Safe Havens

Chapter

Summary Table of Contents

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“A” Number 5.11

Abortion 8.8

Abuse see Domestic Violence Offenses; Sex Offenses

Accessory After the Fact see Non-Substantive Offenses

Accessory Before the Fact see Non-Substantive Offenses, Aiding and Abetting

Accomplice Liability see Non-Substantive Offenses, Aiding and Abetting

Acquittal see Conviction

Addiction or Abuse see Controlled Substance Offenses

Address, Failure to Change 7.182

Adjustment of Status

As an Admission 4.34(D)

Conditional Permanent Resident 7.194

Inadmissibility 7.196

Defined 4.34(C)

Juvenile 7.196(D)

Violence Against Women Act 7.196(C)

Visa Fraud 7.196(B)

Administrative Findings, Deportation based on see Grounds of Deportation

Admission by Defendant 6.33

See also Plea; Record of Conviction

Conduct-Based Grounds of Removal 6.33(B)

Controlled Substance Offenses 6.33(C)

Crime of Moral Turpitude 6.33(C)

Admission to U.S.

Adjustment of Status as Admission 4.34(D)

Aggravated Felonies 7.6

Convictions Prior To 4.34

Crimes of Moral Turpitude 7.130

Defined 4.34(C)

Domestic Violence 7.163

Health Entry Conditions 7.195

Inadmissibility 4.34(B)

Returning Lawful Permanent Residents 4.34(C), 7.130, 7.190

Adopted Children, Foreign Born 4.5

Adult Court see Juvenile

Adultery see Sex Offenses

Advice of Immigration Consequences see Client

Agency Finding Based Grounds of Deportation see Grounds of Deportation

Aggravated Felonies

See also individual offenses

Adjustment of Status see Adjustment of Status

After Admission see Admission

Alienage see Alienage

Categorical Analysis 7.14 see also Record of Conviction

Conviction, Definition of see Conviction

Definition 7.14

Federal or State Law Violation 7.16

Divisible Statutes see Record of Conviction

Effective Date 4.14

Elements of Removal Ground 7.3-7.17

Federal Law, Application 7.16

Federal Offenses, Definition

“Described in” Federal Statutes 7.38

“Relating to” Federal Statutes 7.9(C), 7.17, 7.35(D), 7.38

Felony Offenses see Felony

Foreign Convictions 7.15 see also Foreign Convictions

Generally 7.2–7.104

Aggravated Felonies (cont’d)

Judicial Recommendation Against Deportation (JRAD) see Judicial Recommendation Against Deportation

Juveniles see Juveniles

Misdemeanor Offenses 7.20, 7.25(B)

Non-Substantive Offenses see Non-Substantive Offenses

Pardons see Pardons

Parentheticals 7.9(C), 7.17, 7.32(B), 7.38, 7.72(D)

Record of Conviction see Record of Conviction

Retroactivity 4.11

Safe Havens 5.37-5.38, 7.2, 7.29, 8.1

Sentence

Definition 4.11, 7.18, 7.25 see also Sentence

One-Year Rule

Aggravated Felonies Regardless of Sentence 7.18(A)

Offenses Defined in Terms of Potential Sentence 7.28

Offenses Requiring a One-Year Sentence 7.24

Techniques to Avoid a One-Year Sentence 7.26

State Convictions, Definition 7.16 see also Conviction

Substantive Offense 7.7 see also Non-Substantive Offenses

Vacating see Post-Conviction Relief

Aiding and Abetting see Non-Substantive Offenses

Alien Smuggling, Harboring, Transporting see Smuggling Immigrants Offenses

Alienage 4.4-4.7

American Indians Born in Canada 4.7, 5.7

Aggravated Felonies 7.4

Checking for Non-Deportable Status 5.7

Child Citizenship Act of 2000 (CCA) 4.51(F)

U.S. Citizens see Citizenship

U.S. Nationals 4.6, 5.7

American Indians see Alienage

Amnesty 5.12

Antique Firearm Exception see Firearms Offenses

Appeal

Direct Criminal Appeal 4.21

Immigration 3.4(E)

Late Criminal Appeal 4.23

Assault

See also Crime of Violence

Aggravated Felony 8.10(A)

Crime of Moral Turpitude 8.10(B)

Crime of Violence 7.41, 8.10

Domestic Violence 7.147, 8.10

Intent 8.10

On an Officer 8.10(B)

Safe Haven 9.16

Sexual Assault 8.84 see also Assault; Children, Offenses Committed Against; Sex Offenses

Simple 8.10(B)

Target Offenses 8.10(B)

Weapons 8.10(B)

Asylum 5.6(B), 7.184(D)

Attempt see Non-Substantive Offenses

Attempted Suicide 8.9

Attorney-Client Privilege see Working with Counsel

Automobile Burglary see Motor Vehicle Offenses

Bad Checks see Financial Crimes

Banking Offenses see Financial Crimes

Battery see Assault

Bastardy 8.75(B)

Bigamy 8.75(B)

Blackmail see Extortion

Board of Immigration Appeals 3.4(D)

Border Crossing 7.181

Bribery

As Aggravated Felony 7.35, 8.21(A)

Commercial 7.35

Crime of Moral Turpitude 8.21(B)

Gratuity 7.35(C), 9.40

Of Public Officials 7.35(B)

Safe Havens 9.40

Of Witnesses 7.36

Burden of Proof

Agency/Court Finding Based Grounds of Deportation 2.11

Clear and Convincing Evidence 5.24

Conduct Based Grounds of Deportation 2.9

In Deportation Proceedings 5.23

Public Charge 7.189(B)

Rule of Lenity 5.25

Standard of Proof 5.24

Burglary

Aggravated Felony with One-Year Sentence 7.37(F), 8.38(A)

Attempted Theft 7.37, 8.38(A) see also Theft; Attempt

Automobile 7.37(D), 9.34, 8.38

Building or Structure 7.37(D)

Crime of Moral Turpitude 8.38(B)

Crime of Violence 7.37, 8.38(A) see also Crime of Violence

Definition 7.37(A), 8.38

Divisible Statutes/Record of Conviction 7.37(B) see also Record of Conviction

Intent 7.37(E)

