BIA

RECEIPT OF 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 INA § 101(a)(43)(G) and (U), 8 U.S.C. 1101(a)(43)(G) and (U)).

SUBMITTING FALSE CLAIM - ATTEMPT
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)).

ATTEMPTED 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 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)).

First Circuit

ATTEMPTED THEFT - THEFT OFFENSE
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

AGGRAVATED FELONY - ATTEMPT
Pierre v. Holder, 588 F.3d 767 (2d Cir. Dec. 8, 2009) (a charge under INA 101(a)(43)(U) for attempt to commit fraud is not a "lesser included offense" under INA 101(a)(43)(M)(i); therefore where the victim suffered no actual loss, the DHS could not prove that the noncitizen was deportable under INA 101(a)(43)(M)(i)).

AGGRAVATED FELONY - FRAUD OFFENSES - ATTEMPT
Ljutica v. Holder, 588 F.3d 119 (2d Cir. Dec. 3, 2009) (federal conviction of attempted bank fraud, in violation of 18 U.S.C. 2, 1344, constitutes a fraud aggravated felony, under INA 101(a)(43)(U), 8 U.S.C. 1101(a)(43)(U), even though defendant was caught before any loss occurred), following Matter of Onyido, 22 I. & N. Dec. Dec. 522 (BIA 1999).

ATTEMPTED MURDER - 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).

ROBBERY - ATTEMPT
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).

POSSESSION OF COUNTERFEIT SECURITIES - ATTEMPT
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 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).

ATTEMPTED SALE - DRUG TRAFFICKING
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

AGGRAVATED FELONY " ATTEMPT
Singh v. Att'y General, 677 F.3d 503, 518 (3d Cir. Apr. 16, 2012) (Government must charge attempt under INA 101(a)(43)(U) in order to prevail on an "attempt" theory: "This is important because Singh has a due process right to receive notice of [t]he charges against [him] and the statutory provisions alleged to have been violated. 8 U.S.C. 1229(a); see also United States v. Torres, 383 F.3d 92, 104 (3d Cir.2004) (stating that, under the Constitution, aliens have right to receive notice of the charges against them and a fair opportunity to be heard). Further, since removability under (U) would involve questions that neither Singh nor this Court have had an opportunity to address, it appears that a sua sponte invocation of (U) at this late stage in the litigation would prejudice Singh's rights.").

Fifth Circuit

AGGRAVATED FELONY " ATTEMPT
United States v. Sanchez, 667 F.3d 555 (5th Cir. Jan. 10, 2012) (Texas conviction of attempted sexual assault of a child, in violation of Texas Penal Code 22.011(a)(2) and (c)(1), and 15.01(a), constituted a crime of violence, within the meaning of U.S.S.G. 2L1.2(b)(1)(A), for illegal reentry sentencing purposes; even though the Texas definition of attempt differs from the federal substantial step test of attempt, the Texas definition has not actually been applied more broadly than the federal test: Sanchez has failed to direct us to a case in which a Texas court applied the Texas attempt statute to criminalize conduct that would not satisfy the substantial step test. Sanchez has not demonstrated that as actually applied by a state court, the Texas attempt statute sweeps more broadly than the substantial step test for attempt.).

AGGRAVATED FELONY - ATTEMPT
United States v. Ellis, ___ F.3d ___, 2009 WL 783262 (5th Cir. Mar. 26, 2009) (North Carolina conviction of attempted common law robbery, "the felonious, non-consensual taking of money or personal property from the person or presence of another by means of violence or fear," see N.C. Gen. Stat. 14-1.5, 14-87.1 (setting punishments for attempt and robbery without defining them), presents a close question as to whether it qualifies as a "crime of violence" under USSG 4B1.2 for purposes of imposing a career offender sentence enhancement for a federal robbery conviction, because of the argument that North Carolina defines the term "attempted" more broadly (to require only "slight acts") than the "substantial step" required under the Model Penal Code and the majority of states, as well as 12 circuits; defendant forfeited right to bring this issue by failing to raise it before the district court); cf. United States v. Taylor, 529 F.3d 1232, 1237-38 (9th Cir.2008) (finding that Arizona's attempt statute, which used the phrase "any step," was broader than the federal definition, but that Arizona courts interpreted the statute to mean "substantial step"); United States v. Sarbia, 367 F.3d 1079, 1086 (9th Cir.2004) (Nevada's attempt statute and case law uses the "slight act" approach, but is coextensive with the federal, "substantial step" approach).

