bodily injury is a crime of violence for purposes of the career offender provisions of the sentencing Guidelines).
CRIME OF VIOLENCE – MENACING United States v. Drummond, 240 F.3d 1333 (11th Cir. Feb. 8, 2001) (New York conviction for menacing, in violation of N.Y. Penal Law § 120.14, qualified as an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for enhancing illegal re-entry sentence pursuant to U.S.S.G. § 2L1.2(b)(1)(A), because it was a crime of violence for which the term of imprisonment was at least one year).
CRIME OF VIOLENCE – BURGLARY OF DWELLING United States v. Fuentes-Rivera, 323 F.3d 869 (11th Cir. Mar. 4, 2003) (California conviction for burglary of an inhabited dwelling under Penal Code § § 459, 460(a), was a “crime of violence,” for purposes of a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii), applicable to defendants convicted of illegal re-entry after having committed a crime of violence, notwithstanding fact that California law lacked physical force as an element of the offense).
CRIME OF VIOLENCE – FALSE IMPRISONMENT Brooks v. Ashcroft, 283 F.3d 1268, 1273 n.5 (11th Cir. Mar. 1, 2002) (Florida conviction of false imprisonment under Fla. Stat. § 787.02 is a crime of violence under 18 U.S.C. § 16, and thus an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for purposes of deportation).
CRIME OF VIOLENCE – DRIVING UNDER THE INFLUENCE WITH INJURY Le v. U.S. Atty. Gen., 196 F.3d 1352 (11th Cir. Dec. 3, 1999) (Florida conviction of driving under the influence with serious bodily injury, in violation of F.S.A. § 316.193(3), was a “crime of violence,” under 18 U.S.C. § 16(b), as required to be an “aggravated felony” under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for immigration purposes).
CRIME OF VIOLENCE – LEWD ASSAULT OF MINOR United States v. Rutherford, 175 F.3d 899 (11th Cir. May 13, 1999) (Florida conviction for lewd assault of minor, in violation of Florida Statutes § 800.04, was a crime of violence for purposes of sentencing defendant as a career offender under U.S.S.G. § 4B1.1).
CRIME OF VIOLENCE – ATTEMPTED LEWD ASSAULT Ramsey v. INS, 55 F.3d 580 (11th Cir. June 21, 1995) (per curiam) (Florida conviction of attempted lewd assault, in violation of F.S.A. § § 777.04(1), 800.04(1), was crime of violence under 18 U.S.C. § 16, and therefore aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for purposes of deportation).
BIA
CRIME OF VIOLENCE – UNAUTHORIZED USE OF MOTOR VEHICLE Matter of Brieva, 23 I. & N. Dec. 766 (BIA June 7, 2005) (Texas conviction of unauthorized use of a motor vehicle, in violation of Texas Penal Code § 31.07(a), is a crime of violence under 18 U.S.C. § 16(b), and therefore an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F)).
CRIME OF VIOLENCE – STALKING Matter of Malta, 23 I. & N. Dec. 656 (BIA Mar. 11, 2004) (California conviction of stalking based on harassing conduct in violation of Penal Code § 646.9(b), which proscribes stalking when there is a temporary restraining order, injunction, or any other court order in effect prohibiting the stalking behavior, is a crime of violence under 18 U.S.C. § 16(b), and is therefore an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for immigration purposes).
CRIME OF VIOLENCE – MANSLAUGHTER, ABORTION Matter of Vargas-Sarmiento, 23 I. & N. Dec. 651, 654 (BIA Feb. 5, 2004) (New York conviction of first-degree manslaughter, abortion, in violation of Penal Law § 125.20(3), does not constitute a crime of violence and is therefore not an aggravated felony for immigration purposes, under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F)).
CRIME OF VIOLENCE – MANSLAUGHTER Matter of Vargas-Sarmiento, 23 I. & N. Dec. 651 (BIA Feb. 5, 2004) (New York conviction of first-degree manslaughter, in violation of Penal Law § 125.20(1) and (2), constitutes a crime of violence and therefore an aggravated felony for immigration purposes, under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), because acting with intent to cause serious physical injury or death to a person “by its nature involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense,” under 18 U.S.C. § 16(b)); see Chery v. Ashcroft, 347 F.3d 404 (2d Cir. Oct. 17, 2003); Dickson v. Ashcroft, 346 F.3d 44 (2d Cir. Sept. 9, 2003); Chrzanoski v. Ashcroft, 327 F.3d 188 (2d Cir. Apr. 22, 2003); but see Jobson v. Ashcroft, 326 F.3d 367 (2d Cir. Apr. 22, 2003).
CRIME OF VIOLENCE – ASSAULT Matter of Martin, 23 I. & N. Dec. 491 (BIA Sept. 26, 2002) (Connecticut conviction of third-degree assault, in violation of section 53a-61(a)(1) of the Connecticut General Statutes, which involves the intentional infliction of physical injury upon another, is a crime of violence under 18 U.S.C. § 16(a), for deportation purposes).
CRIME OF VIOLENCE – SEXUAL ABUSE OF MINOR Matter of Small, 23 I. & N. Dec. 448 (BIA June 4, 2002) (en banc) (New York misdemeanor conviction of sexual abuse of a minor, in violation of N.Y. Penal Law § 130.60(2), with a sentence of one year in custody, constitutes a crime of violence aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F)).
CRIME OF VIOLENCE – MANSLAUGHTER Matter of Jean, 23 I. & N. Dec. 373 (AG May 2, 2002) (New York conviction of second-degree manslaughter, under N.Y. Penal Law § 125.15(1), may constitute a “crime of violence” and therefore an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F)).
CRIME OF VIOLENCE – DRIVING UNDER THE INFLUENCE Matter of Ramos, 23 I. & N. Dec. 336 (BIA Apr. 4, 2002) (Massachusetts conviction of operating a motor vehicle while under the influence of intoxicating liquor, in violation of Massachusetts General Laws, chapter 90, § 24(1)(a)(1), is not a felony that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense and is therefore not a crime of violence, so it cannot be an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F)), overruling Matter of Puente-Salazar, 22 I. & N. Dec. 1006 (BIA Sept. 29, 1999), and Matter of Magallanes, 22 I. & N. Dec. 1 (BIA Mar. 19, 1998).
CRIME OF VIOLENCE – DRIVING UNDER THE INFLUENCE Matter of Olivares-Martinez, 23 I. & N. Dec. 148 (BIA July 3, 2001) (under United States v. Chapa-Garza, 243 F.3d 921 (5th Cir. Mar. 1, 2001) and United States v. Hernandez-Avalos, 251 F.3d 505 (5th Cir. May 11, 2001), a Texas conviction for felony DWI is not a crime of violence under 18 U.S.C. § 16(b) (1994), and is therefore not an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for purposes of removability in cases arising in the Fifth Circuit, so Matter of Puente-Salazar, 22 I. & N. Dec. 1006 (BIA Sept. 29, 1999), will not be applied there).
CRIME OF VIOLENCE – DRIVING UNDER THE INFLUENCE Matter of Puente-Salazar, 22 I. & N. Dec. 1006 (BIA Sept. 29, 1999) (Texas conviction of driving while intoxicated under Texas Penal Code § 49.04, which is a felony as a result of a sentence enhancement statute, is a conviction for a crime of violence and therefore an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F)), overruled by Matter of Ramos, 23 I. & N. Dec. 336 (BIA Apr. 4, 2002).
CRIME OF VIOLENCE – CRIMINAL CONTEMPT Matter of Aldabesheh, 22 I. & N. Dec. 983 (BIA Aug. 30, 1999) (en banc) (New York conviction for criminal contempt in the first degree, in violation of section 215.51(b)(i) of the New York Penal Law, with a sentence to imprisonment of at least one year, is a conviction for a crime of violence as defined under 18 U.S.C. § 16(b), thus rendering it an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F)).
CRIME OF VIOLENCE – NEGLIGENT CHILD ABUSE Matter of Sweetser, 22 I. & N. Dec. 709 (BIA May 19, 1999) (Colorado conviction of criminally negligent child abuse under sections 18-6-401(1) and (7) of the Colorado Revised Statutes, where negligence in leaving stepson alone in a bathtub resulted in the child’s death, was not a crime of violence under 18 U.S.C. § 16(b), because there was no “substantial risk that physical force” would be used in the commission of the crime, and the conviction was therefore not an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F)).
CRIME OF VIOLENCE – ROBBERY Matter of SS, 22 I. & N. Dec. 458 (BIA Jan. 21, 1999) (Washington conviction of first-degree robbery of an occupied home while armed with a handgun, in violation of Wash. Rev. Code § 9A.56.200(1), with a sentence to 55 months imprisonment, is an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for purposes of constituting a “particularly serious crime” rendering the noncitizen ineligible for withholding of removal under INA § 241(b)(3)(B)(ii)), overruled on other grounds by Matter of YL, 23 I. & N. Dec. 270 (BIA Mar. 5, 2002).
CRIME OF VIOLENCE – ARSON Matter of Palacios-Pinera, 22 I. & N. Dec. 434 (BIA Dec. 18, 1998) (en banc) (Alaska conviction of arson in the first degree under section 11.46.400 of the Alaska Statutes, with a seven-year sentence, was a “crime of violence” and therefore an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F)).
CRIME OF VIOLENCE – DRIVING UNDER THE INFLUENCE Matter of Magallanes-Garcia, 22 I. & N. Dec. 1 (BIA Mar. 19, 1998) (conviction of aggravated driving while under the influence, with a two and a half year sentence, was a “crime of violence” and therefore an aggravated felony within the meaning of INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), triggering deportation under 8 U.S.C. § 1251(a)(2)(A)(iii)), overruled by Matter of Ramos, 23 I. & N. Dec. 336 (BIA Apr. 4, 2002).
CRIME OF VIOLENCE – ROBBERY Matter of LSJ, 21 I. & N. Dec. 973 (BIA July 29, 1997) (Florida conviction of robbery using a handgun with a sentence of two and a half years in prison constitutes an aggravated felony, within the meaning of INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), as a crime of violence for which the sentence is at least one year).
CRIME OF VIOLENCE – TERRORISM Matter of SS, 21 I. & N. Dec. 900 (BIA May 6, 1997) (Iowa conviction for terrorism under section 708.6 of the Iowa Code is a felony involving a substantial risk that physical force may be used against the victim, and therefore constitutes a “crime of violence” as defined in 18 U.S.C. § 16(b), and therefore an aggravated felony within the meaning of INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F)).
CRIME OF VIOLENCE – ATTEMPTED MANSLAUGHTER Matter of Yeung, 21 I. & N. Dec. 610 (BIA Nov. 27, 1996) (Florida conviction of attempted manslaughter with a knife constituted aggravated felony as crime of violence with sentence imposed of one year or more under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F)).
CRIME OF VIOLENCE – RAPE WITHOUT FORCE Matter of B, 21 I. & N. Dec. 287 (BIA Mar. 28, 1996) (Maryland conviction for second-degree statutory (not forcible) rape under Article 27, section 463(a)(3) of the Annotated Code of Maryland, with a 10-year sentence, constitutes a “crime of violence” under 18 U.S.C. § 16(b), and, hence, an “aggravated felony” under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), since whenever an older person attempts to sexually touch a child under the age of consent, there is invariably a substantial risk that physical force will be wielded to ensure the child’s compliance), distinguished by Xiong v. INS, 173 F.3d 601 (7th Cir. Apr. 12, 1999).
CRIME OF VIOLENCE – INVOLUNTARY MANSLAUGHTER Matter of Alcantar, 20 I. & N. Dec. 801 (BIA May 25, 1994) (Illinois conviction for involuntary manslaughter under Ill. Rev. Stat. ch. 38, para. 9-3(a), with a sentence to 10 years in prison, constituted a “crime of violence” under 18 U.S.C. § 16(b), and an “aggravated felony” as defined in INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for immigration purposes).
CRIME OF VIOLENCE – AGGRAVATED BATTERY Matter of B, 20 I. & N. Dec. 427 (BIA Nov. 19, 1991) (conviction of aggravated battery by injuring a person with a shot from a firearm constitutes a crime of violence and is therefore an aggravated felony since a sentence of five years was imposed).
§ A.15
Third Circuit
DECEIT – MISAPPLICATION OF BANK FUNDS Valansi v. Ashcroft, 203 F.3d 203 (3d Cir. Feb. 1, 2000) (federal conviction of misapplication of bank funds, in violation of 18 U.S.C. § 656, is not categorically an offense involving “deceit” for purposes of INA § 101(a)(43)(M)(i) (fraud or deceit)).
§ A.16 Destructive Device Trafficking
§ A.16
[No Cases Yet: Check the on-line version of this Appendix for updates at: http://www.CriminalAndImmigrationLaw.com]
§ A.17
Second Circuit
Lower Courts of the Second Circuit
DOCUMENT FRAUD – FALSELY MAKING DOCUMENT Pena-Rosario v. Reno, 83 F.Supp.2d 349, 366 n.12 (E.D.N.Y. Feb. 8, 2000) (federal conviction for falsely making “document prescribed by statute or regulation as evidence of authorized stay or employment in the United States,” in violation of 18 U.S.C. § 1546(a), constituted an “aggravated felony” within meaning of INA § 101(a)(43)(P), 8 U.S.C. § 1101(a)(43)(P), for purposes of deportation).
§ A.18
First Circuit
DRUG TRAFFICKING – POSSESSION United States v. Clase-Espinal, 115 F.3d 1054 (1st Cir. June 19, 1997), cert. denied, 522 U.S. 957 (1997) (Texas felony conviction for possession of cocaine, under Tex. Health & Safety Code § 481.115(f) (1996), was an “aggravated felony” under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B) for illegal re-entry sentence enhancement purposes under U.S.S.G. § 2L1.2(b)(2)).
DRUG TRAFFICKING – SECOND POSSESSION United States v. Cuevas, 75 F.3d 778 (1st Cir. Feb. 7, 1996) (Rhode Island second conviction of drug possession constituted an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B) for illegal re-entry sentence enhancement purposes under U.S.S.G. § 2L1.2(b)(2)).
DRUG TRAFFICKING – POSSESSION United States v. Restrepo-Aguilar, 74 F.3d 361 (1st Cir. Jan. 30, 1996) (Rhode Island conviction of felony drug possession offense that would only be a misdemeanor under federal law but was felony under laws of convicting state constituted an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for illegal re-entry sentence enhancement purposes under U.S.S.G. § 2L1.2(b)(2)).
DRUG TRAFFICKING – POSSESSION United States v. Smith, 36 F.3d 128 (1st Cir. Sept. 7, 1994), cert. denied, 513 U.S. 1008 (1994) (Rhode Island conviction of felony drug possession offense that would only be a misdemeanor under federal law but was felony under laws of convicting state constituted an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for illegal re-entry sentence enhancement purposes under U.S.S.G. § 2L1.2(b)(2)).
DRUG TRAFFICKING – POSSESSION FOR SALE United States v. Rodriguez, 26 F.3d 4 (1st Cir. June 17, 1994) (Massachusetts conviction for possession with intent to distribute illegal drug was a “trafficking” crime and therefore an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for illegal re-entry sentence enhancement purposes under U.S.S.G. § 2L1.2(b)(2)).
DRUG TRAFFICKING – SECOND POSSESSION United States v. Forbes, 16 F.3d 1294 (1st Cir. Feb. 24, 1994) (New York second conviction for criminal possession of controlled substance under N.Y. Penal Law § 220.09 was punishable under Controlled Substances Act as a felony and, therefore, defendant’s conviction qualified as an aggravated felony justifying enhanced sentence under U.S.S.G. § 2L1.2 for illegal re-entry purposes).
DRUG TRAFFICKING – THIRD POSSESSION Amaral v. INS, 977 F.2d 33 (1st Cir. Oct. 13, 1992) (Rhode Island conviction of possession of a controlled substance, in violation of R.I.Gen.Laws § 21-28-4.01(C)(1)(a), was a felony under state law and would have been a felony under federal law, because of two prior drug convictions, and therefore constituted an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for illegal re-entry sentence enhancement purposes under U.S.S.G. § 2L1.2(b)(2)).
Lower Courts of the First Circuit
DRUG TRAFFICKING – DISTRIBUTION Fernandez-Santander v. Thornburgh, 751 F.Supp. 1007 (D.Me. Nov. 9, 1990) (Maine conviction for distribution of controlled substances, in violation of 17-A M.R.S.A. § 1103, qualified as a “drug trafficking crime” that in turn qualified as an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), that justified denial of immigration bond pending deportation, since offense would have been a felony if prosecuted under federal law), overruled, 930 F.2d 906 (1st Cir. Mar. 14, 1991) (Table).
Second Circuit
DRUG TRAFFICKING Durant v. ICE, 393 F.3d 113 (2d Cir. Dec. 16, 2004) (second conviction for possession of cocaine is an aggravated felony drug offense, since a second possession conviction is a felony under federal law).