Possession of Burglary Tools 8.38, 8.70, 9.35

Safe Haven 9.33

Unlawful Entry 7.37(C)

Caseload, Ninth Circuit 3.4(E)

Categorical Analysis see Record of Conviction

Certified Copies see Victory, Documenting; Investigation

Change Address, Failure to 7.182

Charging Documents see Record of Conviction

Checklists

Conduct Based Grounds of Deportation 2.10

Conviction Based Grounds of Deportation 2.8, 4.2

Deportation Consequences of Specific Crimes, by Jurisdiction 5.1

General Safe Havens 4.3

Grounds of Deportation 2.14

Checks, Passing Bad see Financial Crimes

Child Citizenship Act of 2000 (CCA) see Alienage

Children, Offenses Committed Against

See also Sex Offenses; Crime of Violence

Aggravated Felony see Sex Offenses, Sexual Abuse of a Minor

Annoying or Molesting a Child 7.96(A), 7.98(B)-7.98(C)

Child Abandonment

Crime of Moral Turpitude 8.75(B)

Domestic Violence Offense 7.157(C)

Child Abuse 7.98, 7.157(B), 8.73 see also Domestic Violence Offense

Child Neglect 7.157(C)

Contributing to the Delinquency of a Minor 8.77(B) see also Juvenile

Incest 8.75(B)

Lewd Act with Child 7.96, 8.77

Pornography and Sexual Exploitation Offenses 7.38, 9.17

Sexual Assault 8.77, 8.84

Sex With a Minor 7.54

Chronology, Preparing see Client

Circuit Court Decisions see Safe Haven, Evaluating

Citizenship, United States 4.5

False Claim of 4.5, 7.183, 9.27

Citizenship, United States (cont’d)

Investigation to Establish 5.7

Non-Deportable 5.7

Clemency see Pardons

Client 5.3-5.5

Advice to 1.3

Chronology, Preparing 5.18

Citizenship 5.7

Concerns 5.4

Criminal Record 3.19, 5.9

Custody Status 3.22

Equities 3.23, 5.8

Goals 3.2, 3.5, 5.21

Immigration Record 3.20, 5.6

Immigration Status 5.6

Interview 5.3-5.9

Non-English Speaking 5.5

Rehabilitation 3.21

Trauma, Coping with 5.4(A)

Using this Book 1.3

Collateral Attack, Immigration Court see Conviction

Conditional Permanent Residence see Lawful Permanent Resident

Conduct-Based Grounds of Deportability see Grounds of Deportation

Conspiracy see Non-Substantive Offenses

Computer Access, Unauthorized 9.44 see also Financial Crimes

Conjunctive Statutes see Record of Conviction

Consular Processing 4.32(B)

Contempt 8.22

Contributing to the Delinquency of a Minor see Children, Offenses Committed Against

Controlled Substance Offenses

Addict or Abuser 7.137

Admission of Offense 6.33(C)

Aggravated Felony, Definition 7.64-7.71

Bunk 7.69(B)

Cocaine Base 7.22(C)

Conduct-Based Grounds of Deportability 2.9

Conviction Based Ground of Deportability 7.138-7.139

Elements 7.139

Prior Version 7.138(A)

Counterfeit Substances 7.69(B)

Crime of Moral Turpitude 8.2-8.6, 9.3, 9.10(B)

Date-Rape Drug 7.22(C)

Distribution

of a Controlled Substance 8.3(A)

of a Small Amount of Marijuana 4.27(B), 7.22(F), 7.69(C), 9.5

Driving under the Influence see Motor Vehicle Offenses

Expungements see Post-Conviction Relief

Federal/State Analogues 7.69, 9.3

Federal First Offender Act 4.27, 7.70 see also Post-Conviction Relief

Federal Offenses 7.19(A)

Federally Listed Substances 7.142-7.143

Felony Offense 7.19, 7.22, 7.66 see also Felony Offenses

Flunitrazepam 7.22(C)

General Safe Havens 7.140

Hashish 9.4(B) see also Marijuana

Hazardous Waste 9.11

Manufacturing 7.69(D), 7.69(F), 8.5, 9.4

Marijuana Exception 7.114 see also Controlled Substances, Distribution

Misdemeanor Offense 7.66

Simple Possession 7.114, 7.22(C)-(E)

Nature of Controlled Substance, Record of Conviction 9.3

Non-Substantive Offenses see Non-Substantive Offenses

Obstruction of Justice 7.8(B)

Paraphernalia 7.142(D)

Controlled Substance Offenses (cont’d)

Possession 4.27, 7.22(C)-(E), 8.3, 9.4

Aggravated Felony 8.3(A)

Crime of Moral Turpitude 8.3(B)

First Time 7.22(C), 7.22(E), 8.3

Subsequent 4.27(G), 7.22(D), 8.3

“Reason to Believe” Drug Trafficking Grounds of Inadmissibility 6.33(B), 8.5, 9.8

Reduction of Felony to Misdemeanor see Sentence

Regulatory Offenses 8.4, 9.6

Rehabilitative Relief see Post-Conviction Relief

Retroactivity 7.66(D), 7.69(E), 9.3(D)

Safe Havens 9.2-9.12

Schedules 9.3

Sentence 7.19, 7.22, 7.66

Felony 7.19, 7.22

No Incarceration Imposed 7.22(H)

Reduction to Misdemeanor 7.23 see also Post-Conviction Relief

Simulated Substance 7.69(B)

State/Federal Analogues 7.69, 9.3

Trafficking

Aggravated Felonies 7.65, 8.6(A)

Crime of Moral Turpitude 8.6(B)

Definition 7.68, 8.6

Requirement of Felony 7.22(G), 7.66

Transportation 7.69(G), 8.3, 8.5(A), 9.10(C)

For Personal Use 8.3, 9.10(C)

Unidentified Substance 7.67, 9.3

Conviction

Acquittal 4.15

Aggravated Felony 7.5

Appeal see Appeal

Avoiding a Conviction 2.4, 5.27

Charges see Record of Conviction

Collateral Attack in Immigration Court 2.7, 4.28(B)