AGGRAVATED FELONY - ATTEMPT
United States v. Ellis, ___ F.3d ___, 2009 WL 783262 (5th Cir. Mar. 26, 2009) (the Model Penal Code 5.01(1) "substantial step" definition of "attempt" is the majority view, having been adopted by 12 circuits plus 26 states, and arguably should be used to define the term for purposes of the Taylor v. United States analysis in the career offender sentence enhancement context of USSG 4B1.2).

AGGRAVATED FELONY - ATTEMPT
United States v. Ellis, ___ F.3d ___, 2009 WL 783262 (5th Cir. Mar. 26, 2009) (North Carolina conviction of attempted common law robbery, "the felonious, non-consensual taking of money or personal property from the person or presence of another by means of violence or fear," see N.C. Gen. Stat. 14-1.5, 14-87.1 (setting punishments for attempt and robbery without defining them), presents a close question as to whether it qualifies as a "crime of violence" under USSG 4B1.2 for purposes of imposing a career offender sentence enhancement for a federal robbery conviction, because of the argument that North Carolina defines the term "attempted" more broadly (to require only "slight acts") than the "substantial step" required under the Model Penal Code and the majority of states, as well as 12 circuits; defendant forfeited right to bring this issue by failing to raise it before the district court); cf. United States v. Taylor, 529 F.3d 1232, 1237-38 (9th Cir.2008) (finding that Arizona's attempt statute, which used the phrase "any step," was broader than the federal definition, but that Arizona courts interpreted the statute to mean "substantial step"); United States v. Sarbia, 367 F.3d 1079, 1086 (9th Cir.2004) (Nevada's attempt statute and case law uses the "slight act" approach, but is coextensive with the federal, "substantial step" approach).

ATTEMPTED SEXUAL BATTERY - CRIME OF VIOLENCE
United States v. Meraz-Enriquez, __ F.3d __, 2006 WL 515477 (5^th Cir. Mar. 3, 2006) (Kansas conviction of attempted sexual battery, in violation of Kan. Stat. Ann. § 21- 3518, which punishes a sexual touching of a person who is too intoxicated to be able to give consent to the touching, is not a crime of violence for illegal re-entry sentencing purposes because the offense does not require the use of force).

Sixth Circuit

AGGRAVATED FELONY - ATTEMPT
United States v. Ellis, ___ F.3d ___, 2009 WL 783262 (5th Cir. Mar. 26, 2009) (the Model Penal Code 5.01(1) "substantial step" definition of "attempt" is the majority view, having been adopted by 12 circuits plus 26 states, and arguably should be used to define the term for purposes of the Taylor v. United States analysis in the career offender sentence enhancement context of USSG 4B1.2).

Seventh Circuit

AGGRAVATED FELONY - AUTO BURGLARY
Vaca-Tellez v. Mukasey, 540 F.3d 665 (7th Cir. Sept. 2, 2008) (Illinois conviction for auto burglary with intent to commit theft, in violation of 720 ILCS 5/19-1(a) is an aggravated felony attempted theft for immigration purposes).

AUTO BURGLARY - 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 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).

Eighth Circuit

AGGRAVATED FELONIES " ATTEMPT " MERE PREPARATORY CONDUCT HELD INSUFFICIENT
United States v Warnell Reid, ___ F.3d ___, 2014 WL 5314563 (8th Cir. Oct 20, 2014) (Missouri conviction for attempted burglary is not a violent felony under the Armed Career Criminal Act, 18 U.S.C. 924(e)(2), because Missouris statute can be violated by mere preparatory conduct; commentary to the Missouri attempt statute says that "reconnoitering the place contemplated for the commission of the offense" or "possession of materials to be employed in the commission of the offense, which are specially designed for such unlawful use" can be a substantial step sufficient for conviction of attempted burglary); see James v. United States, 550 U.S. 192 (2007) (Florida state courts stated attempt required "an overt act directed toward the entry of a structure" to qualify as attempted burglary, so the court here found it unnecessary to address whether "more attenuated conduct" -- such as the "casing" of a building or neighborhood -- would suffice, but suggested that a statute requiring only "preparatory conduct" might well not qualify).

Ninth Circuit

AGGRAVATED FELONY " ATTEMPT " DEFINITION
United States v. Gonzalez-Monterroso, ___ F.3d ___, 2014 WL 575952 (9th Cir. Feb. 14, 2014) (Delaware definition of Attempt, Del.Code tit. 11, 531(2), 532, is not a categorical match with attempt as defined under the U.S.S.G., because Delaware's statutory definition of "substantial step" is materially different from and encompasses more conduct than the federal generic definition).