DRUG TRAFFICKING – SALE OF HALLUCINOGEN/NARCOTIC Gousse v. Ashcroft, 339 F.3d 91 (2d Cir. Aug. 6, 2003) (Connecticut conviction under Conn. Gen. Stat. § 21a-277(a) constitutes conviction for “illicit trafficking in a controlled substance” under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B)).
DRUG TRAFFICKING – POSSESSION United States v. Simpson, 319 F.3d 81 (2d Cir. Dec. 24, 2002) (New York convictions for misdemeanor possession of a controlled substance, under New York Penal Law § § 221.10, 221.15, 221.40 (2000), constituted aggravated felonies warranting 8-level enhancements under U.S.S.G. § 2L1.2(b) of defendant’s sentence for illegal re-entry).
DRUG TRAFFICKING – POSSESSION United States v. Pornes-Garcia, 171 F.3d 142 (2d Cir. Mar. 26, 1999), cert. denied, 528 U.S. 880, 120 S.Ct. 191 (1999) (New York conviction of felony attempted criminal possession of cocaine in the first degree, in violation of N.Y. Penal Law § 110.05(1), constituted an “aggravated felony “ under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), justifying 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A) to illegal re-entry sentence, even though conviction would have been only a misdemeanor if prosecuted in federal court).
DRUG TRAFFICKING – SALE United States v. Paredes-Batista, 140 F.3d 367 (2d Cir. Mar. 18, 1998), cert. denied, 525 U.S. 859, 119 S.Ct. 143 (Oct. 5, 1998) (New York conviction under N.Y. Penal Law § 220.31, which provides that “[a] person is guilty of criminal sale of a controlled substance in the fifth degree when he knowingly and unlawfully sells a controlled substance,” constituted an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), triggering sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(A) for illegal re-entry conviction).
DRUG TRAFFICKING – POSSESSION Aguirre v. INS, 79 F.3d 315 (2d Cir. Mar. 22, 1996) (New York conviction of possession of a controlled substance in the second degree, in violation of N.Y.Pen.L. § 220.18, that was felony under state law but not federal law, did not qualify as an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for purposes of deportation), overruling Jenkins v. INS, 32 F.3d 11 (2d Cir. 1994).
DRUG TRAFFICKING – SALE United States v. Polanco, 29 F.3d 35 (2d Cir. July 12, 1994) (New York conviction for sale of five grams of cocaine, a controlled substance, in violation of N.Y.Penal Law § 220.34, a Class C felony, constituted an “aggravated felony” under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for purposes of illegal re-entry sentencing enhancement under U.S.S.G. § 2L1.2(b)(1)(A)).
DRUG TRAFFICKING – POSSESSION Jenkins v. INS, 32 F.3d 11 (2d Cir. July 12, 1994) (New York conviction that was felony under state law, but misdemeanor under federal law, qualified as conviction of “aggravated felony” under statute regarding automatic stay of deportation), overruled by Aguirre v. INS, 79 F.3d 315 (2d Cir. Mar. 22, 1996).
Lower Courts of the Second Circuit
DRUG TRAFFICKING – MISDEMEANOR SALE OF MARIJUANA Copeland v. Ashcroft, 246 F.Supp.2d 183 (W.D.N.Y. Feb. 10, 2003) (New York misdemeanor conviction of Criminal Sale of Marijuana in the Fourth Degree, in violation of New York Penal Law § 221.40, constitutes an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), under the common-sense definition of illicit trafficking, since the defendant was convicted of acting as a businessman or merchant in connection with the trading, selling or dealing in controlled substances), ruling that the BIA decision in Matter of Elgendi, 23 I. & N. Dec. 515 (BIA Oct. 31, 2002) is not in accord with the law of the Second Circuit, as expressed in United States v. Simpson, 319 F.3d 81 (2d Cir. 2002)).
DRUG TRAFFICKING – SALE Manzueta v. Ashcroft, 206 F.Supp.2d 386 (W.D.N.Y. Mar. 29, 2002) (New York conviction for Criminal Sale of a Controlled Substance in the Third Degree, in violation of New York Penal Law § 220.39, constituted illicit trafficking in a controlled substance, an “aggravated felony” under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B)).
DRUG TRAFFICKING – SALE Romero v. Reno, 198 F.Supp.2d 276 (W.D.N.Y. Sept. 25, 2001) (New York conviction for criminal sale of controlled substance in the third degree, in violation of N.Y. Penal Law § 220.43, constituted conviction for aggravated felony, under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B)).
DRUG TRAFFICKING – POSSESSION FOR SALE United States v. Gomez-Ortiz, 62 F.Supp.2d 508 (D.R.I. Aug. 4, 1999) (Massachusetts misdemeanor conviction for first-offense possession with intent to distribute, in violation of M.G.L. 94C, § 32C(a) and M.G.L. 274 § 1, did not constitute “felony,” and was therefore not “aggravated felony,” under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for purposes of U.S.S.G. § 2L1.2(b)(1)(A) 16-level sentence enhancement for illegal re-entry, even though defendant’s offense would have been classified as felony if it had been prosecuted under federal law, since a state misdemeanor can never be a felony under the federal definition).
DRUG TRAFFICKING – SALE United States v. Graham, 927 F.Supp. 619 (W.D.N.Y. June 18, 1996) (New York misdemeanor conviction for criminal sale of marijuana constituted aggravated felony under former INA § 101(a)(43)(C), 8 U.S.C. § 1101(a)(43)(C) (now INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B)), even though prior conviction was misdemeanor under New York state law).
DRUG TRAFFICKING – ATTEMPTED SALE United States v. Jimenez, 921 F.Supp. 1054 (S.D.N.Y. Nov. 13, 1995), aff’d, 131 F.3d 132 (2d Cir. Dec. 2, 1997) (Table) (New York convictions of attempted criminal sale of cocaine in the third degree constituted “illicit trafficking in a controlled substance,” and were therefore aggravated felonies under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), disqualifying the noncitizen from receiving voluntary departure).
DRUG TRAFFICKING – SALE Mejia-Ruiz v. INS, 871 F.Supp. 159 (E.D.N.Y. Dec. 16, 1994) (New York felony conviction for criminal sale of cocaine in the fifth degree was an “aggravated felony” under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for purposes of eligibility to be admitted into United States on parole where conviction would have been punishable as felony if prosecuted under federal law).
DRUG TRAFFICKING – DISTRIBUTION Kellman v. District Director, U.S. INS, 750 F.Supp. 625 (S.D.N.Y. Nov. 6, 1990) (New York conviction for distribution of a controlled substance, in violation of New York Penal Law § 220.39, constituted aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for removal purposes).
DRUG TRAFFICKING – ATTEMPTED SALE Leader v. Blackman, 744 F.Supp. 500 (S.D.N.Y. Aug. 8, 1990) (New York conviction for attempted criminal sale of controlled substances in the third degree, in violation of N.Y. Penal Law § 220.39, constitutes an “aggravated felony,” under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), and triggers mandatory detention).
Third Circuit
DRUG TRAFFICKING – POSSESSION OF MARIJUANA WITH INTENT TO DISTRIBUTE Wilson v. Ashcroft, 350 F.3d 377 (3d Cir. Nov. 26, 2003) (New Jersey conviction for possession of marijuana with intent to distribute could not be determined to be aggravated felony since court could not determine from state court judgment whether crime could be categorized as a felony under state law involving “drug trafficking”).
DRUG TRAFFICKING – POSSESSION FOR DISTRIBUTION NOT SALE Gerbier v. Holmes, 280 F.3d 297 (3d Cir. Feb. 8, 2002) (Delaware conviction of “trafficking in cocaine,” in violation of Del.Code Ann. tit. 16, § 4753A(2)(a), that was based on possession of between 5 and 50 grams of cocaine, did not constitute an “aggravated felony “ under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for immigration purposes, since offense did not contain a trading or dealing element and was not punishable as a felony under federal law).
DRUG TRAFFICKING – SECOND POSSESSION Steele v. Blackman, 236 F.3d 130 (3d Cir. Jan. 2, 2001) (New York second misdemeanor conviction for distribution of 30 grams or less of marijuana without remuneration was not for a hypothetical offense punishable as a felony under the federal Controlled Substances Act and therefore was not an “aggravated felony” under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B) for immigration purposes).
Fourth Circuit
DRUG TRAFFICKING – SIMPLE POSSESSION United States v. Amaya-Portillo, 423 F.3d 427 (4th Cir. Sept. 6, 2005) (Maryland conviction of misdemeanor simple possession of cocaine, in violation of Md.Code, Art. 27, 287(e), was not an aggravated felony for sentencing purposes, as the state offense is not a felony, even though the offense was punishable by up to four years imprisonment).
DRUG TRAFFICKING – SIMPLE POSSESSION United States v. Wilson, 316 F.3d 506 (4th Cir. Jan. 16, 2003) (Virginia conviction of simple possession of an unknown quantity of cocaine, a controlled substance, a felony under state law, Va.Code § 18.2-250(a), constituted an aggravated felony, for purposes of enhancing a sentence for illegal re-entry pursuant to U.S.S.G. § 2L1.2, even though it would only have been chargeable as a misdemeanor in federal court).
Fifth Circuit
DRUG TRAFFICKING – POSSESSION OF LISTED CHEMICAL WITH INTENT TO MANUFACTURE A CONTROLLED SUBSTANCE United States v. Arizaga-Acosta, 436 F.3d 506 (5th Cir. Jan. 12, 2006) (federal conviction for conspiracy to possess a listed chemical (ephedrine) with intent to manufacture methamphetamine, under 21 U.S.C. § 841(d)(1), held not to qualify as a “drug-trafficking offense” under U.S.S.G. § 2L1.2, for purposes of imposing a sentence enhancement to an illegal re-entry sentence, because the U.S. Sentencing Commission specifically included this offense under U.S.S.G. § 4B1.2 cmt. n.1, but declined to do so under § 2L1.2).
DRUG TRAFFICKING – PURCHASE FOR SALE United States v. Palacios-Quinonez, 431 F.3d 471 (5th Cir. Nov. 29, 2005) (California conviction of “possession” of a controlled substance for purposes of U.S.S.G. § 2L1.2(b)(1)(A)(i), includes constructive possession; purchase for sale of a controlled substance, in violation of California Penal Code § 11351 is an aggravated felony drug trafficking offense for sentencing purposes).
DRUG TRAFFICKING Salazar-Regino v. Trominski, 415 F.3d 436 (5th Cir. June 30, 2005) (Texas deferred adjudication following guilty plea to felony possession of marijuana constituted a conviction for removal purposes under INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A), even though it did not constitute grounds for removal under the hypothetical federal felony test dictated by the BIA at the time the plea of guilty was entered, because it would only have constituted a misdemeanor if prosecuted in federal court).
DRUG TRAFFICKING United States v. Garza-Lopez, 410 F.3d 268 (5th Cir. May 19, 2005) (California conviction for “[t]ransport/sell methamphetamine” under Cal. Health & Safety Code § 11379(a) did not constitute conviction of drug trafficking with sentence imposed in excess of 13 months for purposes of triggering a sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i) (2003), for illegal re-entry after deportation, because the statute of conviction is overbroad and prohibits some conduct that does not fall within the Guidelines enhancement definition of drug trafficking offense, and the record of conviction does not narrow the offense of conviction to conduct falling within the enhancement).
DRUG TRAFFICKING – SOLICITATION TO TRANSPORT FOR SALE Peters v. Ashcroft, 383 F.3d 302 (5th Cir. Aug. 27, 2004) (Arizona conviction of felony solicitation to transport marijuana for sale, in violation of A.R.S. § § 13-1002, subd. B, par. 2, 13-3405, subd. B, par. 11, is a controlled substance conviction for deportation purposes), following Matter of Beltran, 20 I. & N. Dec. 521 (BIA May 28, 1992).
DRUG TRAFFICKING – TRAVEL ACT CONVICTION United States v. Rodriguez-Duberney, 326 F.3d 613 (5th Cir. Mar. 25, 2003) (federal: since court’s consideration of whether a prior conviction constitutes a drug trafficking offense under U.S.S.G. § 2L1.2(b)(1)(A)(i) does not require a determination whether the offense “by its nature” fits a certain definition, contrary to the question whether a conviction constitutes a “crime of violence” under 18 U.S.C. § 16, the court will not employ a categorical analysis that ignores the facts of the case; a conviction of interstate transportation in aid of racketeering with the intent to promote cocaine and marijuana trafficking, as disclosed by the language of the charge, was therefore held to be a drug trafficking conviction for this purpose).
DRUG TRAFFICKING – POSSESSION United States v. Caicedo-Cuero, 312 F.3d 697 (5th Cir. Nov. 14, 2002) (Texas conviction of possession of marijuana, in violation of Health & Safety Code § 481.121(b)(3), which was a “state jail felony” with a maximum of two years, constituted an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for purposes of enhancing a sentence for illegal re-entry under U.S.S.G. § 2L1.2(b)(1)(C), even though state law precluded a custodial sentence for the defendant as a first-time offender, since he could be sentenced to two years on a violation of community supervision).
DRUG TRAFFICKING – POSSESSION United States v. Rivera, 265 F.3d 310 (5th Cir. Sept. 7, 2001), cert. denied, 122 S.Ct. 1105 (2002) (Texas felony conviction for possession of controlled substance qualified as “aggravated felony” under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for purpose of enhancing illegal re-entry sentence).
DRUG TRAFFICKING – POSSESSION United States v. Hernandez-Avalos, 251 F.3d 505 (5th Cir. May 11, 2001), cert. denied, 122 S.Ct. 305 (2001) (Colorado felony heroin possession conviction, in violation of Colo.Rev.Stat. Ann. § § 18-18-203, 18-18-405, 18-1-105, was a “drug trafficking crime” under 18 U.S.C. § 924(c), and, therefore, an “aggravated felony” within the meaning of INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for purposes of enhancing sentence for illegal re-entry).
DRUG TRAFFICKING – POSSESSION United States v. Hinojosa-Lopez, 130 F.3d 691 (5th Cir. Dec. 4, 1997) (Texas felony conviction for possession of marijuana, in violation of Texas Health & Safety Code § 481.121, was “aggravated felony” as defined by INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B) requiring 16-level increase under U.S.S.G. § 2L1.2(b)(2) for illegal re-entry conviction), superseded by statute as stated in United States v. Sanchez, 179 F.Supp.2d 689 (W.D.Tex. Dec. 26, 2001).
DRUG TRAFFICKING – POSSESSION FOR DISTRIBUTION United States v. Trevino-Martinez, 86 F.3d 65 (5th Cir. June 7, 1996), cert. denied, 520 U.S. 1105, 117 S.Ct. 1109 (1997) (Texas conviction of possession of marijuana with intent to distribute constitutes an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B) for deportation purposes).
DRUG TRAFFICKING – CONSPIRACY TO POSSESS FOR SALE Martins v. INS, 972 F.2d 657 (5th Cir. Sept. 23, 1992) (federal conviction for conspiracy to possess heroin with intent to distribute was “drug trafficking crime,” and was thus an “aggravated felony “ under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B)).
Lower Courts of the Fifth Circuit
DRUG TRAFFICKING – POSSESSION FOR PERSONAL USE United States v. Sanchez, 179 F.Supp.2d 689 (W.D.Tex. Dec. 26, 2001) (Texas felony conviction for possession of cocaine for personal use was not an aggravated felony under U.S.S.G. § 2L1.2(b)(1)(C) (effective Nov. 1, 2001), requiring eight-level increase in offense level of illegal re-entry conviction, since the new Guidelines in U.S.S.G. § 2L1.2, comment (n.1(B)(iii)), explicitly define “drug trafficking offense” to exclude convictions for simple possession, felonies or not), vacated by United States v. Balderas-Sanchez, 57 Fed.Appx. 212 (5th Cir. Jan. 8, 2003).
Sixth Circuit
DRUG TRAFFICKING – POSSESSION OF HEROIN Liao v. Rabbett, 398 F.3d 389 (6th Cir. Feb. 7, 2005) (Ohio conviction of possession of heroin, in violation of Ohio Rev. Code § 2925.11, a “fifth degree felony” under Ohio law, which is punishable by a maximum term of 12 months’ imprisonment, did not constitute an aggravated felony drug trafficking offense, under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B)).
DRUG TRAFFICKING – IMPORTATION OF COCAINE United States v. Murillo-Iniguez, 318 F.3d 709 (6th Cir. Feb. 5, 2003) (federal conviction of importation of cocaine, in violation of 21 U.S.C. § 952(a)(1), constituted an aggravated felony for purposes of imposing a sentence enhancement for illegal re-entry).
DRUG TRAFFICKING – POSSESSION FOR SALE Pulice v. INS, 218 F.3d 505 (6th Cir. June 13, 2000) (federal conviction of possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1) constituted aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B) for immigration purposes).
DRUG TRAFFICKING – DELIVERY Nakhleh v. INS, 38 F.3d 829 (6th Cir. Oct. 27, 1994) (Michigan conviction of illegal delivery of cocaine, in violation of Mich.Comp. Laws 333.7401, constitutes an aggravated felony for immigration purposes under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B)).