Consular Processing 4.32(B)

Conviction Based Grounds of Deportation see Grounds of Deportation

Date of Conviction 6.3(B)

Defective 4.30-4.33

Deferral

Deferred Adjudication 4.16(B)

Deferred Entry of Judgment 4.16(B), 6.3(B), 7.25(B)

Deferred Prosecution 4.17

Deferred Sentence 4.19, 5.45(A)

Deferred Verdict 4.18

Definition 4.11, 4.14

Dismissed Charges 4.13(B), 4.16

Diversion Programs 4.16(B)

Expungements see Post-Conviction Relief

In Absentia Convictions 2.7(D), 4.32

Fact of Conviction 2.7(A)

Finality 4.20-4.23, 4.35(K), 6.32(B)

Foreign Convictions see Foreign Convictions

Juvenile Delinquency Findings see Juveniles

Nature of Conviction 2.7(A)

Non-Conviction Dispositions see Non-Conviction Dispositions

Non-Deportable Convictions see Non-Deportable Convictions

Prior to Admission to U.S. 4.34

Post-Conviction Relief see Post-Conviction Relief

State Rehabilitative Relief see Post-Conviction Relief

Vacated Convictions see Post-Conviction Relief

Conviction Based Grounds of Deportation see Grounds of Deportation

Counsel see Working with Counsel

Counterfeit Drugs see Controlled Substance Offenses

Counterfeiting 7.40, 8.23

Court Finding Based Grounds of Deportation see Grounds of Deportation

Court Records see Investigation; Record of Conviction

Crime of Moral Turpitude

Admissions of Crimes of Moral Turpitude 6.33(C)

Definitions 7.105, 7.106(B)

Deportability

One Crime of Moral Turpitude 1.105(A), 7.107(A), 7.125-7.130

5/10 Year Requirement 7.130

Effective Date 7.128, 7.129

Elements 7.126

Former Versions 7.129

Prior Conviction, Effect on Sentence 7.128(B)

Reduction to Misdemeanor 7.12(C)

Sentence Requirement 7.127, 7.128(A)

Multiple Crimes of Moral Turpitude 7.107(E), 7.131-7.135

Elements 7.132

Retroactivity 7.132

Single Scheme 7.133

Burden of Proof 7.133(B)

Strategy 7.133(C)

Intent see Intent

Malum Prohibitum/In Se 7.108(C)

Non-Substantive Offenses 7.135 see also Non-Substantive Offenses

Petty Offense Exception 5.44, 5.45(A)

Prior Grant of Immigration Relief, Effect of 7.135

Prior to Admission 7.130

Record of Conviction see Record of Conviction

Regulatory Offenses 7.108, 8.32

Safe Havens 5.39, 7.105-7.135, 8.1

Sentence Requirements 7.127-7.129

Target Offenses 7.120, 8.10(B), 8.70, 9.33

Waivers, Effect of 7.134

Crime, Seriousness of 3.14

Facts 3.15

Offense of Conviction 3.16

Sentence 3.17 see also Sentence

Safe Havens 9.13-9.19

Crimes of Violence 7.41-7.60

Attempt 7.41 see also Non-Substantive Offenses

Definition 7.42, 7.44, 7.51

Felony Offenses 7.19, 7.21, 7.52 see also Felony

Force Requirement 7.45-7.47, 7.54-7.58, 8.10(A)

Intent Requirement 7.49, 7.57, 7.59, 8.10(A) see also Intent

Juvenile Offenders 4.10(C)

Misdemeanor Offenses 7.20, 7.43

Political Offense Exception 7.50

Prisoner Property 7.48, 7.56

Safe Havens 9.13-9.19

Sentence Requirement 7.43, 8.10(A)

Sentencing Guideline Definition 7.42

Sex with a Minor 7.54, 7.101

Substantial Risk Requirement 7.54

Threat 7.46

18 U.S.C. § 16(a) 7.44-7.50

18 U.S.C. § 16(b) 7.51-7.59

Criminal History, Obtaining see Investigation

Criminal Proceedings, Rights During 4.11

Currency Violations see Financial Crimes

Custody see Client

Deceit see Fraud

Defense Counsel see also Working with Counsel

How to Use This Book 1.9-1.11

Deferrals see Conviction

Delay of Mail 8.29, 9.36

Delinquency Findings see Juveniles

Department of Motor Vehicles, Records see Investigation

Deportation Grounds see Grounds of Deportation

Deportation Proceedings

Postponing 4.27(J), 4.28(C)

Destructive Devices see Firearms Offenses, Deportability

Disjunctive Statutes see Record of Conviction

Dismissed Counts

Definition of Conviction see Conviction

Not Part of Record of Conviction see Record of Conviction

Disorderly Conduct 8.24

Distribution of a Controlled Substance see Controlled Substances

Disturbing the Peace 5.33, 9.18

Diversion Programs see Conviction

Divisible Statute Analysis see Record of Conviction

Document Fraud

See also Fraud

Administrative Finding Based Ground of Deportation 2.13, 7.184

Aggravated Felony 7.63, 8.58(A)

Conviction Based Ground of Deportability 7.63, 7.186, 7.187

Crime of Moral Turpitude 8.58(B)

Immigration Related 7.184-7.187, 8.58

Registration 7.186

Documents see Investigation; Victory, Documenting

Domestic Violence Convictions

Against the Person 7.155

Aggravated Felony 7.148(E), 8.73, 8.74

Crime of Moral Turpitude 7.148(E), 8.73, 8.74, 8.75(B)

Crime of Violence 7.150(B), 7.153 see also Crime of Violence

Effective Date 7.152

Elements 7.147(C), 7.148

Foreign Conviction 7.147(B)

General Safe Havens 7.149

Listed Offenses 7.150

Non-Substantive Offenses 7.151 see also Non-Substantive Offenses

Record of Conviction 7.148(F), 7.150(C), 7.154(C) see also Record of Conviction

Relationship to Other Grounds of Removal 7.148(E)

Safe Havens 9.13-9.19

Specific Offenses

Child Abandonment 7.157(C), 8.75(B)