AGGRAVATED FELONY " ATTEMPT " COMMERCIAL BURGLARY
Hernandez-Cruz v. Holder, ___ F.3d ___ (9th Cir. Jul.7, 2011) (California conviction of second-degree commercial burglary, in violation of Penal Code 459, did not constitute attempted theft aggravated felony, under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), under the modified categorical analysis, because [s]imply entering a commercial building . . . is not in itself a substantial step supporting attempted theft liability.).

AGGRAVATED FELONY - ATTEMPT
United States v. Saavedra-Velazquez, 578 F.3d 1103 (9th Cir. Aug. 21, 2009) (California definition of "attempt" under Penal Code 21a is coextensive with the federal definition of "attempt"; "Because Saavedra-Velazquez has been unable to point to a case in which the requirement of a "slight act" rather than a "substantial step" has led to a different outcome under California law than it would at common law, and because Nevada's "slight acts" standard appears virtually identical to California's, we hold that an "attempt" under California law is coextensive with an "attempt" at common law.").

CONVICTION - NATURE OF CONVICTION- CATEGORICAL ANALYSIS- REALISTIC PROBABILITY OF PROSECUTION
United States v. Saavedra-Velazquez, 578 F.3d 1103 (9th Cir. Aug. 21, 2009) (the decision in this case relied heavily on the "realistic probability of prosecution" test created by the United States Supreme Court in Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815 (2007). The court found that although the California language differed, no California case was presented demonstrating the application of any test broader than the federal "substantial step" requirement.

AGGRAVATED FELONY - ATTEMPT
United States v. Rivera-Ramos, 578 F.3d 1111 (9th Cir. Aug. 21, 2009) (New York definition of "attempt" under N.Y. Penal Law 110.00, though sounding broader than the federal definition of "attempt" is, in application, more stringent than the federal test; attempt to commit robbery is therefore categorically a crime of violence for illegal re-entry sentencing purposes).

AGGRAVATED FELONY - THEFT OFFENSE - AUTO BURGLARY CONSTITUTES ATTEMPTED THEFT
Ngaeth v. Mukasey, 545 F.3d 796 (9th Cir. Sept. 24, 2008) (California conviction for entering locked vehicle with intent to commit theft, in violation of California Penal Code 459 is an aggravated felony for immigration purposes as attempted theft).

AGGRAVATED FELONY - ATTEMPT - ARIZONA ATTEMPT IS BROADER THAN AGGRAVATED FELONY ATTEMPT
Rebilas v. Keisler, 506 F.3d 1161, 1164 (9th Cir. Nov. 2, 2007) (Arizona conviction of attempted public sexual indecency to a minor, in violation of ARS 13-1001 and 13-1403(B), forbids conduct that falls outside the federal definition of attempted sexual abuse of a minor under INA 101(a)(43)(A), (U), 8 U.S.C. 1101(a)(43)(A) and (U): "Arizona's definition of attempt under ARS 13-1001 is broader than the federal definition of attempt. While the federal definition of attempt requires the defendant to commit an overt act constituting a substantial step towards the crime, United States v. Morales-Perez, 467 F.3d 1219, 1222 (9th Cir. 2006), Arizona's definition of attempt is satisfied if the defendant "[i]ntentionally does or omits to do anything which ... is any step" in the crime. ARS 13-1001(A)(2) (emphasis added); see State v. Fristoe, 135 Ariz. 25, 658 P.2d 825, 829-30 (App.1982). Thus, attempted public sexual indecency to a minor under Arizona law is broader than attempted sexual abuse of a minor under 8 U.S.C. 1101(a)(43)(A) and (U)", and an attempted offense, under Arizona law, does not categorically constitute an "attempt" under the aggravated felony definition of attempt in INA 101(a)(43)(U), 8 U.S.C. 1101(a)(43)(U)).

AGGRAVATED FELONY - ATTEMPT - CALIFORNIA ATTEMPT IS ARGUABLY BROADER THAN FEDERAL AGGRAVATED FELONY ATTEMPT
Rebilas v. Keisler, 506 F.3d 1161, 1164 (9th Cir. Nov. 2, 2007) (California conviction of attempt to commit an offense "is broader than the federal definition of attempt. While the federal definition of attempt requires the defendant to commit an overt act constituting a substantial step towards the crime, United States v. Morales-Perez, 467 F.3d 1219, 1222 (9th Cir. 2006)," attempt under California Penal Code 21a [requiring "a direct but ineffectual act done toward its commission,"] is broader than the federal statute, since California case law has consistently required only a " slight act"); see People v. Superior Court (Decker), 41 Cal.4th 1, 8 (2007); People v. Tillotson, 157 Cal. App. 4th 517 (2007); People v. Anderson, 1 Cal.2d 687, 690 (1934); People v. Berger, 131 Cal. App. 2d 127 (1955); People v. Memro, 38 Cal.3d at p. 658, 698 (1985); People v. Dillon, 34 Cal.3d 441, 455 (1983); People v. Morales, 5 Cal.App.4th 917, 926 (1992); People v. Fiegelman, 33 Cal. App. 2d 100 (1939). Thanks to Kara Hartzler.