Seventh Circuit
DRUG TRAFFICKING – DISTRIBUTION OF MARIJUANA Ali v. Ashcroft, 395 F.3d 722 (7th Cir. Jan. 11, 2005) (Illinois felony conviction of possession with intent to distribute THC, in violation of Wis. Stat. § 961.41(1m)(h)(1), held an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B); argument that THC falls within definition of marijuana and therefore gratuitous distribution of small amount of marijuana does not constitute a felony under federal law not addressed).
DRUG TRAFFICKING – POSSESSION FOR SALE Jideonwo v. INS, 224 F.3d 692 (7th Cir. Aug. 23, 2000) (federal conviction of conspiracy to possess with intent to distribute heroin is an “aggravated felony” under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for purposes of disqualifying a noncitizen from eligibility for a discretionary waiver of deportation).
DRUG TRAFFICKING – CONSPIRACY TO DISTRIBUTE Turkhan v. INS, 123 F.3d 487, 488 (7th Cir. Aug. 12, 1997) (federal conviction of conspiracy to distribute cocaine in violation of 21 U.S.C. § 846 constituted aggravated felony conviction under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B) for deportation purposes), overruled on other grounds by LaGuerre v. Reno, 164 F.3d 1035 (7th Cir. Dec. 22, 1998).
DRUG TRAFFICKING – POSSESSION FOR SALE United States v. Samaniego-Rodriguez, 32 F.3d 242, 243 n.3 (7th Cir. Aug. 4, 1994), cert. denied, 514 U.S. 1052 (Apr. 3, 1995) (Illinois conviction of possession of cocaine with intent to deliver is an aggravated felony, under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for purposes of enhancing sentence for illegal re-entry).
Lower Courts of the Seventh Circuit
DRUG TRAFFICKING – POSSESSION FOR SALE United States v. Galvan-Zermeno, 52 F.Supp.2d 922 (C.D.Ill. May 21, 1999) (Illinois felony conviction for possession of a controlled substance with intent to deliver was an “aggravated felony” under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for purposes of U.S.S.G. § 2L1.2(b)(1)(A) 16-level sentence enhancement for illegal re-entry, since state felony is considered a felony under 18 U.S.C. § 924(c)).
Eighth Circuit
DRUG TRAFFICKING – POSSESSION Tostado v. Carlson, 437 F.3d 706 (8th Cir. Feb. 3, 2006) (Illinois felony conviction for unlawful possession of cocaine and unlawful possession of cannabis held a drug trafficking aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for immigration purposes, even though the offense would have been a misdemeanor if prosecuted in federal court, because “a drug trafficking crime is an offense which would be punishable under 21 U.S.C. § § 801 et seq., and which would qualify as a felony under either state or federal law.”), citing Lopez v. Gonzales, 417 F.3d 934, 936 (8th Cir. 2005), and quoting United States v. Briones-Mata, 116 F.3d 308, 309 (8th Cir. 1997).
DRUG TRAFFICKING – SIMPLE POSSESSION Lopez v. Gonzales, 417 F.3d 934 (8th Cir. Aug. 9, 2005) (South Dakota felony offense of simple possession of marijuana is an aggravated felony for immigration purposes, even though the offense would be a misdemeanor under federal law).
DRUG TRAFFICKING – AIDING POSSESSION FOR SALE United States v. Baca-Valenzuela, 118 F.3d 1223 (8th Cir. July 7, 1997) (federal conviction of aiding and abetting possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, constituted aggravated felony, under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for purposes of enhancing illegal re-entry sentence under U.S.S.G. § 2L1.2(b)(2), despite the fact the conviction was for aiding and abetting).
DRUG TRAFFICKING – BUYING MARIJUANA United States v. Briones-Mata, 116 F.3d 308 (8th Cir. May 12, 1997) (Florida felony conviction for buying marijuana constituted aggravated felony, under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for purposes of enhancing illegal re-entry sentence under U.S.S.G. § 2L1.2(b)(2), despite the fact the conviction would have been a misdemeanor under federal law).
DRUG TRAFFICKING – POSSESSION United States v. Haggerty, 85 F.3d 403 (8th Cir. June 10, 1996) (California conviction of possession of methamphetamine, in violation of California Health & Safety Code § 11377(a), constituted aggravated felony, under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for purposes of enhancing illegal re-entry sentence under U.S.S.G. § 2L1.2(b)(2), since it was felony under California law punishable by more than one year in custody, and California court did not declare it to be a misdemeanor).
DRUG TRAFFICKING – DELIVERY United States v. Martinez-Amaya, 67 F.3d 678, 682 (8th Cir. Oct. 10, 1995) (Oregon conviction for delivery of cocaine constituted aggravated felony, under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for purposes of disqualifying noncitizen from eligibility for relief from deportation, so as to prevent him from showing prejudice from alleged error in deportation hearing, as predicate for conviction of illegal re-entry after deportation).
Ninth Circuit
DRUG TRAFFICKING – POSSESSION FOR SALE OR PURCHASE OF COCAINE BASE FOR SALE United States v. Morales-Perez, 438 F.3d 971 (9th Cir. Feb. 22, 2006) (California conviction for possession or purchase of cocaine base for purposes of sale, in violation of California Health & Safety Code § 11351.5, is not categorically a drug trafficking offense within the meaning of U.S.S.G. § 2L1.2(b)(1)(A) for purposes of illegal re-entry sentencing, because the California offense includes purchase for sale, which is not drug trafficking under the guidelines).
DRUG TRAFFICKING – SECOND POSSESSION Ferreira v. Ashcroft, 382 F.3d 1045 (9th Cir. Sept. 9, 2004) (second California conviction for possession of methamphetamines under California Health & Safety Code § 11377(a), is not an aggravated felony drug trafficking offense for immigration purposes; second possession conviction is not made a “felony” for aggravated felony removal purposes by virtue of a recidivist sentence enhancement; court noted that contrary case, United States v. Garcia-Olmedo, 112 F.3d 399 (9th Cir. 1997), had been overruled by en banc decision United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002)).
DRUG TRAFFICKING – POSSESSION FOR SALE United States v. Benitez-Perez, 367 F.3d 1200 (9th Cir. May 20, 2004) (Nevada conviction for a violation of N.R.S. § 453.337.1, which provides that “it is unlawful for a person to possess for the purpose of sale . . . any controlled substance classified in schedule I or II,” constitutes a drug trafficking offense as defined by U.S.S.G. § 2L1.2 for purposes of imposing a 16-level enhancement to the sentence for illegal re-entry, because the statute does not reach conduct outside of the Guidelines definition of a drug-trafficking offense).
DRUG TRAFFICKING – POSSESSION United States v. Rios-Beltran, 361 F.3d 1204 (9th Cir. Mar. 24, 2004) (Oregon conviction of possession of a Schedule II controlled substance, a Class C felony under Oregon law with a maximum term of imprisonment of five years, Or. Rev. Stat. § § 475.992(4)(b), 161.605(3), was found to be a felony for purposes of INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), and therefore an aggravated felony for sentencing purposes, even though the maximum possible term under the Oregon sentencing guidelines was 90 days).
DRUG TRAFFICKING – SIMPLE POSSESSION Cazarez-Gutierrez v. Ashcroft, 356 F.3d 1015 (9th Cir. Jan. 26, 2004) (Arizona conviction for simple possession, in violation of Ariz.Rev.Stat. Ann. § 13 3407, cannot be an aggravated felony since the offense would not be a felony if prosecuted under federal law), withdrawn on jurisdictional grounds, 366 F.3d 736 (9th Cir. Apr 26, 2004).
DRUG TRAFFICKING – ATTEMPTED SALE OF A CONTROLLED SUBSTANCE United States v. Hernandez-Valdovinos, 352 F.3d 1243 (9th Cir. Dec. 17, 2003) (Arizona attempted sale conviction, in violation of A.R.S. § 13-3408, constituted drug trafficking offense for illegal re-entry sentence enhancement purposes, under U.S.S.G. § 2L1.2).
DRUG TRAFFICKING – MONEY LAUNDERING Lara-Chacon v. Ashcroft, 345 F.3d 1148 (9th Cir. Oct. 10, 2003) (BIA improperly relied upon presentence report in finding Arizona conviction for conspiracy to commit money laundering in violation of Ariz. Rev. Stat. § § 13-1003, 12-2317(A)(1), (C) was a drug trafficking crime where presentence report indicated respondent was a drug dealer and the offense involved 15 pounds of marijuana).
DRUG TRAFFICKING – TRANSPORTATION DOES NOT EQUAL IMPORTATION OF A CONTROLLED SUBSTANCE United States v. Cabaccang, 332 F.3d 622 (9th Cir. June 6, 2003) (transportation of controlled substances on a nonstop flight within the United States does not constitute importation under 21 U.S.C. § 952(a), even though the flight traveled through international airspace).
DRUG TRAFFICKING – MANUFACTURE Olivera-Garcia v. INS, 328 F.3d 1083 (9th Cir. May 5, 2003) (federal conviction of offense of manufacture of methamphetamine, in violation of 21 U.S.C. 841(a)(1), constituted an illicit-trafficking “aggravated felony” under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B)).
DRUG TRAFFICKING – DELIVERY OF A CONTROLLED SUBSTANCE United States v. Chavaria-Angel, 323 F.3d 1172 (9th Cir. Mar. 26, 2003) (Oregon conviction of delivery of a controlled substance, in violation of Oregon Revised Statute § 475.992, constitutes an aggravated felony within the meaning of U.S.S.G. § 2L1.2, as a drug trafficking crime under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), because it is a felony punishable by more than one year’s imprisonment under applicable state law).
DRUG TRAFFICKING – POSSESSION OF A CONTROLLED SUBSTANCE United States v. Soberanes, 318 F.3d 959 (9th Cir. Feb. 10, 2003) (Arizona conviction for possession of eight pounds of marijuana, a Class 5 felony under Ariz.Rev.Stat. § § 13- 3405(B)(3), 13-1001(C)(4), qualified as “aggravated felony” under U.S.S.G. § 2L1.2(b)(1)(C), to enhance sentence of defendant convicted of unlawful re-entry).
DRUG TRAFFICKING – SECOND POSSESSION OF MARIJUANA United States v. Ballesteros-Ruiz, 319 F.3d 1101 (9th Cir. Feb. 10, 2003) (Arizona second conviction of possession of marijuana, in violation of A.R.S. § § 13-901.01(A), (E), did not constitute an aggravated felony for purposes of enhancing a sentence for illegal re-entry after deportation, because the first-offense maximum punishment was not in excess of one year and therefore did not qualify as a felony under the federal definition, because the increased sentence resulting from the prior conviction was not considered to be “for” the “offense,” but was rather a recidivist sentence enhancement that could not be considered for that purpose under United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. June 6, 2002) (en banc)).
DRUG TRAFFICKING – POSSESSION United States v. Arellano-Torres, 303 F.3d 1173 (9th Cir. July 12, 2002) (Nevada conviction of possession of a controlled substance qualified as an “aggravated felony” for illegal re-entry sentence enhancement purposes, even though the conviction would have been a misdemeanor if prosecuted under federal law, and even though state law mandated probation for first-time offenders such as defendant, since a four-year prison sentence was suspended and thus a felony sentence would have been possible for this conviction).
DRUG TRAFFICKING – SALE, TRANSPORTATION, OR SOLICITATION United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir. Apr. 18, 2001) (California conviction of sale, transportation, or solicitation of sale, under California Health & Safety Code § 11360(a), is under a divisible statute for purposes of deciding whether the conviction is an aggravated felony for purposes of enhancing a sentence for illegal re-entry, since the statute penalizes offer to sell which is equivalent to solicitation, which has been held not to constitute an aggravated felony or controlled substances offense).
DRUG TRAFFICKING – POSSESSION United States v. Ibarra-Galindo, 206 F.3d 1337 (9th Cir. Mar. 27, 2000), cert. denied, 531 U.S. 1102 (2001) (Washington felony conviction of possession of a controlled substance, in violation of R.C.W. § 69.50.401(d), carrying a five-year maximum sentence, constituted an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for purposes of enhancing a sentence for illegal re-entry, even though it would not have been a felony conviction if prosecuted under federal law).
DRUG TRAFFICKING – SOLICITATION TO POSSESS FOR SALE Leyva-Licea v. INS, 187 F.3d 1147 (9th Cir. Aug. 19, 1999) (Arizona conviction for solicitation to possess marijuana for sale, in violation of Ariz. Rev. Stat. § § 13-1002(A) & 13-3405(A)(2)(B)(5), did not constitute an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), or trigger deportation, since the Controlled Substances Act neither mentions solicitation nor contains any broad catch-all provision that could even arguably be read to cover solicitation).
DRUG TRAFFICKING – SOLICITATION TO POSSESS United States v. Meza-Corrales, 183 F.3d 1116 (9th Cir. July 16, 1999) (Arizona conviction for solicitation to possess a controlled substance, in violation of A.R.S. § § 13-1002, 13-3408(A)(1) and (B)(1), is a “felony drug offense” under 21 U.S.C. § 802(44), for purposes of federal drug sentencing enhancement under 21 U.S.C. § 841(b)(1)(B)), distinguishing Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir. 1997).
DRUG TRAFFICKING – SALE OR FURNISHING United States v. Lara-Aceves, 183 F.3d 1007 (9th Cir. July 6, 1999), cert. denied, 528 U.S. 1095 (2000) (California conviction for selling/furnishing a controlled substance under California Health & Safety Code § 11360(a) was “aggravated felony,” under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for sentencing purposes under U.S.S.G. § 2L1.2(b)(1)(A)).
DRUG TRAFFICKING – TRANSPORTATION OF DRUGS United States v. Casarez-Bravo, 181 F.3d 1074, 1077 (9th Cir. June 22, 1999) (California conviction of transportation of marijuana under California Health & Safety Code § 11360 cannot serve as a federal career offender predicate conviction, and is not an aggravated felony, because it can be committed for personal use).
DRUG TRAFFICKING Ortiz v. INS, 179 F.3d 1148 (9th Cir. June 8, 1999) (Guatemala conviction for drug trafficking was “aggravated felony” under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for immigration purposes).
DRUG TRAFFICKING – FURNISHING United States v. Estrada-Torres, 179 F.3d 776 (9th Cir. June 7, 1999) (California conviction under California Health and Safety Code § 11360(a) for selling/furnishing marijuana constitutes an “aggravated felony” under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for illegal re-entry sentencing purposes within the meaning of U.S.S.G. § 2L1.2(b)(1)(A)).
DRUG TRAFFICKING – SALE OR TRANSPORTATION United States v. Estrada-Torres, 179 F.3d 776 (9th Cir. June 7, 1999) (California conviction for sale/offer to sell/transportation of marijuana, in violation of California Health & Safety Code § 11360(a), was an “aggravated felony,” under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for purposes of illegal re-entry sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(A)), cert. denied, 531 U.S. 864 (2000), overruled by United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir. Apr. 18, 2001).
DRUG TRAFFICKING – SECOND POSSESSION United States v. Zarate-Martinez, 133 F.3d 1194 (9th Cir. Jan. 13, 1998), cert. denied, 525 U.S. 849 (1998) (California second conviction for cocaine possession under Health & Safety Code § 11350(a) was an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), because it was both punishable under the federal Controlled Substances Act and a felony).
DRUG TRAFFICKING – SOLICITATION TO POSSESS Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir. Sept. 30, 1997) (Arizona conviction for solicitation to possess cocaine, under A.R.S. § 13-1002, was not conviction for violation of law “relating to a controlled substance,” within meaning of federal deportation statute, but rather was conviction for generic crime that was distinct from underlying crime and that, unlike conspiracy or attempt, was not included in federal statute as possible basis for deportation under INA § 241(a)(2)(B)(i), 8 U.S.C. § 1251(a)(2)(B)(i) (1994); same argument can be made this conviction does not constitute an aggravated felony); but cf. United States v. Meza-Corrales, 183 F.3d 1116 (9th Cir. July 16, 1999) (conviction under Arizona’s general purpose solicitation statute qualifies as a “felony drug offense” under 21 U.S.C. § 802(44)).
DRUG TRAFFICKING – SECOND POSSESSION United States v. Garcia-Olmedo, 112 F.3d 399 (9th Cir. Apr. 22, 1997) (Arizona second conviction for simple possession of narcotics is an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B) for purposes of enhancing a sentence for illegal re-entry under INA § 276(b)(2), 8 U.S.C. § 1326(b)(2)).
DRUG TRAFFICKING – SALE OR TRANSPORTATION United States v. Arzate-Nunez, 18 F.3d 730 (9th Cir. Feb. 28, 1994) (California conviction for sale or transportation of a controlled substance, in violation of California Health & Safety Code § 11352, was an “aggravated felony” for purposes of enhancing sentence for offense of illegal re-entry).
DRUG TRAFFICKING – SALE Urbina-Mauricio v. INS, 989 F.2d 1085 (9th Cir. Mar. 26, 1993) (California convictions for selling drugs constituted aggravated felonies under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B)).