Child Abuse 7.157(B), 8.73

Child Neglect 7.157(C)

Domestic Violence 8.74 see also Crimes of Violence

Sexual Assault and Battery see also Sexual Abuse of a Minor

Stalking 7.156, 8.17

Victim, Definition 7.148(D), 7.154-7.155

State Law 7.154(B)

Record of Conviction 7.154(C)

Domestic Violence, Temporary Restraining Order Violations 2.12, 7.158-7.159

After Admission 7.163

Application to Juveniles 7.158(B)

Effective Date 7.164

Elements 7.159

Finding by Court Requirement 7.162-7.163

No Jurisdiction 7.162

Vacated Order 7.160(C)

Validity of Order 7.160(B)

Injunction Requirement 7.160(A)

Portion Violated 7.165

Protection Order Requirements 7.160, 7.165

Driving Under the Influence see Motor Vehicle Offenses

Drug Abuse and Addiction see Controlled Substance Offenses

Drug Offenses see Controlled Substance Offenses

Drunk Driving see Motor Vehicle Offenses

Embezzlement 8.39

Endangerment 8.11

Enemy Citizens During Wartime 7.202

Entry into U.S. 7.197 see also Admission to U.S., Illegal Entry

Equities of Client see Client

Escape 8.25

Espionage 7.203-7.204, 7.207

Evaluating a Safe Haven see Safe Haven, Evaluating

Ex Post Facto 5.54 see also Retroactivity

Export Violations 7.166 see also Controlled Substances

Explosive Materials see Firearms Offenses

Expungements see Post-Conviction Relief

Extortion 7.72, 8.40

Extrajudicial Killing 7.205

Facilitation see Non-Substantive Offenses

Facts

Admitting see Admission by Defendant; Plea; Record of Conviction

Fact of Conviction see Record of Conviction

Factual Basis see Plea

Foreign Convictions 6.22(B)

Irrelevance of see Record of Conviction

Failure to Appear in Court 7.73

To Face Charges 7.74

To Serve Sentence 7.75

Failure to Change Address 7.182

False Claim of U.S. Citizenship see Citizenship

False Documents to Obtain Immigration Benefit see Document Fraud

False Statement Offenses 8.49

See also Fraud

Aggravated Felony 8.50

Crime of Moral Turpitude 8.50

Insurance Claim 9.24

Federal Bureau of Investigation see Investigation

Federal First Offender Act (FFOA) see Controlled Substance Offenses

Federal Juvenile Delinquency Act (FJDA) see Juveniles

Federal Youth Corrections Act see Juveniles

Felony Offenses

Federal Definition 5.48, 7.19-7.22

Controlled Substance Convictions 7.19-7.22 see also Controlled Substance Offenses

Crime of Violence 7.19, 7.21

Effect on Immigration Status 5.47

Immigration/Sentencing Split 5.49(C)

Reduction to Misdemeanor 7.23 see also Sentence

State Definition 7.19-7.22, 7.27(B)

FFOA see Controlled Substance Offenses

Financial Crimes 8.26, 9.38-9.46

Aggravated Felonies 8.26(A)

Banking Regulation Violations 9.39

Currency Violations 8.26(B)

False Insurance Claim 9.24

Gratuity see Bribery

Loan Sharking 8.26(B)

Passing Bad Checks 8.43

Price Fixing 9.41

Securities Fraud 8.26(B)

Structuring Financial Transactions 8.26(B), 9.42

Tax Offenses see Tax Offenses

Unauthorized Computer Access 9.44

Unlicensed Money Transmitting Business 9.45

Finality of Conviction see Conviction

Firearms Offenses

Aggravated Felony 7.76-7.78, 8.54(A)

Effective Date 7.78(B)

Federal Listed Specific Firearms Offense 7.78

Firearms Trafficking 7.77, 8.54(A)

In Destructive Devices 7.62, 7.77, 7.78(B)

Internal Revenue Offenses 7.78(B)

Ammunition Offenses 7.77-7.78(B), 7.174

Conviction Based Ground of Deportability 7.167-7.179

Ammunition 7.174

Antique Firearm Exception 7.173

Effective Date 7.179

Elements 7.168

General Safe Havens 7.169

Non-Substantive Offenses 7.176 see also Non-Substantive Offenses

Sporting/Cultural Use Exception 7.175

Unidentified Weapon 7.172, 9.21

Unlisted Offense 7.170

Crime of Moral Turpitude 7.108(E), 8.54(B)

Definition of Firearm 7.78(B), 7.171, 7.173, 7.174

Controlled Substance Offenses see Controlled Substance Offenses

Crime of Violence see Crime of Violence

Export Violations see Export Violations

General Safe Havens 7.169

Non-Substantive Offenses see Non-Substantive Offenses

Safe Havens 9.20-9.22

Sentencing Enhancements 5.57(B), 7.25

Specific Offenses 7.76-7.78

FOIA see Investigation

Foreign Convictions 4.12, 4.20, 4.35

Aggravated Felonies 4.35(B), 7.15

Applicable Standards 4.35(C)

By Member of U.S. Armed forces 4.35(J)

Criminal Procedures 4.35(D)

Domestic Violence 7.147(B)

Expungements 4.27(H), 4.35(G)

Finality 4.35(K)

Judicial Recommendations Against Deportation 4.35(F)

Juveniles 4.35(I)

Pardons 4.35(H)

Post-Conviction Relief 4.35(E)

Sentence 4.35

Foreign Agent Registration Act Violation 7.207

Foreign Policy 7.208

Forgery 7.79

Aggravated Felony 7.79, 8.51(A)

Crime of Moral Turpitude 8.51(B)

Fornication see Sex Offenses

Fraud

See also False Statements

Against the Government 8.27

See also Document Fraud

Aggravated Felony 8.27(A)

Crime of Moral Turpitude 8.27(B)

Intent 8.27(A) see also Intent

Loss 8.27(A) see also Fraud

Aggravated Felony 7.80, 8.41(A)

See also False Statement Offenses

Deceit 7.61, 7.81

Definition 7.81

Intent Requirement 7.81

Intent 7.82(C)-7.82(D)