Since "slight acts" do not necessarily constitute the "substantial step" necessary to meet the federal definition of "attempt" that controls for purposes of immigration law, the statute is overbroad and the government bears the burden of proving that person is removable through the modified categorical analysis. Even if the state attempt statute is broader than the federal statute, under the modified categorical analysis a person can still be found removable where the record shows that the person committed an overt act constituting a "substantial step" towards commission of the underlying offense. Criminal defense counsel must keep the record of conviction vague, or describe only a slight act.

The government might argue that the issue is foreclosed by United States v. Sarbia, 367 F.3. 1079, 1082 (9th Cir. 2004), but there are strong arguments as to why Sarbia should not control, since the Ninth Circuit has made clear that its decisions interpreting USSG 4B1.1, like Sarbia, do not apply outside the context of that particular sentence guideline, because Commentary 1 is "not constrained by" the aggravated felony definition found at INA 101(a)(43) or by other statutes. United States v. Shumate, 329 F.3d 1026, 1030 n.5 (9th Cir. 2003); United States v. Vidal, 504 F.3d 1072, 1079 n.12 (9th 2007). As a result of this lack of "constrain[t]" found in USSG 4B1.2, the provision at issue in Sarbia, it is interpreted much more expansively than the definition of aggravated felony found in the Act. For example, the Ninth Circuit considers the list found at USSG 4B1.2, "aiding and abetting, conspiring, and attempting," as "non-exhaustive," and inclusive of other offenses such as solicitation. United States v. Shumate, 329 F.3d 1026, 1030 (9th Cir.2003). The aggravated 3 felony definition found at 8 U.S.C. 1101(a)(43)(U), on the other hand, is read as an exhaustive list, specifically excluding offenses such as solicitation. Leyva-Licea v. I.N.S., 187 F.3d 1147, 1150 (9th Cir. 1999). Sarbia is therefore inapplicable to the question of the definition of attempt found in the aggravated felony definition. INA 101(a)(43)(U), 8 U.S.C. 1101(a)(43)(U). The case which directly controls this Courts decision is Rebilas v. Keisler, which directly interprets the aggravated felony definition of "attempt." Even if Sarbia did apply in the immigration context, it has been overruled. Rebilas v. Keisler, 506 F.3d 1161, 1164 (9th Cir. Nov. 2, 2007). See Attorney General of New York v. Soto-Lopez, 476 U.S. 898, 901 (1986) (recognizing implicit overruling); United States v. Reed, 80 F.3d 1419, 1421-22 (9th Cir. 1996) (same). This conclusion is inevitable because to reconcile the two cases would be to find a meaningful difference between taking "any step" to commit a crime, and making "some act" to commit the crime. It is worth noting that Sarbia has also been implicitly overruled on another of its key holdings. In Sarbia, the Ninth Circuit held that shooting into an inhabited dwelling was a "crime of violence" under the Sentencing Guidelines, citing a 1993 decision holding that a similar California conviction (Penal Code 246) had been held to be a "crime of violence." Sarbia, 367 F.3d at 1088 (citing United States v. Weinert, 1 F.3d 889 (9th Cir. 1993 (per curiam)). In 2007, however, the Ninth Circuit held that shooting into an inhabited dwelling under California law was not categorically a "crime of violence." United States v. Narvaez-Gomez, 489 F.3d 970, 976 (9th Cir. 2007). In so holding, the Ninth Circuit cited neither Weinert nor Sarbia. Nonetheless, Narvaez-Gomez implicitly overruled those cases. Thanks to Rachael Keast.

ATTEMPTED SALE OF A CONTROLLED SUBSTANCE - DRUG TRAFFICKING
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).

Lower Courts of Ninth Circuit

ATTEMPTED SALE - DRUG TRAFFICKING
United States v. Jimenez, 921 F.Supp. 1054 (S.D.N.Y. Nov. 13, 1995), affd, 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).

Tenth Circuit

POSSESSION OF STOLEN PROPERTY - ATTEMPT
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).

ATTEMPTED POSSESSION - DRUG TRAFFICKING
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).

Eleventh Circuit

ATTEMPTED SALE OF A CONTROLLED SUBSTANCE - DRUG TRAFFICKING
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).