DRUG TRAFFICKING – SALE Arthurs v. INS, 959 F.2d 142 (9th Cir. Mar. 18, 1992) (California conviction for sale of cocaine was an “aggravated felony” under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B)).
Lower Courts of the Ninth Circuit
DRUG TRAFFICKING – POSSESSION Diaz-Zaldierna v. Fasano, 43 F.Supp.2d 1114, 1115 n.2 (S.D.Cal. Mar. 16, 1999) (California conviction of possession of a controlled substance, in violation of Health and Safety Code § 11350, is not an aggravated felony).
Tenth Circuit
DRUG TRAFFICKING – POSSESSION United States v. Herrera-Roldan, 414 F.3d 1238 (10th Cir. July 13, 2005) (Texas conviction for possession of more than 50, but no more than 2000, pounds of marijuana constituted an aggravated felony “drug trafficking crime,” as defined by 18 U.S.C. § 924(c), and thus merited an 8-level adjustment under U.S.S.G. § 2L1.2(b)(1); however, the offense of simple possession (no matter what the amount) is not a “drug trafficking offense” under U.S.S.G. § 2L1.2(b)(1)(B) (which would merit a 12-level adjustment), as there is no trafficking element to the offense).
DRUG TRAFFICKING – POSSESSION United States v. Castro-Rocha, 323 F.3d 846 (10th Cir. Mar. 25, 2003) (Texas state drug conviction of possession of a controlled substance, for which the defendant was sentenced to a one-year term of imprisonment (suspended), constituted a felony under Texas law, and an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for purposes of an eight-level sentence enhancement for illegal re-entry, even though the amendments to U.S.S.G. § 2L1.2, effective Nov. 1, 2001, altered the definition of “aggravated felony” to exclude state simple possession felony convictions for some other Guidelines purposes).
DRUG TRAFFICKING – ATTEMPTED POSSESSION United States v. Lugo, 170 F.3d 996 (10th Cir. Mar. 11, 1999) (Utah conviction of attempted possession of a controlled substance, in violation of U.C.A.1953, 58-37-8(1)(a)(ii), constituted an “aggravated felony,” under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for purposes of enhancing a sentence for illegal re-entry).
DRUG TRAFFICKING – POSSESSION United States v. Valenzuela-Escalante, 130 F.3d 944 (10th Cir. Dec. 5, 1997) (Utah felony conviction of possession of a controlled substance, in violation of U.C.A. § 58-37-8, constituted an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B) for purposes of enhancing sentence for illegal re-entry).
DRUG TRAFFICKING – POSSESSION FOR SALE United States v. Guerrero-Hernandez, 95 F.3d 983 (10th Cir. Sept. 6, 1996) (New Mexico conviction for possession of marijuana or hashish for sale qualified as aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B) for purposes of enhancing sentence under U.S.S.G. § 2L1.2(b)(2) for illegal re-entry).
DRUG TRAFFICKING – POSSESSION United States v. Cabrera-Sosa, 81 F.3d 998 (10th Cir. Apr. 16, 1996), cert. denied, 519 U.S. 885 (1996) (New York conviction for felony possession of cocaine was aggravated felony).
Eleventh Circuit
DRUG TRAFFICKING – ATTEMPTED SALE OF A CONTROLLED SUBSTANCE United States v. Phillips, 413 F.3d 1288 (11th Cir. June 22, 2005) (state conviction of attempted sale of a controlled substance is a drug trafficking offense for sentencing purposes).
DRUG TRAFFICKING United States v. Madera-Madera, 333 F.3d 1228 (11th Cir. June 10, 2003) (Georgia conviction of possession of 28 grams or more of methamphetamines, in violation of O.C.G.A. § 16-13-31(e), constituted a “drug trafficking offense” under U.S.S.G. § 2L1.2(b)(1)(A)(ii), for purposes of a 16-level increase in sentence for illegal re-entry, since Georgia’s inference of intent to distribute from possession of an elevated amount of drugs is permissible).
DRUG TRAFFICKING – POSSESSION FOR SALE Fequiere v. Ashcroft, 279 F.3d 1325, 1326 n.3 (11th Cir. Jan. 25, 2002) (Florida conviction of possession of cocaine with intent to distribute, in violation of Fla. Stat. Ann. § 893.13, constituted an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B) for removal purposes).
DRUG TRAFFICKING – POSSESSION United States v. Simon, 168 F.3d 1271 (11th Cir. Mar. 4, 1999), cert. denied, 528 U.S. 844, 120 S.Ct. 114 (1999) (Florida conviction for possession of cocaine was a “drug trafficking crime,” under 18 U.S.C. § 924(c), and thus defendant was subject to 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A) (1997) of illegal re-entry sentence for aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), as cocaine conviction was a third-degree felony under Florida law, even though possession of cocaine was only punishable under the Controlled Substances Act as a misdemeanor).
BIA
DRUG TRAFFICKING – SECOND POSSESSION Matter of Elgendi, 23 I. & N. Dec. 515 (BIA Oct. 31, 2002) (en banc) (New York second misdemeanor conviction of possession of marijuana in the fifth degree, in violation of New York Penal Law § 221.10, did not constitute a drug trafficking crime, under 18 U.S.C. § 924(c)(2), under the Second Circuit test of United States v. Pornes-Garcia, 171 F.3d 142 (2d Cir. Mar. 26, 1999), since state law held these convictions were misdemeanors with a maximum of three months in custody, and therefore not drug-trafficking aggravated felonies under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for deportation purposes).
DRUG TRAFFICKING – SECOND POSSESSION Matter of Santos-Lopez, 23 I. & N. Dec. 419 (BIA May 14, 2002) (en banc) (Texas state court misdemeanor convictions for possession of two ounces or less of marijuana, in violation of Texas Penal Code § 481.121, punishable by “confinement in jail for a term not to exceed 180 days” are not felony convictions within the meaning of 18 U.S.C. § 924(c)(2) or “aggravated felonies” under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B)).
DRUG TRAFFICKING – POSSESSION Matter of Yanez-Garcia, 23 I. & N. Dec. 390 (BIA May 13, 2002) (en banc) (Illinois felony conviction of possession of cocaine in violation of chapter 720, section 570/402(c) of the Illinois Compiled Statutes, constitutes a “drug trafficking crime” under 18 U.S.C. § 924(c)(2), and is an “aggravated felony” under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B)).
DRUG TRAFFICKING – POSSESSION Matter of KVD, 23 I. & N. Dec. 390 (BIA Dec. 10, 1999) (Texas felony conviction of simple possession of a controlled substance, which would be a misdemeanor if prosecuted under federal law, is not an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B)), affirming Matter of LG, 21 I. & N. Dec. 89 (BIA Dec. 27, 1995), overruled by Matter of Yanez-Garcia, 23 I. & N. Dec. 390 (BIA May 13, 2002)).
DRUG TRAFFICKING – ACCESSORY AFTER THE FACT Matter of Batista-Hernandez, 21 I. & N. Dec. 955 (BIA July 15, 1997) (federal conviction pursuant to 18 U.S.C. § 3 as accessory after the fact to a drug-trafficking crime does not establish deportability as a drug-trafficking aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), because accessory after the fact is not listed as an inchoate offense (like attempt and conspiracy) that Congress chose to consider an aggravated felony under INA § 101(a)(43)(U), 8 U.S.C. § 1101(a)(43)(U)).
DRUG TRAFFICKING – SALE Matter of Ponce De Leon-Ruiz, 21 I. & N. Dec. 154 (BIA Jan. 3, 1996) (en banc) (Minnesota conviction of sale of marijuana, in violation of Minnesota Statutes § 152.025(1), constitutes an aggravated felony as a drug-trafficking crime under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), despite argument that law allowed reduction to misdemeanor on successful completion of probation).
DRUG TRAFFICKING – POSSESSION Matter of LG, 21 I. & N. Dec. 89 (BIA Sept. 27, 1995) (en banc) (Louisiana conviction of drug possession, considered a felony under state law, could not be considered a “felony” under 18 U.S.C. § 924(c)(2), and is therefore not an “aggravated felony” under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B)), overruled in part by Matter of Yanez-Garcia, 23 I. & N. Dec. 390 (BIA May 13, 2002).
DRUG TRAFFICKING – POSSESSION Matter of LG, 20 I. & N. Dec. 905 (BIA Nov. 3, 1994) (federal conviction under 21 U.S.C. § 844(a) for simple possession of more than 5 grams of a mixture or substance which contains cocaine base is a conviction for an aggravated felony under INA § 101(a)(43), 8 U.S.C. § 1101(a)(43), as is a state conviction analogous to such a federal conviction).
DRUG TRAFFICKING – USE OF FIREARM DURING DRUG TRAFFICKING CRIME Matter of KL, 20 I. & N. Dec. 654 (BIA June 3, 1993) (federal conviction under 18 U.S.C. § 924(c)(1), for use of a firearm during a drug trafficking crime, is deportable under former 8 U.S.C. § 1251(a)(2)(A)(iii), as a drug-trafficking aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B)) (alternative holding).
DRUG TRAFFICKING – CONSPIRACY TO DISTRIBUTE Matter of Davis, 20 I. & N. Dec. 536 (BIA May 28, 1992) (Maryland conviction of conspiracy to distribute a controlled substance, in violation of article 27, section 286(a)(1) of the Maryland Annotated Code, constitutes a “drug trafficking crime” as defined in 18 U.S.C. § 924(c)(2) (1988), and is therefore an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), triggering deportation, because the underlying state trafficking offense would have been a felony under federal law, even though the state conspiracy conviction was a misdemeanor), holding modified by Matter of Yanez-Garcia, 23 I. & N. Dec. 390 (BIA May 13, 2002).
DRUG TRAFFICKING – POSSESSION Matter of Davis, 20 I. & N. Dec. 536 (BIA May 28, 1992) (Maryland conviction of simple possession of a controlled substance does not fall within the common definition of “illicit trafficking” as used in INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B)).
DRUG TRAFFICKING – DISTRIBUTION Matter of De La Cruz, 20 I. & N. Dec. 346 (BIA July 16, 1991) (federal conviction for distribution of cocaine in violation of 21 U.S.C. § § 812, 841(a)(1), (b)(1)(C), and (b)(2), constituted an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B)), criticized by Matter of Ellis, 20 I. & N. Dec. 641 (BIA Mar. 8, 1993).
DRUG TRAFFICKING – SALE Matter of Roberts, 20 I. & N. Dec. 294 (BIA May 1, 1991) (Missouri conviction for felony sale of a controlled substance is sufficient to support a determination that the respondent is a drug trafficker within the meaning of INA § 101(a)(43), 8 U.S.C. § 1101(a)(43)).
DRUG TRAFFICKING – POSSESSION FOR SALE Matter of Barrett, 20 I. & N. Dec. 171 (BIA Mar. 2, 1990) (Maryland convictions for “possession of a controlled dangerous substance in sufficient quantity to reasonably indicate under all circumstances an intent to manufacture, distribute, or dispense” in violation of article 27, section 286 of the Annotated Code of Maryland held aggravated felony convictions if the state conviction includes all the elements necessary for a conviction under the analogous federal drug felony offense, here 21 U.S.C. § 841(a)(1)).
§ A.19 Failure To Appear in Court To Face Charges
§ A.19
Second Circuit
Lower Courts of the Second Circuit
FAILURE TO APPEAR TO FACE CHARGES Barnaby v. Reno, 142 F.Supp.2d 277 (D.Conn. May 9, 2001) (Connecticut conviction for failure to appear when legally called, in violation of Conn.Gen. Stat. Ann. § 53a-172, held not to be an aggravated felony, under INA § 101(a)(43)(T), 8 U.S.C. § 1101(a)(43)(T), for deportation purposes, since even if executed by the defendant, appearance bond merely constituted a promise to appear and did not meet the court order requirement of the aggravated felony definition).
§ A.20 Failure To Appear in Court To Serve Sentence
§ A.20
[No Cases Yet: Check the on-line version of this Appendix for updates at: http://www.CriminalAndImmigrationLaw.com]
§ A.21
Fifth Circuit
FIREARM OFFENSE – POSSESSION OF UNREGISTERED FIREARM United States v. Diaz-Diaz, 327 F.3d 410 (5th Cir. Apr. 3, 2003) (Texas conviction for possession of a prohibited weapon — a short-barrel firearm — in violation of Tex. Penal Code § 46.05, constituted a listed aggravated felony firearms offense under INA § 101(a)(43)(E)(iii), 8 U.S.C. § 1101(a)(43)(E)(iii), as an “offense described in . . . [26 U.S.C. § ] 5861 . . . (relating to firearms offenses),” for purposes of a 16-level sentence enhancement for illegal re-entry pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(iii), since there is no element or substantial risk that force will be used in the commission of the offense).
FIREARMS OFFENSE – POSSESSION OF FIREARM BY ALIEN United States v. Reyna-Espinosa, 117 F.3d 826 (5th Cir. July 11, 1997) (federal conviction for unlawful possession of a firearm by an alien under 18 U.S.C. § 922(g)(5) does not constitute an “aggravated felony” for purposes of increasing the defendant’s offense level for illegal re-entry by 16 levels pursuant to U.S.S.G. § 2L1.2(b)(2), although it does for immigration purposes).
Ninth Circuit
FIREARMS OFFENSE – POSSESSION OF FIREARM BY FELON United States v. Castillo-Rivera, 244 F.3d 1020 (9th Cir. Mar. 26, 2001), cert. denied, 122 S.Ct. 294 (2001) (California conviction for violating California Penal Code § 12021(a), felon in possession of a firearm, constitutes an aggravated felony under INA § 101(a)(43)(E), 8 U.S.C. § 1101(a)(43)(E), because it is “an offense described in” 18 U.S.C. § 922(g)(1), the federal felon-in-possession statute, even though the state crime, unlike § 922(g), does not include any interstate or foreign commerce federal jurisdictional element, and therefore supports sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(A) for illegal re-entry conviction of violating INA § 176(a), 8 U.S.C. § 1326(a)).
FIREARMS OFFENSE – POSSESSION OF FIREARM BY ALIEN United States v. Sandoval-Barajas, 206 F.3d 853 (9th Cir. Mar. 13, 2000), cert. denied, 122 S.Ct. 408 (2001) (Washington conviction for possession of firearm by noncitizen, in violation of R.C.W. § 9.41.170, was not an aggravated felony, under INA § 101(a)(43)(E), 8 U.S.C. § 1101(a)(43)(E), for purposes of 16-level enhancement under Sentencing Guidelines for illegal re-entry conviction, since the state statute was broader than the applicable federal statute).
Tenth Circuit
Lower Courts of the Tenth Circuit
FIREARMS OFFENSE – POSSESSION OF SAWED-OFF SHOTGUN United States v. Villanueva-Gaxiola, 119 F.Supp.2d 1185 (D.Kan. Sept. 26, 2000) (California conviction for unlawful possession of short-barreled shotgun, in violation of California Penal Code § 12020, was not an aggravated felony under INA § 101(a)(43)(E)(iii), 8 U.S.C. § 1101(a)(43)(E)(iii) as an offense described in 26 U.S.C. § 5861 or 18 U.S.C. § 922(g)(5) for illegal re-entry sentencing purposes, since the elements of the state offense allow conviction for conduct which would not constitute the listed federal offense), following United States v. Sandoval-Barajas, 206 F.3d 853 (9th Cir. Mar. 13, 2000).
BIA
FIREARMS OFFENSE – POSSESSION OF FIREARM BY FELON Matter of Vasquez-Muniz, 23 I. & N. Dec. 207 (BIA Jan. 15, 2002) (California conviction of possession of a firearm by a felon in violation of California Penal Code § 12021(a)(l) is an aggravated felony under INA § 101(a)(43)(E)(ii), 8 U.S.C. § 1101(a)(43)(E)(ii) because it is “described in” 18 U.S.C. § 922(g)(l), even though the state statute lacks the jurisdictional element required by the federal statute).
§ A.22
Second Circuit
FIREARMS TRAFFICKING – CONSPIRACY TO EXPORT WITHOUT LICENSE Kuhali v. Reno, 266 F.3d 93 (2d Cir. Sept. 27, 2001) (federal conviction for conspiracy to export firearms without license, in violation of 18 U.S.C. § 371 and 22 U.S.C. § 2778, constitutes an aggravated felony under INA § § 101(a)(43)(C), (U), 8 U.S.C. § § 1101(a)(43)(C), (U), for immigration purposes, since it necessarily exhibits a business or merchant nature, regardless of any nexus with commerce as an element of the offense or of a similar “match” between elements).
Seventh Circuit
FIREARMS TRAFFICKING United States v. Gonzalez, 112 F.3d 1325, 1327 n.1 (7th Cir. May 6, 1997), cert. denied, 522 U.S. 962 (1997) (federal conviction of illicit trafficking in firearms (as defined in 18 U.S.C. § 921), in violation of 18 U.S.C. § 922(a)(1), 18 U.S.C. § 1202(a)(1), and 26 U.S.C. § § 5861(d) and (e), constituted an “aggravated felony” under INA § 101(a)(43)(C), 8 U.S.C. § 1101(a)(43)(C), for purposes of enhancing sentence for illegal re-entry).