Proof 7.82(B)

Loss Requirements 7.82

Multiple Count Convictions 7.82(A)

Restitution 5.51, 6.40, 7.82(E)-(G)

Crimes of Moral Turpitude 8.27, 8.41(B)

Document 2.13, 7.184, 7.186

Fraud (cont’d)

Immigration Fraud see Document Fraud

Insurance Claim 9.24

Marriage 7.185

Registration 7.186

Safe Havens 9.23-9.25

Tax Fraud 8.34

Telephone Fraud

Visa 7.185

Freedom of Information Act (FOIA) Requests see Investigation

Full Faith and Credit 4.28(B)

FYCA see Juveniles

Gambling 8.28

General Intent see Intent

Genocide 7.209

Goals of Client see Client

Government, Crimes Against 8.20

Green Card see Lawful Permanent Resident

Gross Negligence see Intent

Grounds of Deportation

Aggravated Felonies 5.37-5.38, 7.2-7.104

Based on Agency/Court Finding 2.11-2.13

Burden of Proof 2.11

Checklist 2.14

Conduct Based 2.9

Burden of Proof 2.9

Caveat 1.16

Checklist 2.10

Controlled Substance Related Grounds 7.137-7.157

Conviction Based 2.7, 5.41

Checklist 2.8, 4.2

Screening Questioning 5.42

Crimes of Moral Turpitude 5.39, 7.105-7.136

Document Fraud, Administrative Finding see Document Fraud

Domestic Violence 7.147-7.157

Domestic Violence Protection Order Violations 2.12, 7.158-7.165

Firearms 7.167-7.174

High Speed Flight 7.188

Immigration Related Grounds 7.180-7.192

Checklist 2.8, 2.10

Immigration Status Violation Grounds 7.193-7.200

Checklist 2.10

Level of Offense, Grounds Affected by 5.47

Non-Immigrant Status Violation 7.198

Security Grounds 7.200-7.224

Checklist 2.8, 2.10

Grounds of Inadmissibility 1.17, 4.34(B)

Guilty Plea see Plea

Habeas Corpus on Immigration Issues 3.4(F)

Hashish see Controlled Substance Offenses

Hazardous Waste Disposal see Controlled Substance Offenses

Health Entry Conditions 7.195

High Speed Flight 7.188

Homicide see Murder

Homosexual Conduct see Sex Offenses

How to Use This Book

Caveats 1.12-1.19

Criminal Counsel 1.9-1.11

Immigration Counsel 1.4-1.8

Noncitizens 1.3

“Illegal” Alien, see Undocumented Alien

Illegal Entry Offenses 7.197, 7.199

See also Inadmissibility

Aggravated Felonies 7.83, 8.57(A)

Avoiding 3.4(G)

Crime of Moral Turpitude 8.57(B)

Immigration Attorneys

How to Use This Book 1.4-1.8

Working with see Working with Counsel

Immigration Related Grounds of Deportability see Grounds of Deportation

Immigration Status 3.20

See also Alienage; Lawful Permanent Resident (LPR)

Client Interview see Client

Questionnaire see Client

Violation of Ground of Deportation see Grounds of Deportation

In Absentia

Consular Processing 4.32(B)

Criminal Conviction 2.7(D), 4.32

Inadmissibility

Admission of a CMT see Admissions by Defendant

At Adjustment of Status 7.196

At Entry 7.197

Caveat 1.18

Crimes of Moral Turpitude 5.44

Money Laundering 7.86(G)

Petty Offense Exception 5.44

Smuggling Immigrants 7.32(D)

Waivers 7.197

Incest see Children, Offenses Committed Against

Indecency see Children, Offenses Committed Against; Sex Offenses

Infraction see Non-Criminal Dispositions

Insanity, Not Guilty by Reason of see Plea

Insurance Claim, False see Financial Crimes

Intent

Crime of Moral Turpitude

General Intent 7.113

Gross Negligence 7.116, 8.10(B)

Intent Required 7.110, 8.10(B)

Intent to Break Law 7.114

Intent to Commit Non-CMT 7.120

Intent to Temporarily Deprive 7.121

Knowledge 7.118

Loss to Victim 7.82(C)-7.82(D)

Malice 7.122

Negligence 7.115

Recklessness 7.117

Safe Intents 7.111

Strict Liability 7.112

Willfulness 7.118

Crime of Violence 7.49, 7.59, 8.10(A)

Negligence 7.49(A)

Recklessness 7.49(B)

Strict Liability 7.49(A)

Willfulness 7.49(B)

Definitions of Intent 7.123

Internet Offenses see Children, Offenses Committed Against, Pornography

Interpreters, Communication with Client 5.5

Interview, First Client see Client

Investigation 5.2-5.17

Certified Copies 5.17

Chronology 5.18

Citizenship 5.7

Client Interview see Client

Generally 5.2

Obtaining Information

Amnesty 5.12

Criminal Records 5.9, 5.13-5.17

DMV Records 5.16

FBI Criminal Records 5.14

State Criminal History 5.15

Equities 5.8

Freedom of Information Act 5.11

From Criminal Court 5.17

From DHS 5.10-5.12

Immigration Status 5.6-5.7

Transcripts 5.17

Involuntary Manslaughter

Aggravated Felony 7.49(B)

Crime of Moral Turpitude 7.115, 8.14

Joyriding see Motor Vehicle Offenses

Judgment, Criminal 6.38, 6.46

Judicial Recommendation Against Deportation (JRAD) 4.25, 7.27(C)

Effective Date of Repeal 4.25(C)

Foreign see Foreign

Immigration Effect of 4.25(A)

Requirements 4.25(B)

Jurisdiction

Criminal Court 2.7(C), 4.31

Governing 3.8

Juveniles

Adult Convictions of Juvenile Offenders 4.10(B)-4.10(G)

Delinquency Findings, Immigration Consequences 4.10

Domestic Violence Temporary Restraining Order Violation 7.158(B)

State Statutes, Comparison to FJDA 4.10(B)-4.10(G)

Federal Juvenile Delinquency Act 4.10(B)-4.10(G)

Federal Youth Corrections Act 7.25(B)

Foreign Convictions 4.35(I)

Health Entry Condition Violations 7.195(B)

Inadmissibility Waivers 7.196(D), 7.196(E)

Misdemeanors 4.10(C), 4.10(F)

Youthful Offender Sentence 5.45(B)

Kidnapping 7.84, 8.12

Knowledge see Intent

Larceny see Theft

Lasciviousness see Sex Offenses

Lawful Permanent Resident (LPR)

Adjustment of Status as an Admission 4.34(D)

Conditional Permanent Residence 7.194

Immigration Consequences to Avoid 5.6(B)

Returning LPRs Seeking Admission 4.34(B), 5.6(B), 7.130, 7.190

Lenity, Rule of see Burden of Proof

Libel 8.13

LIFE Act 4.5(E)

Liquor Law Offenses 7.108(D), 8.32

Loan Sharking see Financial Crimes

Loitering 8.24(B), 8.80(B)

Loss see Fraud

Mail Offenses 8.29, 9.36

Malice see Intent

Malum Prohibitum/In Se see Crimes of Moral Turpitude

Manslaughter 7.49(B), 7.115, 8.14

Marijuana see Controlled Substance Offenses

Marriage Fraud see Fraud

Military Offenses 8.30

In Foreign Country 4.35(J)

Misdemeanors

See also Felony

Aggravated Felonies 7.20, 7.25(B)

Controlled Substance Offenses 4.27(B), 7.22, 8.3, 9.4, 9.5,

Crimes of Moral Turpitude 7.128-7.129

Crimes of Violence 7.41

Definition 5.49, 7.25(B) see also Felony

Effect on Immigration Status 5.47

Felony/Misdemeanor 7.19

Infractions 4.11

Juveniles Transferred to Adult Court 4.10(C), 4.10(F)

Reduction of Felony to 7.23, 7.27(B) see also Sentence

Misdemeanors (cont’d)

State Label 7.19, 7.25(B)

Misprision of a Felony see Non-Substantive Offenses

Money Laundering

Aggravated Felony 7.86 see also Fraud, Loss Requirements

Inadmissibility 7.86(G)

Money Transmitting Business, Unauthorized see Financial Crimes

Motor Vehicle Offenses

Burglary of Automobile 7.37(D), 8.62, 9.34 see also Burglary

Driving Under the Influence 8.61

Joy Riding 8.62

Possession of Stolen Vehicle 8.62 see also Receiving Stolen Property

Theft-Related Offenses 8.62 see also Theft

Vehicular Homicide 8.62 see also Manslaughter

Murder 7.87, 8.15

See also Extrajudicial Killing

Aggravated Felony 7.87

Narcotics see Controlled Substance Offenses

National of the United States see Alienage

National Security Offenses

See also Grounds for Deportation, Security Grounds

Aggravated Felonies 7.88

National Security Violation 7.210

Native Americans Born in Canada see Alienage

Naturalization see Alienage; Citizenship

Nazi Persecutors 7.211

Negligence see Intent

Negotiating a Safe Haven 6.2

Bargaining Power, Maximizing 6.2(A)

Court Interests 6.16

Date of Conviction 6.2(B)

Date of Offense 6.2(C)

Equities, Using 6.8

Plea Bargaining 6.4-6.7

Prosecution Interests see Prosecutorial Interests

Record of Conviction 6.3

Sentence 6.2(A)

Talking Points 6.4-6.7

Neutrality Law Violation 7.212

No Contest Plea see Plea

Non-Conviction Dispositions

See also Convictions

Alienage see Alienage

Checklists 2.4, 4.3

Generally 2.4, 4.8

Infractions 4.11, 5.50

Juvenile Delinquency see Juveniles

Non-Crimes 4.11-4.12

Violations 4.11, 5.50

Non-Deportable Convictions, Obtaining 5.28

Adverse Criminal Consequences 5.29(C)

Range of Possibilities 5.29

Charged Offenses 5.30

Factual Basis for Plea 5.29(B), 5.34

Lesser-Included Offenses 5.31

Reasonably-Related Offenses 5.32

Unrelated Offenses 5.33

Verification of Safety 5.20(A), 5.35-5.36

Case Support 5.40

Not an Aggravated Felony 5.37-5.38

Not a Crime of Moral Turpitude 5.39

Procedure 5.36

Non-Immigrant Consequences to Avoid 5.6(B)

Non-Immigrant Status Violation 7.198

Non-Substantive Offenses 8.63-8.71, 9.31

Accessory After the Fact

Aggravated Felony 7.8, 7.30, 7.31, 8.65

Non-Substantive Offenses (cont’d)

Accessory After the Fact (cont’d)

Controlled Substance Offenses 7.8, 7.141, 7.142, 9.8

Crimes of Moral Turpitude 7.107(B), 8.65

Aiding and Abetting

Aggravated Felony 7.9, 7.32(C), 7.103(D), 8.64

Controlled Substance Offenses 7.141

Crimes of Moral Turpitude 8.64

Attempt

Aggravated Felony 7.7, 7.34, 8.66

Controlled Substance Offenses 7.138(A), 7.141

Crimes of Moral Turpitude 7.135, 8.66

Firearms 7.178

Conspiracy

Aggravated Felony 7.7, 7.39, 8.67

Controlled Substance Offenses 7.141

Crimes of Moral Turpitude 7.107(D), 7.135, 8.67

Firearms 7.178

Facilitation

Aggravated Felony 7.10

Controlled Substance Offenses 7.141

Crimes of Moral Turpitude 7.141

Firearms 7.170

Generally

Aggravated Felony 7.7

Controlled Substance Offenses 7.141

Crimes of Moral Turpitude 7.107, 8.70

Firearms 7.177

Not Enumerated in the INA 7.7(B)