§ A.23
First Circuit
FORGERY United States v. Johnstone, 251 F.3d 281 (1st Cir. June 5, 2001) (Colorado conviction for forgery, on which a one-year sentence was imposed, constituted an aggravated felony under INA § 101(a)(43)(R), 8 U.S.C. § 1101(a)(43)(R), warranting sentence enhancement for illegal re-entry under U.S.S.G. § 2L1.2(b)(1)(A)).
Second Circuit
FORGERY – POSSESSION OF FORGED DOCUMENT Richards v. Ashcroft, 400 F.3d 125 (2d Cir. Mar. 3, 2005) (Connecticut conviction of possession of a forged document with intent to defraud, deceive, or injure, in violation of Conn. Gen. Stat. § 53a-139, is “an offense relating to . . . forgery” within the meaning of INA § 101(a)(43)(R), 8 U.S.C. § 1101(a)(43)(R), and is therefore an aggravated felony for deportation purposes under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii)).
Third Circuit
FORGERY Drakes v. Zimski, 240 F.3d 246 (3d Cir. Feb. 20, 2001) (Delaware conviction for forgery in violation of 11 Del.C. § 861, with one-year sentence imposed, was “aggravated felony,” under INA § 101(a)(43)(R), 8 U.S.C. § 1101(a)(43)(R), causing Court of Appeals to lose jurisdiction to consider petition for review of deportation order).
BIA
FORGERY Matter of Aldabesheh, 22 I. & N. Dec. 983 (BIA Aug. 30, 1999) (en banc) (New York conviction for forgery in the second degree, in violation of section 170.10(2) of the New York Penal Law, is an aggravated felony under INA § 101(a)(43)(R), 8 U.S.C. § 1101(a)(43)(R)).
§ A.24
Second Circuit
FRAUD OFFENSE – POSSESSION OF COUNTERFEIT SECURITIES Sui v. INS, 250 F.3d 105 (2d Cir. May 11, 2001) (federal conviction of violating 18 U.S.C. § 513(a), possession of counterfeit securities with intent to deceive, does not constitute a deportable aggravated felony as a conviction of an offense involving fraud, under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), since the loss to the victims as a result of defendant’s actions did not exceed $10,000).
Third Circuit
FRAUD OFFENSE – THEFT BY DECEPTION Nugent v. Ashcroft, 367 F.3d 162 (3d Cir. May 7, 2004) (Pennsylvania conviction of theft by deception, in violation of 18 Pa. Cons. Stat. Ann. § 3922(a), with an indeterminate sentence from a minimum of six months to a maximum of 23 months, does not trigger removal as an aggravated felony fraud conviction under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), since the loss to the victim was under $10,000, and because it is a hybrid offense, as a theft offense as well as a fraud offense, it must qualify as an aggravated felony under both categories or it does not trigger removal).
FRAUD OFFENSE – THEFT Munroe v. Ashcroft, 353 F.3d 225 (3d Cir. Dec. 16, 2003) (New Jersey conviction of theft by deception, N.J.S.A. § 2C: 20-4, held to be aggravated felony fraud conviction under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), for deportation purposes where actual loss to victim exceeded $10,000, even though sentencing judge reduced amount of restitution from $11,522 to $9,999, since critical fact is amount of loss, not restitution amount).
FRAUD OFFENSE – EMBEZZLEMENT Valansi v. Ashcroft, 278 F.3d 203 (3d Cir. Jan. 23, 2002) (federal conviction for embezzling, in violation of 18 U.S.C. § 656, in excess of $400,000 in cash and checks from employer was not a fraud offense aggravated felony as defined in section INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), for immigration purposes).
Lower Courts of the Third Circuit
FRAUD OFFENSE – BANK FRAUD Sulaiman v. Attorney General, Immigration and Naturalization Service, 212 F.Supp.2d 413 (E.D.Pa. July 30, 2002) (federal conviction of bank fraud, in violation of 18 U.S.C. § 1344, held to be an aggravated felony fraud offense with loss to victim(s) in excess of $10,000, under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), for the immigration purpose of denying asylum).
FRAUD OFFENSE – FALSE STATEMENT ON LOAN APPLICATION Sharma v. Ashcroft, 158 F.Supp.2d 519, 521 (E.D.Pa. May 25, 2001) (federal conviction of making false statements on a loan application, in violation of 18 U.S.C. § 1014, constitutes an “aggravated felony” as defined by 8 U.S .C. § 1101(a)(43)(M)(i), for immigration purposes).
FRAUD OFFENSE – BANK FRAUD Sharma v. Ashcroft, 158 F.Supp.2d 519, 521 (E.D.Pa. May 25, 2001) (federal conviction of bank fraud, in violation of 18 U.S.C. § 1344, constitutes an “aggravated felony” as defined by 8 U.S .C. § 1101(a)(43)(M)(i) for immigration purposes).
FRAUD OFFENSE – CONSPIRACY TO COMMIT BANK FRAUD United States v. Ogembe, 41 F.Supp.2d 567 (E.D.Pa. Mar. 3, 1999) (federal conviction of conspiracy to commit bank fraud in violation of 18 U.S.C. § 371 constitutes aggravated felony as any offense that “involves fraud or deceit in which the loss to the victim or victims exceeds $10,000” under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), regardless of sentence).
Fourth Circuit
FRAUD OFFENSE – FRAUDULENT USE OF A CREDIT CARD TO OBTAIN PROPERTY Soliman v. Gonzales, 419 F.3d 276 (4th Cir. Aug. 22, 2005) (Virginia conviction of fraudulent use of a credit card, in violation of Virginia Code § 18.2-195, with intent to obtain $200.00 in property, is not an aggravated felony theft offense; the BIA erred in finding that fraud offenses necessarily included theft; theft is distinguishable from fraud, in that theft requires the taking of property without consent, while fraud requires an intent to deprive through consent obtained through misrepresentation).
Fifth Circuit
FRAUD OFFENSE – TRANSPORTATION OF STOLEN PROPERTY Omari v. Gonzales, 419 F.3d 303 (5th Cir. July 25, 2005) (federal conviction of interstate transportation of stolen, converted, and fraudulently obtained property, in violation of 18 U.S.C. § 2314, is not an aggravated felony under INA § 101(a)(43)(M)(i) for immigration purposes, as not all parts of 18 U.S.C. § 2314 necessarily involve fraud or deceit).
Seventh Circuit
FRAUD – CONSPIRACY TO POSSESS STOLEN MOTOR VEHICLES Iysheh v. Gonzales, 437 F.3d 613 (7th Cir. Feb. 1, 2006) (federal conviction of “conspiracy to transport, receive, possess, etc. stolen motor vehicles” in violation of 18 U.S.C. § § 371 and 2313(a), constituted a fraud aggravated felony, under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), even though the statute did not have an element of fraud or deceit, because the record of conviction establishes fraud, since noncitizen pleaded guilty to “count one of the superseding indictment,” which describes a conspiracy (1) “to defraud a financial institution ... in violation of [18 U.S.C. § ] 1344”; (2) “to transport in interstate commerce [stolen] motor vehicles ... in violation of [18 U.S.C. § ] 2312”; and (3) “to receive, possess, conceal, store, and sell [stolen] motor vehicles ... in violation of [18 U.S.C. § ] 2313(a)” and the plea agreement established a total loss from the conspiracy in excess of $200,000).
FRAUD OFFENSE – BANK FRAUD Knutsen v. Gonzales, 429 F.3d 733 (7th Cir. Nov. 22, 2005) (federal conviction of bank fraud, in violation of 18 U.S.C. § 1344, did not constitute aggravated felony fraud offense under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), since losses stemming from dismissed second count of two-count bank fraud indictment against noncitizen could not be added to the losses from the first count, to which the guilty plea was entered, for purpose of showing that the loss to the victim exceeded $10,000, as required for the offense to constitute an aggravated felony, because neither the first count nor the plea agreement alleged a single scheme with a loss over $10,000, and stipulations in plea agreement did not amount to a concession that the total loss amount of fraudulent scheme exceeded $10,000), distinguishing Khalayleh v. INS, 287 F.3d 978 (10th Cir. Apr. 23, 2002).
Ninth Circuit
FRAUD OFFENSE – WELFARE FRAUD Ferreira v. Ashcroft, 390 F.3d 1091 (9th Cir. Dec. 1, 2004) (California conviction of welfare fraud, in violation of Welf. & Inst. Code § 10980(c)(2), as interpreted by California judicial decisions defining the elements of the offense, invariably requires an element of fraud or deceit, and therefore constitutes an offense involving fraud or deceit for purposes of qualifying as an aggravated felony as defined under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i) triggering deportation).
FRAUD OFFENSE – FALSE CLAIM AGAINST THE UNITED STATES Li v. Ashcroft, 389 F.3d 892, 897 (9th Cir. Nov. 19, 2004) (federal conviction of making a false claim against the United States, in violation of 18 U.S.C. § 287, is divisible with respect to the fraud offense aggravated felony defined in INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), since even though it does require some intended loss, “no particular amount of intended loss is required,” and so does not automatically satisfy the element of this aggravated felony definition requiring a loss to the victim(s) in excess of $10,000, so the record of conviction must be examined to determine whether the conviction falls within the definition).
FRAUD OFFENSE – FALSE STATEMENT TO GOVERNMENT OFFICIAL Li v. Ashcroft, 389 F.3d 892 (9th Cir. Nov. 19, 2004) (federal conviction of making a false statement to a United States official, in violation of 18 U.S.C. § 1001, is divisible with respect to the fraud offense aggravated felony defined in INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), since it does not require proof of any monetary loss and so does not automatically satisfy the element of this aggravated felony definition requiring a loss to the victim(s) in excess of $10,000, so the record of conviction must be examined to determine whether the conviction falls within the definition).
FRAUD OFFENSE – CONSPIRACY TO DEFRAUD THE UNITED STATES Li v. Ashcroft, 389 F.3d 892 (9th Cir. Nov. 19, 2004) (federal conviction of conspiracy to defraud the United States, in violation of 18 U.S.C. § 371, is divisible with respect to the fraud offense aggravated felony defined in INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), since it does not require proof of any monetary loss and so does not automatically satisfy the element of this aggravated felony definition requiring a loss to the victim(s) in excess of $10,000, so the record of conviction must be examined to determine whether the conviction falls within the definition).
FRAUD OFFENSE – BANK FRAUD Chang v. INS, 307 F.3d 1185 (9th Cir. Oct. 11, 2002) (federal conviction of bank fraud for knowingly passing a $605.30 bad check held not to constitute an aggravated felony, under INA § 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), as a conviction of an offense involving fraud for which the loss to the victim(s) exceeded $10,000, even though losses resulting from the entire scheme described in the PSR exceeded $30,000, since plea agreement specified loss from the count of conviction as $605.30).
FRAUD OFFENSE – FALSE TAX RETURN Abreu-Reyes v. INS, 292 F.3d 1029 (9th Cir. June 10, 2002) (federal conviction of subscribing to a false tax return, in violation of 26 U.S.C. § 7206(1), constituted an aggravated felony as a fraud offense under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i) for removal purposes), opinion withdrawn on grant of rehearing by, 350 F.3d 966 (9th Cir. Nov. 21, 2003).
Lower Courts of the Ninth Circuit
FRAUD OFFENSE – WELFARE FRAUD Danh v. Demore, 59 F.Supp.2d 994 (N.D.Cal. May 28, 1999) (California conviction of welfare fraud, in violation of California Welf. & Inst.Code § 10980(c)(2), constituted an aggravated felony under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), as “fraud or deceit in which the loss to the victim or victims exceeds $10,000”).
Tenth Circuit
FRAUD OFFENSE – BANK FRAUD Khalayleh v. INS, 287 F.3d 978, 980 (10th Cir. Apr. 23, 2002) (federal conviction of bank fraud, in violation of 18 U.S.C. § 1344(1), constituted conviction of an offense involving fraud, with a loss to the victim(s) in excess of $10,000, and was therefore an aggravated felony for deportation purposes under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), since the count of the indictment to which a plea was entered alleged a scheme to defraud encompassing a number of checks indisputably totaling in excess of $10,000; result might be different if each “count alleged a discrete fraud involving a single check,” “even if a plea agreement gave the district court authority to order restitution with respect to all four checks in the indictment, see 18 U.S.C. § 3663(a)(3), perhaps only the check in the count to which the defendant pleaded could properly be considered in determining the amount of the loss for purposes of the definition of aggravated felony.”).
Eleventh Circuit
FRAUD OFFENSE – EMBEZZLEMENT Balogun v. U.S. Attorney Gen., 425 F.3d 1356 (11th Cir. Sept. 26, 2005) (Alabama conviction for embezzlement of moneys belonging to the United States is an aggravated felony fraud offense under INA § 101(a)(43)(M)(i); the United States may be considered the “victim” for purposes of INA § 101(a)(43)(M)(i)).
FRAUD OFFENSE – CONSPIRACY TO COMMIT BANK FRAUD Bejacmar v. Ashcroft, 291 F.3d 735 (11th Cir. May 14, 2002) (conspiracy to commit bank fraud, a violation of 18 U.S.C. § 371, constituted an aggravated felony under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), since the loss exceeded $10,000).
FRAUD OFFENSE – MISAPPLICATION OF BANK FUNDS Moore v. Ashcroft, 251 F.3d 919 (11th Cir. May 14, 2001) (federal conviction of misapplication of bank funds, in violation of 18 U.S.C. § 656, constituted aggravated felony under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i) for removal purposes, since it necessarily involves fraud or deceit and loss exceeded $10,000).
BIA
FRAUD OFFENSE – SUBMITTING FALSE CLAIM Matter of Onyido, 22 I. & N. Dec. 552 (BIA Mar. 4, 1999) (en banc) (Indiana conviction of submitting a false claim with intent to defraud, in violation of section 35-43-5-4(10) of the Indiana Code, a Class D felony for which the respondent received the maximum penalty of 3 years confinement, arising from an unsuccessful scheme to obtain $15,000 from an insurance company, was a conviction of an “attempt” to commit a fraud in which the loss to the victim exceeded $10,000, which was an aggravated felony within the meaning of INA § 101(a)(43)(U), 8 U.S.C. § 1101(a)(43)(U), triggering deportation under 8 U.S.C. § 1251(a)(2)(A)(iii)).
§ A.25 Illegal Re-Entry After Deportation
§ A.25
Fifth Circuit
ILLEGAL RE-ENTRY – ILLEGAL ENTRY Rivera-Sanchez v. Reno, 198 F.3d 545 (5th Cir. Dec. 30, 1999) (federal conviction of violating INA § 275(a), 8 U.S.C. § 1325(a) — illegal entry — did not occur after the defendant had previously been deported, and so did not constitute an aggravated felony as defined in INA § 101(a)(43)(O), 8 U.S.C. § 1101(a)(43)(O) for immigration purposes).
§ A.26
Ninth Circuit
KIDNAPPING – EXTORTION United States v. Anderson, 989 F.2d 310 (9th Cir. 1993) (Washington: outlining generic definition of extortion by reference to 18 U.S.C. § 1951 federal definition for purposes of career offender sentencing enhancement).
§ A.27
BIA
MISPRISION OF FELONY Matter of Espinoza, 22 I. & N. Dec. 889 (BIA June 11, 1999) (en banc) (federal conviction for misprision of a felony under 18 U.S.C. § 4 (1994) does not constitute a conviction for an aggravated felony under INA § 101(a)(43)(S), 8 U.S.C. § 1101(a)(43)(S), as an offense relating to obstruction of justice), distinguishing Matter of Batista-Hernandez, 21 I. & N. Dec. 955 (BIA July 15, 1997).
§ A.28
Ninth Circuit
MONEY LAUNDERING Chowdhury v. INS, 249 F.3d 970, 972-974 (9th Cir. May 14, 2001) (federal conviction for money laundering $1,310 in violation of 18 U.S.C. § 1956(a)(1)(A) did not constitute an “aggravated felony,” even though defendant was ordered to pay $967,753.39 in restitution, because, under INA § 101(a)(43)(D), 8 U.S.C. § 1101(a)(43)(D), the amount of funds laundered must exceed $10,000).
§ A.29
Second Circuit
MURDER – ATTEMPTED MURDER United States v. Morgan, 380 F.3d 698 (2d Cir. Aug. 19, 2004) (New York conviction for second-degree attempted murder, with sentence to indeterminate term of two-and-a-half to seven-and-a-half years’ imprisonment, properly treated as an “aggravated felony” for illegal re-entry sentencing purposes, even though it was not an aggravated felony under the relevant immigration statute at the time of the conviction).
Ninth Circuit
MURDER Castiglia v. INS, 108 F.3d 1101 (9th Cir. Mar. 7, 1997) (second-degree murder conviction constituted aggravated felony under INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A)).
Eleventh Circuit
MURDER Lettman v. Reno, 207 F.3d 1368 (11th Cir. Mar. 31, 2000) (Florida conviction of third-degree murder constitutes an aggravated felony under INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A), for deportation purposes).
BIA
MURDER Matter of Punu, 22 I. & N. Dec. 224 (BIA Aug. 18, 1998) (Texas conviction of attempted murder constitutes aggravated felony under INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A) for deportation purposes).
§ A.30 National Security Offenses
§ A.30
[No Cases Yet: Check the on-line version of this Appendix for updates at: http://www.CriminalAndImmigrationLaw.com]
§ A.31
Fifth Circuit
OBSTRUCTION OF JUSTICE – CONTEMPT OF COURT Alwan v. Ashcroft, 388 F.3d 507 (5th Cir. Oct. 18, 2004) (federal conviction of contempt of court, under 18 U.S.C. § 401(3), was one “relating to obstruction of justice,” and thus an “aggravated felony” for immigration purposes).
Eleventh Circuit
OBSTRUCTION OF JUSTICE Oguejiofor v. Attorney General of U.S., 277 F.3d 1305 (11th Cir. Jan. 2, 2002) (conviction of obstruction of justice constituted an aggravated felony under INA § 101(a)(43)(S), 8 U.S.C. § 1101(a)(43)(S) for removal purposes).
BIA
OBSTRUCTION OF JUSTICE – MISPRISION OF FELONY Matter of Espinoza, 22 I. & N. Dec. 889 (BIA June 11, 1999) (en banc) (federal conviction for misprision of a felony under 18 U.S.C. § 4 does not constitute a conviction for an aggravated felony under INA § 101(a)(43)(S), 8 U.S.C. § 1101(a)(43)(S), as an offense relating to obstruction of justice), distinguishing Matter of Batista-Hernandez, 21 I. & N. Dec. 955 (BIA July 15, 1997)).
OBSTRUCTION OF JUSTICE – HINDERING ONE’S OWN ARREST Matter of Joseph, 22 I. & N. Dec. 799, 808 (BIA May 28, 1999) (“[I]t is substantially unlikely that the offense of simply obstructing or hindering one’s own arrest will be viewed as an obstruction of justice aggravated felony under INA § 101(a)(43)(S), 8 U.S.C. § 1101(a)(43)(S) of the Act for removal purposes.”).
OBSTRUCTION OF JUSTICE – ACCESSORY AFTER THE FACT Matter of Batista-Hernandez, 21 I. & N. Dec. 955 (BIA July 15, 1997) (federal conviction pursuant to 18 U.S.C. § 3 as accessory after the fact to a drug-trafficking crime establishes deportability as an aggravated felony under former INA § 241(a)(2)(A)(iii), because the offense of accessory after the fact falls within the definition of an obstruction of justice crime under INA § 101(a)(43)(S), 8 U.S.C. § 1101(a)(43)(S)).
§ A.32
BIA
PERJURY Matter of Martinez-Recinos, 23 I. & N. Dec. 175 (BIA Oct. 15, 2001) (California conviction for perjury in violation of California Penal Code § 118(a) constitutes a conviction for an aggravated felony under INA § 101(a)(43)(S), 8 U.S.C. § 1101(a)(43)(S) for immigration purposes).
§ A.33
[No Cases Yet: Check the on-line version of this Appendix for updates at: http://www.CriminalAndImmigrationLaw.com]
§ A.34
Ninth Circuit
RAPE United States v. Yanez Saucedo, 295 F.3d 991 (9th Cir. July 8, 2002) (Washington conviction of third-degree rape, in violation of Wash. Rev.Code § 9A.44.060, was an “aggravated felony” as rape under INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A), to trigger sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(A) for conviction of unlawfully re-entry, even though the elements of the state statute are different than those of the federal “rape” statute and the conviction required only that force required for penetration, which was sufficient to meet the federal generic definition of rape).
RAPE Castro-Baez v. Reno, 217 F.3d 1057 (9th Cir. June 30, 2000) (California rape conviction under California Penal Code § 261(a)(3) constitutes an “aggravated felony” within the meaning of INA § 101(a)(43)(A) for deportation purposes, though the elements of the state and federal statutes are not identical).
§ A.35 Receiving Stolen Property
§ A.35
Fourth Circuit
RECEIVING STOLEN PROPERTY – CONCEALMENT OF MERCHANDISE Ramtulla v. Ashcroft, 301 F.3d 202 (4th Cir. Aug. 22, 2002) (Virginia conviction of concealment of merchandise, in violation of Va.Code Ann. § 18.2-103, constitutes a “theft offense” and with a two-year suspended sentence therefore constitutes an aggravated felony under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G) for deportation purposes).
Seventh Circuit
RECEIVING STOLEN PROPERTY – POSSESSION OF STOLEN VEHICLE Hernandez-Mancilla v. INS, 246 F.3d 1002 (7th Cir. Apr. 11, 2001) (Illinois conviction for possession of a stolen motor vehicle, in violation of 625 ILCS § 5/4-103(a)(1) a “theft offense,” under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), and therefore constituted an “aggravated felony” rendering noncitizen deportable).
Ninth Circuit
RECEIVING STOLEN PROPERTY – FAILURE TO RETURN LOST MEANS OF TRANSPORTATION Nevarez-Martinez v. INS, 326 F.3d 1053 (9th Cir. Apr. 16, 2003) (Arizona conviction of failure to return lost means of transportation, in violation of Arizona Revised Statute § 13-1814(A)(4), did not constitute a theft offense aggravated felony, under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), since the statute did not require intent to deprive the owner of the property) (alternative holding).
RECEIVING STOLEN PROPERTY – POSSESSION OF STOLEN VEHICLE Huerta-Guevara v. Ashcroft, 321 F.3d 883 (9th Cir. Mar. 4, 2003) (Arizona conviction of possession of a stolen vehicle, in violation of A.R.S. § 13-1802, did not fall within the generic definition of “theft offense” necessary to constitute an aggravated felony under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), since the Arizona statute was overbroad, with respect to the generic definition, because (a) it prohibited “theft of services,” which are not considered property and therefore fall outside the generic definition of theft, (b) it prohibited aiding and abetting, and (c) it “is a divisible statute, four subparts of which do not require intent.”).
Tenth Circuit
RECEIVING STOLEN PROPERTY – AUTO United States v. Vasquez-Flores, 265 F.3d 1122 (10th Cir. Sept. 13, 2001), cert. denied, 122 S.Ct. 1180 (2002) (Utah conviction for attempting to knowingly receive or transfer a stolen motor vehicle, in violation of U.C.A. 1953 § 41-1a-1316, was an “aggravated felony” under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G) for enhancement purposes under U.S.S.G. § 2L1.2(b)(2) of an illegal re-entry sentence).
BIA
RECEIVING STOLEN PROPERTY – ATTEMPT Matter of Bahta, 22 I. & N. Dec. 1381 (BIA Oct. 4, 2000) (Nevada conviction for attempted possession of stolen property, in violation of Nevada Revised Statutes § § 193.330 and 205.275, is a conviction for an attempted “theft offense (including receipt of stolen property),” and therefore an aggravated felony, within the meaning of sections INA § § 101(a)(43)(G) and (U), 8 U.S.C. § § 1101(a)(43)(G) and (U)).
§ A.36 Revealing Undercover Agent’s Identity
§ A.36
[No Cases Yet: Check the on-line version of this Appendix for updates at: http://www.CriminalAndImmigrationLaw.com]
§ A.37
Fifth Circuit
RICO OFFENSES Alfarache v. Cravener, 203 F.3d 381, 384 (5th Cir. Feb. 22, 2000), cert. denied, 531 U.S. 813 (2000) (federal conviction of conspiracy to participate in a racketeering enterprise in violation of 18 U.S.C. § 1962(d), was an “aggravated felony” under INA § 101(a)(43)(J), 8 U.S.C. § 1101(a)(43)(J), for immigration purposes).
§ A.38 Sexual Abuse of a Minor
§ A.38
SEXUAL ABUSE OF A MINOR – LEWD ASSAULT ON CHILD United States v. Londono-Quintero, 289 F.3d 147 (1st Cir. May 6, 2002) (Florida conviction of lewd and lascivious assault on child, in violation of F.S.A. § 800.04, was sexual abuse of a minor and therefore an aggravated felony under INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A) warranting enhancement of sentence for illegal re-entry under U.S.S.G. § 2L1.2(b)(1)(A)).
SEXUAL ABUSE OF A MINOR – INDECENT ASSAULT ON A CHILD Emile v. INS, 244 F.3d 183 (1st Cir. Mar. 30, 2001) (Massachusetts conviction for indecent assault and battery on a child under 14, in violation of Mass. Gen. Laws ch. 265 § 13B, qualified as an aggravated felony under INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A), since state statute included conduct that, with an appropriate federal nexus, would violate federal sexual abuse statutes).
Lower Courts of the First Circuit
SEXUAL ABUSE OF A MINOR – RAPE OF A CHILD Sango-Dema v. District Director, INS, 122 F.Supp.2d 213 (D.Mass. Nov. 20, 2000) (Massachusetts conviction for rape of a child, under Mass. Gen. L. ch. 265, § 23, with sentence of two and a half years in custody, constitutes “sexual abuse of a minor,” an aggravated felony under INA § 101(43)(A), 8 U.S.C. § 1101(43)(A), for removal purposes).
Second Circuit
Lower Courts of the Second Circuit
SEXUAL ABUSE OF A MINOR – RISK OF INJURY Santapaola v. Ashcroft, 249 F.Supp.2d 181 (D.Conn. Mar. 13, 2003) (Connecticut conviction for risk of injury, in violation of Conn. Gen.Stat. § 53-21(1), constituted an aggravated felony conviction for “sexual abuse of a minor” within meaning of INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A), as a ground of deportation).
Third Circuit
SEXUAL ABUSE OF A MINOR – UNLAWFUL SEXUAL CONTACT Singh v. Ashcroft, 383 F.3d 144 (3d Cir. Sept. 17, 2004) (Delaware conviction of unlawful sexual contact in the third degree under Del. C. § 767, penalizing “sexual contact with another person [with knowledge] that the contact is either offensive to the victim or occurs without the victim’s consent,” does not constitute sexual abuse of a minor under INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A), for purposes of triggering deportability).
Fifth Circuit
SEXUAL ABUSE OF A MINOR – INDECENT LIBERTIES WITH A CHILD United States v. Izaguirre-Flores, 405 F.3d 270 (5th Cir. Mar. 31, 2005) (North Carolina conviction for taking indecent liberties with a child, in violation of North Carolina General Statute § 14-202.1(a)(1) – “being 16 years of age or more and at least five years older than the child in question, he . . . willfully takes or attempts to take any immoral, improper, or indecent liberties with any child of either sex under the age of 16 years for the purpose of arousing or gratifying sexual desire . . ..” – constituted sexual abuse of a minor for purposes of enhancing a sentence for illegal re-entry after deportation, under U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2003)).
SEXUAL ABUSE OF A MINOR – INDECENCY WITH CHILD BY EXPOSURE United States v. Zavala-Sustaita, 214 F.3d 601 (5th Cir. June 13, 2000), cert. denied, 531 U.S. 982, 121 S.Ct. 434 (2000) (Texas conviction of sexual indecency with a child by exposure under Texas Penal Code § 21.11(a)(2), constitutes an aggravated felony “sexual abuse of a minor” under INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A), for purposes of the aggravated felony sentencing enhancement, U.S.S.G. § 2L1.2, for illegal re-entry).
Sixth Circuit
SEXUAL ABUSE OF A MINOR United States v. Gonzales-Vela, 276 F.3d 763 (6th Cir. Nov. 21, 2001) (Kentucky misdemeanor conviction for sexual abuse of minor, in violation of K.R.S. § 510.120(1)(a, b), constituted aggravated felony under INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A), for purposes of sentencing enhancement under U.S.S.G. § 2L1.2(b) for illegal re-entry).
Seventh Circuit
SEXUAL ABUSE OF A MINOR – INDECENT SOLICITATION OF A CHILD Hernandez-Alvarez v. Gonzales, 432 F.3d 763 (7th Cir. Dec. 28, 2005) (Illinois conviction of indecent solicitation of a child, in violation of 720 ILCS § 5/11-6(a), constituted sexual abuse of a minor aggravated felony, under INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A), for deportation purposes even though the person solicited was an adult police officer rather than a minor).
SEXUAL ABUSE OF A MINOR – SOLICITATION OF A SEXUAL ACT Gattem v. Gonzalez, 412 F.3d 758 (7th Cir. June 20, 2005) (Illinois conviction of misdemeanor solicitation to engage in a sexual act, in violation of 720 ILCS § 5/11-14.1(a), is an aggravated felony sexual abuse of a minor offense for immigration purposes where the criminal complaint (and no other document) shows that the victim was under the age of 18).
SEXUAL ABUSE OF A MINOR – SEXUAL ASSAULT United States v. Martinez-Carillo, 250 F.3d 1101 (7th Cir. May 17, 2001), cert. denied, 122 S.Ct. 285 (2001) (Illinois conviction for criminal sexual assault in violation of 720 ILCS § 5/12-13(a)(3), for inserting finger into daughter’s vagina, who was thirteen years old at the time, was an aggravated felony as sexual abuse of a minor, under INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A), for purposes of enhancing illegal re-entry sentence).
SEXUAL ABUSE OF A MINOR Lara-Ruiz v. INS, 241 F.3d 934 (7th Cir. Mar. 6, 2001) (Illinois sexual assault conviction, in violation of Ill.Rev.Stat.1991, ch. 38, § 12-13(a)(1, 2), which involved four-year-old victim, was “aggravated felony” of “sexual abuse of a minor” within meaning of INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A) for deportation purposes).
SEXUAL ABUSE OF A MINOR Guerrero-Perez v. INS, 242 F.3d 727 (7th Cir. Mar. 5, 2001) (Illinois misdemeanor conviction for sexual abuse of minor in violation of 720 ILCS § 5/12-15(c), constituted aggravated felony under INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A) for deportation purposes), pet. for rehearing denied, 256 F.3d 546 (9th Cir. 2001).
Lower Courts of the Seventh Circuit
SEXUAL ABUSE OF A MINOR Guadarrama v. Perryman, 48 F.Supp.2d 782 (N.D.Ill. May 6, 1999) (Wisconsin conviction of second-degree sexual abuse of a child constituted an aggravated felony under INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A) for removal purposes).
Eighth Circuit
SEXUAL ABUSE OF A MINOR – SEXUAL ASSAULT OF A MINOR United States v. Mendez-Morales, 384 F.3d 927 (8th Cir. Oct. 6, 2004) (Nebraska conviction of first-degree sexual assault of a minor constituted aggravated felony sexual abuse of a minor, for purposes of illegal re-entry sentence enhancement).
Ninth Circuit
SEXUAL ABUSE OF A MINOR – COMMUNICATION WITH MINOR FOR IMMORAL PURPOSES Parrilla v. Gonzales, 414 F.3d 1038 (9th Cir. July 11, 2005) (Washington conviction of communication with a minor for immoral purposes, in violation of Washington Revised Code § 9.68A.090, is not categorically an aggravated felony under INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A), because the statute broadly included “immoral purposes” such as providing information on how to get an unlawful abortion, displaying pornography visible from a public thoroughfare, and allowing a minor onto the premises of a live erotic performance, which, while not commendable, were not abusive in nature).
SEXUAL ABUSE OF A MINOR – UNLAWFUL SEX WITH A MINOR Valencia v. Gonzales, 406 F.3d 1154 (9th Cir. May 12, 2005) (California conviction of felony unlawful sexual intercourse with a minor by a person more than three years older, in violation of Penal Code § 261.5(c), constituted sexual abuse of a minor, and was therefore an aggravated felony under INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A), for deportation purposes), withdrawn and superceded by 439 F.3d 1046 (9th Cir. Mar. 6, 2006).
SEXUAL ABUSE OF MINOR – SEXUAL SEDUCTION United States v. Alvarez-Gutierrez, 394 F.3d 1241 (9th Cir. Jan. 14, 2005) (Nevada conviction for statutory sexual seduction, for having had sexual intercourse with a 14-year-old girl, in violation of Nev.Rev.Stat. § § 200.364, 368, punishable as a gross misdemeanor by a sentence of up to one year, Nev.Rev.Stat. § 193.140, constituted sexual abuse of a minor, and was therefore an aggravated felony under INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A), for purposes of imposing an eight-level illegal re-entry sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(C)).
SEXUAL ABUSE OF A MINOR – ANNOY MOLEST United States v. Pallares-Galan, 359 F.3d 1088 (9th Cir. Feb. 20, 2004) (California conviction of violating Penal Code § 647.6(a), annoy or molest a child under 18, is conviction under a “divisible statute,” and does not constitute an aggravated felony “sexual abuse of a minor” offense for illegal re-entry sentencing purposes).