Misprision of a Felony

Aggravated Felony 7.8, 7.11(A), 7.85, 8.68, 9.30

Controlled Substance Offenses 7.8(B), 7.11(D), 7.142(B), 8.4, 9.9

Crime of Moral Turpitude 7.11(B), 7.107(C), 8.68, 9.30

Other Non-Substantive Offenses 7.13

Solicitation

Aggravated Felony 7.12, 7.100, 8.69

Controlled Substance Offenses 7.69(G), 7.141, 7.142(B), 8.5(A), 9.10

Crime of Moral Turpitude 8.69, 8.82

Target/Preparatory Offenses see Target/Preparatory Offenses

Nuisance 8.42

Nunc Pro Tunc 4.25, 7.27(B)

Obscenity 8.81

Obstruction of Justice

Accessory after the Fact see also Non-Substantive Offenses

Aggravated Felony 7.89, 8.31

Crime of Moral Turpitude 8.31

Misprision of a Felony see Non-Substantive Offenses

Overthrow of Government 7.213

P/Q

Pardons 4.26

Foreign 4.26(E)

Grounds Affected By 4.26(C)

Particular State 4.26(F)

Requirement 4.26(D)

Parentheticals 7.17

Particularly Serious Crime see Asylum

Passport, Unauthorized Use 9.27

Perjury

Aggravated Felony 7.90, 8.52(A)

Crime of Moral Turpitude 8.52(B)

Petty Offense Exception to Inadmissibility see Crime of Moral Turpitude

Plea

See also Record of Conviction

Admissions of Fact 6.33-6.35

Factual Basis Stipulation 6.34

Guilty Plea 6.28

Negotiation see Negotiating a Safe Haven

No Contest 6.29

Not Guilty by Reason of Insanity 4.15, 6.31

Oral Statements by Defendant 6.35

Plea Agreement 6.25

Binding Nature of 6.25(C)

Plea Hearing 6.26

Slow Plea 4.22, 6.32

Without Admission of Guilt 6.30

Wording of 6.27, 6.33

Plea Bargain

Defense Negotiation Tactics see Negotiation

Enforceability 6.25(C)

Police Reports see Record of Conviction

Political Offense see Crime of Violence

Pornography, see Children, Offenses Committed Against

Possession, Drugs see Controlled Substance Offenses

Possession, Firearms, see Firearms Offenses

Post-Conviction Relief

Appeal see Appeal

Effective Order Vacating the Conviction 4.28

Caveat 1.19

Counsel, Role of see Working with Counsel

Effect on Finality 4.20-4.23

Expungement 4.27, 4.28(H)

Controlled Substance Offenses 7.70, 7.145, 9.7

Foreign see Foreign

Generally 4.24

Immigration Effect of 4.28

Judicial Recommendations Against Deportation see Judicial Recommendations Against Deportation

Jurisdictional Challenges see Jurisdiction

Pardons see Pardons

Postponing Deportation 4.27(J), 4.28(C)

Sentence see Sentence

Strategy see Working with Counsel

Trial Counsel’s Duty to Cooperate see Working with Counsel

Vehicles for Relief 4.28

Present Without Admission 7.199

President, Threats Against 7.221

Price Fixing see Financial Crimes

Principal see Non-Substantive Offenses

Probation or Parole

See also Sentence

Controlled Substance Offenses 4.27, 7.22(H)

Interview 6.36 see also Record of Conviction

Not Counted as Part of Sentence 5.45(A), 7.22(H), 7.25

Order 6.48

Property Damage 8.44

Reports, as Not Part of Record of Conviction see Record of Conviction

Violation, added to Sentence Calculation 7.25(B)

Proof see Burden of Proof

Property Damage 8.36, 8.44

Prosecutorial Discretion

Criminal 6.8-6.15

Immigration 3.4(A)

Prosecutorial Interests 6.8

Fairness 6.14

Least Work 3.13, 6.13

Long Sentence 6.10

Protecting the Victim 6.15

Prosecutorial Interests (cont’d)

Quick Disposition 3.13, 6.12

Serious Offense 6.9

Simple Disposition 3.13, 6.11

Prostitution

Aggravated Felony 7.91, 8.82(A)

Bar to Good Moral Character 7.91(H)

Conduct-Based Ground of Inadmissibility 7.91(H)

Crime of Moral Turpitude 8.82(B)

Protection Order see Domestic Violence

Public Charge 7.189

Public Nuisance 9.18

Public Safety 7.214

Racketeering Offenses 7.86(G), 7.95, 8.33

Rape see Sex Offenses

“Reason to Believe” Trafficking Grounds of Inadmissibility 5.1(B), 6.33(B), 8.5, 9.8

Receiving Stolen Property

Aggravated Felony 7.93, 8.45(A)

Crime of Moral Turpitude 8.45(B)

Recklessness see Intent

Record of Conviction

Categorical Analysis 6.19

Creation of Safe Record 6.3, 6.17-6.18

Divisible Statute 6.20

Irrelevance of Facts 3.15, 6.22

Limitation to Record of Conviction 6.21, 6.25(D)

Non-Divisible Statute 6.19

Divisible Statute Analysis, Resort to

Definition 6.20(A)

Discrete Subsections 6.20(B)

Disjunctive Subsections 6.20(C)

Procedure 6.20

When Applicable 6.20(A)

When Not Allowed 6.19

Documents Included 6.23

Charge 6.24(A), 6.43

Judgment 6.38

Jury Verdict 4.13(A), 6.23, 6.28

Plea Agreement 6.25 see also Plea

Plea Hearing 6.26

Sentence 6.37, 6.39

Sentence Hearing 6.37

Statements by Defendant 6.25(A), 6.34, 6.35

Stipulation to Other Documents 6.34(B)

Documents Not Included

Dismissed Counts 6.24(C)

Plea to Lesser Crime 6.24(C)

Police Reports 6.34(C)

Probation Reports 6.36

Sentencing Enhancements 6.24(B)

Domestic Violence 7.148(F), 7.154(C)

Elements of Safe Record of Conviction 6.23

Charge 6.24

Judgment 6.38

Plea Agreement 6.25 see also Plea

Plea Hearing 6.26 see also Plea

Probation Interview 6.36

Restitution 6.40

Sentence Hearing 6.37 see also Sentence

Sentence Imposed 6.39 see also Sentence

Fact vs. Nature of Conviction 2.7(A), 6.22(A)