SEXUAL ABUSE OF A MINOR – LEWD ACT WITH A CHILD Cedano-Viera v. Ashcroft, 324 F.3d 1062 (9th Cir. Apr. 7, 2003) (Nevada conviction of lewd act on a child, in violation of Nevada Revised Statute § 201.230(1), constituted sexual abuse of a minor and was therefore an aggravated felony under INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A), depriving the court of appeals of jurisdiction to review a removal order).
SEXUAL ABUSE OF A MINOR United States v. Mendoza-Iribe, 198 F.3d 742 (9th Cir. Oct. 18, 1999), cert. denied, 529 U.S. 1061 (2000) (California conviction under California Penal Code § 289(j) for penetrating genital or anal openings of child under 14 years of age with foreign object was sexual abuse of a minor under INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A), and therefore “aggravated felony” warranting sentence enhancement for illegal re-entry).
SEXUAL ABUSE OF A MINOR – LEWD ACT WITH A CHILD United States v. Baron-Medina, 187 F.3d 1144 (9th Cir. Aug. 19, 1999), cert. denied, 531 U.S. 1167 (2001) (California conviction for committing a lewd act on a child under 14, in violation of California Penal Code § 288(a), constitutes “sexual abuse of a minor,” and is therefore an “aggravated felony” within the meaning of INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A) for purposes of a sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(A) for illegal re-entry).
Lower Courts of the Ninth Circuit
SEXUAL ABUSE OF A MINOR Santiago v. U.S. INS, 134 F.Supp.2d 1102 (N.D.Cal. Mar. 26, 2001) (California conviction of committing a lewd act with a child, in violation of California Penal Code § 288(A), constituted aggravated felony under INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A) as sexual abuse of a minor for immigration purposes).
Eleventh Circuit
SEXUAL ABUSE OF A MINOR – INDECENT ASSAULT ON MINOR Chuang v. U.S. Attorney General, 382 F.3d 1299 (11th Cir. Sept. 2, 2004) (Florida conviction for “indecent assault child under 16,” in violation of Fla. Stat. § 800.04, qualified as sexual abuse of a minor, thus rendering him deportable as an aggravated felon under INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A)).
SEXUAL ABUSE OF A MINOR – INDECENT LIBERTIES Bahar v. Ashcroft, 264 F.3d 1309 (11th Cir. Sept. 10, 2001) (North Carolina conviction of taking indecent liberties with a minor, in violation of N.C.G.S. § 14-202.1, constituted “sexual abuse of a minor,” triggering removal as aggravated felon under INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A), even though the defendant did not engage in some form of physical contact with minor).
SEXUAL ABUSE OF A MINOR – LEWD ACT ON CHILD United States v. Padilla-Reyes, 247 F.3d 1158 (11th Cir. Apr. 11, 2001), cert. denied, 122 S.Ct. 256 (2001) (Florida conviction of violating Florida Statute § 800.04, “Lewd, lascivious, or indecent assault or act upon or in presence of child; sexual battery,” constitutes “sexual abuse of a minor,” and therefore an aggravated felony under INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A), for purposes of enhancing illegal re-entry sentence under U.S.S.G. § 2L1.2(b)(1)(A), even though the offense does not arise to the level of rape or sexual battery, since sexual abuse of a minor meant physical or nonphysical misuse or maltreatment of a minor for a purposes associated with sexual gratification).
SEXUAL ABUSE OF A MINOR – CHILD MOLESTATION United States v. Marin-Navarette, 244 F.3d 1284 (11th Cir. Mar. 23, 2001), cert. denied, 122 S.Ct. 317 (2001) (Washington conviction of third-degree child molestation constitutes “sexual abuse of a minor,” and therefore an aggravated felony under INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A), for purposes of enhancing illegal re-entry sentence under U.S.S.G. § 2L1.2(b)(1)(A)).
BIA
SEXUAL ABUSE OF A MINOR – UNLAWFUL SEX WITH A MINOR
Matter of VFD, 23 I. & N. Dec. 859 (BIA 2006) (Florida conviction for unlawful sexual activity with a minor, in violation of Fla. Stat. Ann. § 794.05(1), is an aggravated felony sexual abuse of a minor offense under INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A), for immigration purposes; victim of sexual abuse who is under the age of 18 is a “minor” for purposes of determining whether a noncitizen has been convicted of sexual abuse of a minor).
SEXUAL ABUSE OF A MINOR Matter of Small, 23 I. & N. Dec. 448 (BIA June 4, 2002) (en banc) (New York misdemeanor conviction sexual abuse in the second degree, in violation of New York Penal Law § 130.60(2), constitutes “sexual abuse of a minor” and is therefore an aggravated felony under INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A)).
SEXUAL ABUSE OF A MINOR – INDECENT EXPOSURE Matter of Rodriguez-Rodriguez, 22 I. & N. Dec. 991 (BIA Sept. 16, 1999) (en banc) (Texas conviction of indecency with a child by exposure of private parts, pursuant to section 21.11(a)(2) of the Texas Penal Code, constitutes sexual abuse of a minor and is therefore an aggravated felony within the meaning of INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A)).
§ A.39
Second Circuit
SOLICITATION – DRUG TRAFFICKING United States v. Liranzo, 944 F.2d 73, 78-79 (2d Cir. Sept. 5, 1991) (federal: although facilitation is not included on the list in the application note to the career offender provision, and is not sufficiently similar to aiding and abetting, conspiracy, and attempt to be encompassed by the application note, the term “include” implies that the list of offenses in the application note is merely illustrative; court observed that the application note “may not be an exhaustive list” and proceeded to decide “whether . . . criminal facilitation should be included in that list” and concluded that criminal facilitation of the sale of cocaine is a controlled substance offense).
Fifth Circuit
SOLICITATION – DRUG TRAFFICKING United States v. Garza-Lopez, 410 F.3d 268 (5th Cir. May 19, 2005) (California conviction for “[t]ransport/sell methamphetamine” under Cal. Health & Safety Code § 11379(a) did not constitute conviction of drug trafficking with sentence imposed in excess of 13 months for purposes of triggering a sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i) (2003), for illegal re-entry after deportation, because the statute of conviction is overbroad and prohibits some conduct that does not fall within the Guidelines enhancement definition of drug trafficking offense, and the record of conviction does not narrow the offense of conviction to conduct falling within the enhancement); but see Peters v. Ashcroft, 383 F.3d 302 (5th Cir. Aug. 27, 2004) (state conviction of felony solicitation to transport marijuana for sale is controlled substance conviction under INA § 237(a)(2)(B)(i), for deportation purposes), following Matter of Beltran, 20 I. & N. Dec. 521 (BIA May 28, 1992).
Sixth Circuit
SOLICITATION – DRUG TRAFFICKING United States v. Dolt, 27 F.3d 235, 239-240 (6th Cir. June 23, 1994) (federal conviction of solicitation to traffic in cocaine is not a controlled substance offense under the career offender provision in U.S.S.G. § 4B1.1, because “the fact that the Sentencing Commission did not include solicitation in its list of predicate crimes in [the application note] is evidence that it did not intend to include solicitation as a predicate offense for career offender status.”).
Seventh Circuit
SOLICITATION – INDECENT SOLICITATION OF A CHILD Hernandez-Alvarez v. Gonzales, 432 F.3d 763 (7th Cir. Dec. 28, 2005) (Illinois conviction of indecent solicitation of a child, in violation of 720 ILCS § 5/11-6(a), constituted sexual abuse of a minor aggravated felony, under INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A), for deportation purposes even though the person solicited was an adult police officer rather than a minor).
SOLICITATION – SOLICITATION OF A SEXUAL ACT Gattem v. Gonzalez, 412 F.3d 758 (7th Cir. June 20, 2005) (Illinois conviction of misdemeanor solicitation to engage in a sexual act, in violation of Illinois law, 720 ILCS § 5/11-14.1(a), is an aggravated felony sexual abuse of a minor offense for immigration purposes where the criminal complaint (and no other document) shows that the victim was under the age of 18).
Ninth Circuit
SOLICITATION – DRUG TRAFFICKING United States v. Shumate, 329 F.3d 1026, 1030-1031 (9th Cir. May 20, 2003) (Oregon: the omission of solicitation from the offenses listed in the application note as included in U.S.S.G. § 4B1.1 as predicate offenses was not legally significant because, under the Guidelines, the term “includes” is not exhaustive, so conviction of solicitation of delivery of marijuana is a controlled substance offense for purposes of a career offender enhancement).
SOLICITATION – DRUG TRAFFICKING United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir. Apr. 18, 2001) (California conviction of sale, transportation, or solicitation of sale of a controlled substance, under California Health & Safety Code § 11360(a), is under a divisible statute for purposes of deciding whether it a conviction is an aggravated felony for purposes of enhancing a sentence for illegal re-entry, since the statute penalizes offer to sell which is equivalent to solicitation, which has been held not to constitute an aggravated felony or controlled substances offense).
SOLICITATION – DRUG TRAFFICKING Leyva-Licea v. INS, 187 F.3d 1147 (9th Cir. Aug. 19, 1999) (Arizona conviction for solicitation to possess marijuana for sale in violation of Ariz. Rev. Stat. § § 13-1002(A), 13-3405(A)(2)(B)(5), did not constitute an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), or trigger deportation, since the Controlled Substances Act neither mentions solicitation nor contains any broad catch-all provision that could even arguably be read to cover solicitation).
SOLICITATION – POSSESSION OF DRUGS United States v. Meza-Corrales, 183 F.3d 1116 (9th Cir. July 16, 1999) (Arizona conviction for solicitation to possess a controlled substance, in violation of ARS § § 13-1002; 13-3408(A)(1) and (B)(1), is a “felony drug offense” for purposes of federal drug sentencing enhancement under 21 U.S.C. § 841(b)(1)(B)), distinguishing Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir. 1997).
SOLICITATION – DRUG TRAFFICKING United States v. Estrada-Torres, 179 F.3d 776 (9th Cir. June 7, 1999) (California conviction for sale/offer to sell/transportation of marijuana, in violation of California Health & Safety Code § 11360(a), was an “aggravated felony,” under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for purposes of illegal re-entry sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(A)), cert. denied, 531 U.S. 864 (2000), overruled by United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir. Apr. 18, 2001).
SOLICITATION –POSSESSION OF DRUGS Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir. Sept. 30, 1997) (Arizona conviction for solicitation to possess cocaine, under A.R.S. § 13-1002, was not conviction for violation of law “relating to a controlled substance,” within meaning of federal deportation statute, but rather was conviction for generic crime that was distinct from underlying crime and that, unlike conspiracy or attempt, was not included in federal statute as possible basis for deportation under former INA § 241(a)(2)(B)(i), 8 U.S.C. § 1251(a)(2)(B)(i) (1994); same argument can be made this conviction does not constitute an aggravated felony); but cf. United States v. Meza-Corrales, 183 F.3d 1116 (9th Cir. July 16, 1999) (conviction under Arizona’s general purpose solicitation statute qualifies as a “felony drug offense” under 21 U.S.C. § 802(44)).
Tenth Circuit
SOLICITATION – CRIME OF VIOLENCE United States v. Cornelio-Pena, 435 F.3d 1279 (10th Cir. Jan. 30, 2006) (Arizona conviction of solicitation to commit second-degree burglary of a dwelling, in violation of Ariz. Rev. Stat. § § 13-1002, 1507, is a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii), justifying a 16-level sentence enhancement for illegal re-entry, even though the Guidelines do not expressly list solicitation, where they “include” “aiding and abetting, conspiring, and attempting, to commit such offenses.” U.S.S.G. § 2L1 .2 cmt. application n. 5, because “include” is non-exhaustive and the examples expressly listed are merely illustrative, since the mens rea and actus reus required for solicitation are similar to those required for aiding and abetting, conspiracy, and attempt, so solicitation is sufficiently similar to the offenses listed in the application note to be encompassed by the note).
§ A.40
Second Circuit
STATUTORY RAPE – CRIME OF VIOLENCE Chery v. Ashcroft, 347 F.3d 404 (2d Cir. Oct. 17, 2003) (Connecticut conviction under Conn.G.S § 53a-71 for consensual sexual intercourse with a person under age 18 (statutory rape) is a crime of violence under 18 U.S.C. § 16(b) and aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for immigration purposes, even though no harm was actually done to 14-year-old victim, since offense involves a substantial risk that physical force might be used against the victim in the course of committing the offense).
STATUTORY RAPE – SEXUAL ABUSE OF A MINOR Mugalli v. Ashcroft, 258 F.3d 52 (2d Cir. July 10, 2001) (New York conviction for “statutory rape,” in violation of New York Penal Law § 130.25-2, constituted sexual abuse of a minor, and was therefore an “aggravated felony” under INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A) for deportation purposes).
Seventh Circuit
STATUTORY RAPE – CRIME OF VIOLENCE Xiong v. INS, 173 F.3d 601 (7th Cir. Apr. 12, 1999) (Wisconsin conviction of “sexual contact or sexual intercourse with a person who has not attained the age of 16 years,” in violation of W.S.A. § 948.02(2), was not “crime of violence,” and thus was not aggravated felony under INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(F) for deportation purposes, where conduct on which conviction was based consisted of consensual sex between 18-year-old boyfriend and his 15-year-old girlfriend).
Eighth Circuit
STATUTORY RAPE – UNLAWFUL SEX WITH A MIINOR – CRIME OF VIOLENCE United States v. Gomez-Hernandez, 300 F.3d 974 (8th Cir. Aug. 28, 2002) (California conviction of unlawful sexual intercourse with a minor, in violation of California Penal Code § 261.5(d), is a crime of violence and therefore an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), and justifies illegal re-entry sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(A)).
STATUTORY RAPE – CRIME OF VIOLENCE United States v. Bauer, 990 F.2d 373 (8th Cir. Apr. 1, 1993) (Iowa conviction of statutory rape constituted crime of violence for purposes of career offender enhancement, regardless whether act was consensual).
Ninth Circuit
STATUTORY RAPE – CRIME OF VIOLENCE – UNLAWFUL SEX WITH A MINOR Valencia v. Gonzales, 439 F.3d 1046 (9th Cir. Mar. 6, 2006) (California conviction of engaging in unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator under Penal Code § 261.5(c) is not categorically a crime of violence under 18 U.S.C. § 16 for deportation purposes, since it does not have force as an element, under 18 U.S.C. § 16(a), and the full range of conduct encompassed by this offense does not present a substantial risk that violent force will be used in the commission of the offense under 18 U.S.C. § 16(b); mere inability to give legal consent if under 18 does not create a substantial risk that violent force will be used to commit the offense where actual consent is present; decision did not consider whether this conviction constituted a sexual abuse of a minor aggravated felony because the noncitizen was not ordered removed on that ground), second opinion, 431 F.3d 673, superseded and withdrawn.
STATUTORY RAPE – UNLAWFUL SEX WITH A MINOR – CRIME OF VIOLENCE Valencia v. Gonzales, 431 F.3d 673 (9th Cir. Dec. 12, 2005) (California conviction of engaging in unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator under Penal Code § 261.5(c) is not, absent aggravating factors, a crime of violence under 18 U.S.C. § 16 for deportation purposes, since it does not have force as an element, under § 16(a), and the full range of conduct encompassed by this offense does not present a substantial risk that violent force will be used in the commission of the offense under § 16(b); mere inability to give legal consent if under the age of 18 does not create a substantial risk that violent force will be used to commit the offense where actual consent is present; decision did not consider whether this conviction constituted a sexual abuse of a minor aggravated felony because the noncitizen was not ordered removed on that ground), withdrawn and superceded by 439 F.3d 1046 (9th Cir. Mar. 6, 2006).
STATUTORY RAPE – UNLAWFUL SEX WITH A MINOR – SEXUAL ABUSE OF A MINOR Valencia v. Gonzales, 406 F.3d 1154 (9th Cir. May 12, 2005) (California conviction of felony unlawful sexual intercourse with a minor by a person more than three years older, in violation of Penal Code § 261.5(c), constituted sexual abuse of a minor, and was therefore an aggravated felony under INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A), for deportation purposes), withdrawn and superceded by 439 F.3d 1046 (9th Cir. Mar. 6, 2006).
STATUTORY RAPE – CRIME OF VIOLENCE Valencia v. Gonzales, 406 F.3d 1154 (9th Cir. May 12, 2005) (California conviction of unlawful sexual intercourse with a person under 18, in violation of Penal Code § 261.5(c), with a five-year suspended sentence, did not have as an element the use or threat of force, and so did not constitute a crime of violence aggravated felony under 18 U.S.C. § 16(a), within the meaning of INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), or trigger removal under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii)), withdrawn and superceded by 439 F.3d 1046 (9th Cir. Mar. 6, 2006).
STATUTORY RAPE – CRIME OF VIOLENCE Valencia v. Gonzales, 406 F.3d 1154 (9th Cir. May 12, 2005) (California conviction of unlawful sexual intercourse with a person under 18 (here 17), in violation of Penal Code § 261.5(c), with a five-year suspended sentence, constituted a crime of violence aggravated felony under 18 U.S.C. § 16(b), within the meaning of INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), and therefore triggered removal under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii)), withdrawn and superceded by 439 F.3d 1046 (9th Cir. Mar. 6, 2006).
STATUTORY RAPE – SEXUAL ABUSE OF MINOR United States v. Alvarez-Gutierrez, 394 F.3d 1241 (9th Cir. Jan. 14, 2005) (Nevada conviction for statutory sexual seduction, for having had sexual intercourse with a 14-year-old girl, in violation of Nev.Rev.Stat. § § 200.364, 368, punishable as a gross misdemeanor by a sentence of up to one year, Nev.Rev.Stat. § 193.140, constituted sexual abuse of a minor, and was therefore an aggravated felony under INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A), for purposes of imposing an eight-level illegal re-entry sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(C) (2003)).
STATUTORY RAPE – CARNAL KNOWLEDGE OF CHILD 13-15 YEARS OLD – CRIME OF VIOLENCE United States v. Pereira-Salmeron, 337 F.3d 1148 (9th Cir. Aug. 4, 2003) (Virginia conviction of carnal knowledge of a child between 13 and 15 years of age, in violation of Virginia Code § 18.2-63, constituted a “crime of violence” under U.S.S.G. § 2L1.2 (2002); although the offense does not have as an element the use, attempted use, or threatened use of physical force, the offense falls within the second part of the “crime of violence” definition under U.S.S.G. § 2L1.2, cmt n.1(B)(II), which lists sexual abuse of a minor).
Eleventh Circuit
STATUTORY RAPE – CRIME OF VIOLENCE Chavarria-Mejia v. Ashcroft, 367 F.3d 1249 (11th Cir. Apr. 29, 2004) (per curiam) (Kentucky conviction of statutory rape, in violation of K.R.S. § 510.060, constituted an aggravated felony crime of violence within the meaning of U.S.S.G. § 2L1.2, for purposes of applying a 16-level enhancement to a sentence for illegal re-entry).
BIA
STATUTORY RAPE – UNLAWFUL SEX WITH A MINOR Matter of VFD, 23 I. & N. Dec. 859 (BIA 2006) (Florida conviction for unlawful sexual activity with a minor, in violation of Fla. Stat. Ann. § 794.05(1), is an aggravated felony sexual abuse of a minor offense under INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A), for immigration purposes; victim of sexual abuse who is under the age of 18 is a “minor” for purposes of determining whether a noncitizen has been convicted of sexual abuse of a minor).
§ A.41
Second Circuit
TAX EVASION Evangelista v. Ashcroft, 359 F.3d 145 (2d Cir. Feb. 23, 2004) (federal conviction of 26 U.S.C. § 7201, “defeating a tax” is an offense “relating to tax evasion,” under that statute, and therefore constitutes an aggravated felony under INA § 101(a)(43)(M)(ii), for removal purposes because “defeating a tax” and “evading a tax” are interchangeable terms).
Lower Courts of the Second Circuit
TAX EVASION – ATTEMPT Evangelista v. Ashcroft, 232 F.Supp.2d 30 (E.D.N.Y. Nov. 22, 2002) (federal conviction of attempt to evade or defeat tax in violation of 26 U.S.C. § 7201, charged as attempting to avoid an amount of tax liability in excess of $300,000, constituted an aggravated felony, under INA § 101(a)(43)(M)(ii), 8 U.S.C. § 1101(a)(43)(M)(ii), for deportation purposes).
TAX EVASION – CONSIRACY Evangelista v. Ashcroft, 204 F.Supp.2d 405, 406 (E.D.N.Y. May 7, 2002) (federal conviction of conspiracy to impede the IRS in collection of income and payroll taxes in violation of 18 U.S.C. § 371, failure to collect or pay income/FICA taxes in violation of 26 U.S.C. § 7202, and attempt to evade or defeat tax in violation of 26 U.S.C. § 7201, constituted tax evasion aggravated felony conviction under INA § 101(a)(43)(M)(ii), 8 U.S.C. § 1101(a)(43)(M)(ii), for removal purposes).
Third Circuit
TAX EVASION – FILING FALSE TAX RETURNS Lee v. United States, 368 F.3d 218 (3d Cir. May 19, 2004) (federal conviction of filing false income tax returns, in violation of 26 U.S.C. § 7206(1), is not an aggravated felony, as defined by INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), for immigration purposes, as INA § 101(a)(43)(M)(ii), 8 U.S.C. § 1101(a)(43)(M)(ii) specifically covers tax evasion, but INA § 101(a)(43)(M)(ii), 8 U.S.C. § 1101(a)(43)(M)(i) does not, since to hold otherwise would render INA § 101(a)(43)(M)(ii), 8 U.S.C. § 1101(a)(43)(M)(ii) mere surplusage).
§ A.42
First Circuit
THEFT OFFENSE – ATTEMPTED THEFT Vieira-Garcia v. INS, 239 F.3d 409 (1st Cir. Feb. 21, 2001) (Rhode Island conviction of attempted theft and sentence to term of ten years imprisonment constituted an aggravated felony under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), triggering deportation).
Second Circuit
THEFT OFFENSE – LARCENY Abimbola v. Ashcroft, 378 F.3d 173 (2d Cir. Aug. 5, 2004) (Connecticut conviction of third-degree larceny, under Conn. Gen. Stat. § 53a-124, constitutes an aggravated felony theft offense under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G)).
THEFT OFFENSE – ROBBERY Perez v. Greiner, 296 F.3d 123, 126 n.5 (2d Cir. July 19, 2002) (New York conviction for second degree robbery in violation of N.Y. Penal L. § 160.10(1), is an “aggravated felony” under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G)).
THEFT OFFENSE – PETTY THEFT United States v. Pacheco, 225 F.3d 148 (2d Cir. Aug. 29, 2000), cert. denied, 533 U.S. 904 (2001) (Rhode Island misdemeanor petty theft conviction, for which suspended sentence of one year was imposed, constituted an aggravated felony, under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), warranting 16-level enhancement of illegal re-entry sentence).
Lower Courts of the Second Circuit
THEFT OFFENSE – PETTY THEFT Jaafar v. INS, 77 F.Supp.2d 360 (W.D.N.Y. Nov. 12, 1999) (New York petit larceny conviction, in violation of N.Y. Penal L. § 155.25, a class A misdemeanor with a sentence to one year of imprisonment, was an “aggravated felony” under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G) for removal purposes).
Third Circuit
THEFT OFFENSE – THEFT OF SERVICES Ilchuk v. Attorney General, 434 F.3d 618 (3d Cir. Jan. 17, 2006) (Pennsylvania conviction of theft of services, in violation of 18 Penn. Consol. Stats. Ann. § 3926(b) (“guilty of theft if, having control over the disposition of services of others to which he is not entitled, he knowingly diverts such services to his own benefit or to the benefit of another not entitled thereto.”), with a six- to 23-month sentence to home arrest, constituted theft offense aggravated felony under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), for immigration purposes because the offense requires the taking or exercise of control over something of value knowing that its owner has not consented).
THEFT OFFENSE – THEFT BY DECEPTION Nugent v. Ashcroft, 367 F.3d 162 (3d Cir. May 7, 2004) (Pennsylvania conviction of theft by deception, in violation of 18 Pa. Cons. Stat. Ann. § 3922(a), with an indeterminate sentence from a minimum of six months to a maximum of 23 months, does not trigger removal as an aggravated felony fraud conviction under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), since the loss to the victim was under $10,000, and because it is a hybrid offense, as a theft offense as well as a fraud offense, it must qualify as an aggravated felony under both categories or it does not trigger removal).
THEFT OFFENSE – PETTY THEFT United States v. Graham, 169 F.3d 787 (3d Cir. Mar. 5, 1999), cert. denied, 528 U.S. 845 (1999) (New York conviction of petit larceny with sentence imposed of one year or more was “aggravated felony” under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), for purposes of illegal re-entry sentencing enhancement, even though it was a misdemeanor under state law).
Fourth Circuit
THEFT OFFENSE – FRAUDULENT USE OF A CREDIT CARD TO OBTAIN PROPERTY Soliman v. Gonzales, 419 F.3d 276 (4th Cir. Aug. 22, 2005) (Virginia conviction of fraudulent use of a credit card, in violation of Virginia Code § 18.2-195, with intent to obtain $200.00 in property, is not an aggravated felony theft offense; the BIA erred in finding that fraud offenses necessarily included theft; theft is distinguishable from fraud, in that theft requires the taking of property without consent, while fraud requires an intent to deprive through consent obtained through misrepresentation).
Fifth Circuit
THEFT OFFENSE – CONSPIRACY TO ENGAGE IN CHECK FRAUD United States v. Dabeit, 231 F.3d 979 (5th Cir. Oct. 30, 2000), cert. denied, 531 U.S. 1202, 121 S.Ct. 1214 (2001) (federal conviction for conspiracy to perpetrate a checking and savings account kite scheme, in violation of 18 U.S.C. § 2113(b), was an “aggravated felony,” under an attempted theft theory of INA § § 101(a)(43)(G), (U), 8 U.S.C. § § 1101(a)(43)(G), (U), so as to permit enhancement of the illegal re-entry sentence in defendant’s base offense level pursuant to U.S.S.G. § 2L1.2(b)(1)(A)).
Eighth Circuit
THEFT OFFENSE – IDENTITY THEFT United States v. Mejia-Barba, 327 F.3d 678 (8th Cir. May 5, 2003) (Iowa conviction of identity theft, in violation of Iowa Code § 715A.8, constitutes aggravated felony as a “theft offense” as defined in INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), for purposes of eight-level sentence enhancement under United States Sentencing Guideline § 2L1.2(b)(1)(C), for illegal re-entry conviction).
Ninth Circuit
THEFT OFFENSE – TAKING OF VEHICLE United States v. Vidal, 426 F.3d 1011 (9th Cir. Oct. 24, 2005) (California conviction of unlawful taking of a vehicle, in violation of Vehicle Code § 10851, constitutes an aggravated felony under the, for purposes of an eight-level increase in the base offense level for an illegal re-entry sentence).
THEFT OFFENSE Fernandez-Ruiz v. Gonzales, 431 F.3d 1212 (9th Cir. June 1, 2005) (Arizona conviction of theft, in violation of Ariz. Rev. Stat. § § 13-1802(A)(1) and (C), defined as knowingly, and without lawful authority, controlling the property of another with the intent to deprive that person of it, with a sentence of 14 months in custody, constitutes a theft offense aggravated felony under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G)).
THEFT OFFENSE – THEFT OF MEANS OF TRANSPORTATION Penuliar v. Ashcroft, 395 F.3d 1037 (9th Cir. Jan. 12, 2005) (California conviction of unlawful driving or taking a vehicle, in violation of Vehicle Code § 10851(a), was not a theft offense, within the meaning of INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), because the statute and charge both were overbroad with respect to the definition of a theft offense by encompassing not only substantive theft offenses but aiding and abetting them as well).
THEFT OFFENSE Martinez-Perez v. Ashcroft, 393 F.3d 1018 (9th Cir. Dec. 29, 2004) (California conviction for grand theft by taking property from the person of another, in violation of Penal Code § 487(c), constitutes a theft offense, and therefore is an aggravated felony under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), for deportation purposes, because California courts have held an intent permanently to deprive the owner of property is an essential element of this offense, and because the record of conviction – i.e., the charge and the absence of any codefendants – negated the possibility the defendant was convicted on an aiding and abetting theory which renders the statute divisible), opinion withdrawn and superseded by 417 F.3d 1022 (9th Cir. Aug. 2, 2005).
THEFT OFFENSE – CONTROLLING STOLEN MEANS OF TRANSPORTATION Nevarez-Martinez v. INS, 326 F.3d 1053 (9th Cir. Apr. 16, 2003) (Arizona conviction of controlling another’s means of transportation, knowing or with reason to believe it had been stolen, in violation of Arizona Revised Statute § 13-1814(A)(5), did not constitute a theft offense aggravated felony, under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), since the statute did not require intent to deprive the owner of the other property) (alternative holding).
THEFT OFFENSE – UNAUTHORIZED USE OF MEANS OF TRANSPORTATION Nevarez-Martinez v. INS, 326 F.3d 1053 (9th Cir. Apr. 16, 2003) (Arizona conviction of unauthorized use of a means of transportation, in violation of Arizona Revised Statute § 13-1814(A)(2), did not constitute a theft offense aggravated felony, under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), since the statute did not require intent to deprive the owner of the property) (alternative holding).
THEFT OFFENSE – UNLAWFUL USE OF VEHICLE United States v. Perez-Corona, 295 F.3d 996 (9th Cir. July 8, 2002) (Arizona conviction for unlawful use of a means of transportation, or joyriding, in violation of A.R.S. § 13-1803, did not constitute a “theft offense,” since there was no element of any intent to deprive the owner of his or her property (even if the deprivation was less than permanent), and the conviction was thus not an “aggravated felony” under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), for purposes of enhancing a sentence under U.S.S.G. § 2L1.2(b)(1)(A) for a conviction of illegal re-entry after deportation).
THEFT OFFENSE – SHOPLIFTING United States v. Sanchez-Sanchez, 333 F.3d 1065 (9th Cir. June 26, 2003) (Arizona conviction under Arizona Revised Statute 13-1805(I), a class 4 felony punishing anyone “who commits shoplifting and has previously committed or been convicted within the past five years of two or more offenses involving burglary, shoplifting, robbery, [etc.],” is not an aggravated felony offense under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), INA § 101(a)(43)(G), in light of Corona-Sanchez v. INS, 291 F.3d 1201 (9th Cir. June 6, 2002), since the offense is a felony only on the basis of a prior conviction-based sentence).
THEFT OFFENSE – POSSESSION OF STOLEN MAIL Randhawa v. Ashcroft, 298 F.3d 1148 (9th Cir. Aug. 13, 2002) (federal conviction for possession of stolen mail, in violation of 18 U.S.C. § 1708, held to be an “aggravated felony” triggering deportation, since the full range of conduct prohibited by the criminal statute fell within the aggravated felony definition of a “theft offense” under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G)).
THEFT OFFENSE – PETTY THEFT WITH PRIOR United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. June 6, 2002) (en banc) (California felony conviction of petty theft with a prior conviction, under California Penal Code § § 484(a), 666, is a divisible statute with respect to the aggravated felony generic definition of theft offense, under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G) since the California offense includes conduct such as theft of labor and solicitation of a false credit report that is not included within the federal aggravated felony definition of theft).
Lower Courts of the Ninth Circuit
THEFT OFFENSE – PETTY THEFT United States v. Esparza-Ponce, 7 F.Supp.2d 1084 (S.D.Cal. May 18, 1998) (California conviction of theft, in violation of California Penal Code § 484, could constitute an “aggravated felony” under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), for purposes of the illegal re-entry sentence enhancement, even though the California statute is overbroad with respect to the common-law aggravated felony definition of theft since the statute includes theft of services), affirmed, 193 F.3d 1133 (9th Cir. Oct. 19, 1999), cert. denied, 531 U.S. 842 (2000).
THEFT OFFENSE – ARMED ROBBERY Hernandez-Gonzalez v. Moyer, 907 F.Supp. 1224, 1227 (N.D.Ill. Dec. 8, 1995) (Illinois conviction of armed robbery constitutes a theft offense, with a sentence imposed of at least five years, and is therefore an aggravated felony under INA § 101(a)(43)(G), 8 U.S.C. § 1101(43)(G) for immigration purposes).
Eleventh Circuit
THEFT OFFENSE – GRAND THEFT Jaggerneuth v. U.S. Atty General, 432 F.3d 1346 (11th Cir. Dec. 19, 2005) (Florida conviction of grand theft, in violation of Fla. Stat. § 812.014(1), did not constitute aggravated felony theft, under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), for immigration purposes, because the statute was divisible as subsection (b) required only intent to appropriate use of the property, and the record of conviction did not establish that the defendant was convicted under subsection (a) which would have qualified as an aggravated felony).
THEFT OFFENSE – PETTY THEFT United States v. Christopher, 239 F.3d 1191 (11th Cir. Jan. 22, 2001), cert. denied, 122 S.Ct. 178 (2001) (Georgia conviction for misdemeanor shoplifting, with a maximum of one year, qualified as an aggravated felony under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), for enhancing illegal re-entry sentence pursuant to U.S.S.G. § 2L1.2(b)(1)(A), even though it was a misdemeanor under state law, since a 12-month suspended sentence was imposed).
BIA
THEFT OFFENSE – AUTO THEFT Matter of VZS, 22 I. & N. Dec. 1338 (BIA Aug. 1, 2000) (en banc) (California conviction for unlawful driving and taking of a vehicle in violation of California Vehicle Code § 10851 is a aggravated felony “theft offense” under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G) since “theft” for aggravated felony purposes is defined as a taking of property whenever there is criminal intent to deprive the owner of the rights and benefits of ownership, even if the deprivation is less than total or permanent).
§ A.43 Vehicles With ID Numbers Removed – Trafficking
§ A.43
[No Cases Yet: Check the on-line version of this Appendix for updates at: http://www.CriminalAndImmigrationLaw.com]