Factual Admissions, Avoiding 6.33

General Principles 6.18

Obtaining see Investigation

Restitution see Fraud

Surplusage 6.22, 6.24(A), 9.33

Reduction of Felony to Misdemeanor see Controlled Substance Offenses; Sentencing

Re-Entry After Removal see Illegal Entry Offenses

Refugees see Asylum

Registration Fraud see Fraud

Regulatory Offenses 7.108, 8.32

Rehabilitation see Client

Rehabilitative Relief see Post-Conviction Relief, Expungement

“Related to” Language see Aggravated Felony

Relief from Removal 1.18, 2.15, 3.4(C)

Religious Freedom Violation 7.215

Res Judicata 3.5, 4.28(B), 6.33(B), 7.184(B), 7.197(A)

Resisting Arrest 8.10(B)

Restitution see Fraud, Loss Requirements

Retroactivity

Aggravated Felony Definition see Aggravated Felony

Controlled Substances see Controlled Substance Offenses

Crime of Moral Turpitude see Crime of Moral Turpitude

Returning LPRs Seeking Admission see Lawful Permanent Residents

Revealing Undercover Agent’s Identity 7.94

RICO Offenses see Racketeering Offenses

Riot 8.24

Robbery 8.16

Rule of Lenity see Burden of Proof

Sabotage 7.216-7.217

Safe Haven

Aggravated Felony 5.37, 7.2-7.104, 7.100

Avoiding a Conviction 5.27

Crimes of Moral Turpitude 7.105-7.135

Counsel, Role of see Working with Counsel

Definitions 2.1-2.5

Non-Conviction Dispositions 2.3-2.4, 4.8

Non-Deportable Convictions 2.5

Non-Deportable Dispositions 2.3-2.4

Partial Safe Havens 7.1, et seq.

Documenting see Victory, Documenting

Evaluating

Circuit Court Decisions 3.11

Degrees of Safe Haven 3.5

Generally Chapter 3

Goals of Client see Client

Nature of Client see Client

Seriousness of Crime see Crime, Seriousness

Strength of Legal Argument 3.6-3.9

Raising the Argument 3.10-3.13

Reasoning by Analogy 3.9

Territorial Limits 3.8

Timing 3.11

Generally Applicable 5.26

Aggravated Felony 5.37-5.38

Checklist 4.3

Crimes of Moral Turpitude 5.38

Jurisdictional Differences 3.8

Maximum Possible Sentence 5.57 see also Sentence

Minimum Elements 5.56

Negotiating see Negotiating

Non-Deportable Conviction see Non-Deportable Conviction

Non-Deportable Sentence see Sentence

Offense of Conviction 5.55

Record of Conviction see Record of Conviction

Sentence Imposed 5.58 see also Sentence

Statute of Conviction 5.54

Verification of Safe Haven 5.52

Securities Fraud see Financial Crimes

Security Related Grounds of Deportation see National Security Offenses; Grounds of Deportation

Selective Service Violation 7.218, 8.30

Sentence

Aggravated Felony see Aggravated Felony

Sentence (cont’d)

Constitutional Limitations on 5.57(D)

Crimes of Moral Turpitude see Crime of Moral Turpitude

Custody 5.45(A)

Deferred Sentence 4.19, 5.45(A) see also Conviction

Definition of “Sentence Imposed” 5.45(A), 7.25

Concurrent Sentences 7.25(B)

Consecutive Sentences 7.26

Commitment to Juvenile Facility see Juvenile

Indeterminate Sentences 7.25(B)

Length of 5.44, 6.39, 7.25(B)

“One Year,” Definition 7.24, 7.25(B)

Probation 5.45(A), 7.25(B)

Probation/Parole Violations 7.25(B)

Restitution 5.51, 6.40

Sentence Enhancements see Sentence Enhancements

Suspended Sentence 5.45(A), 7.25(B), 7.26

Documentation of 6.47, 6.49 see also Investigation

Foreign 4.35

Hearing 6.37

Immigration Consequences of 5.44, 5.45(C)

Aggregate Sentences of Five Years of More 5.45(C)

Aggravated Felonies, “One Year” Rule 5.45

Requirements for Petty Offense Exception 5.44, 5.45(A)

Maximum Possible 5.44, 5.46, 5.57, 7.28, 7.128

Negotiating see Negotiating a Safe Haven

Non-Deportable Sentence, Obtaining 5.44

Prior Convictions, Effect on Future 5.64, 7.128(B)

Prosecutorial Interest see Prosecutorial Interest

Record of Conviction see Record of Conviction

Reduction to Misdemeanor 7.23, 7.27(B), 7.128(C)

Sentencing Guidelines 5.57(C)-(D)

Seriousness of Crime 3.17

Sex Offender Registration 5.62, 5.65

State Rehabilitative Relief 4.28(H)

Strikes 5.62, 5.65

Techniques to Avoid a Qualifying Sentence 6.37-6.38

Vacating or Reducing the Sentence 4.28(D)-4.28(H), 4.29, 5.47(C), 7.27, 7.27(A), 7.27(C)

Youthful Offender 5.45(B), 7.25(B)

Sentence Enhancements

Definition of Sentence 7.25(B)

Not Part of Record of Conviction 5.57(B), 5.63

Sex Offenses

See also Domestic Violence; Children, Offenses Committed Against

Adultery 8.75(B)

Age of Victim 7.99, 7.101(D)

Aggravated Felony 7.96, 8.77(A)

As a Crime of Violence see Crime of Violence

Bastardy 8.75(B)

Bigamy 8.75(B)

Crime of Moral Turpitude 7.98(C), 8.77

Fornication 8.78

Homosexual Conduct 8.80

Indecency 8.79, 9.15

Indecent Exposure 9.15

Lewdness/Lasciviousness 8.80

Misdemeanor Convictions 7.96(D)

Obscenity 8.81

Prostitution see Prostitution

Rape 7.92, 7.96, 7.101, 8.83

Sex Offenses (cont’d)

Safe Havens 9.13-9.19

Sexual Assault 8.84

Sexual Abuse of a Minor 7.96, 8.77

Abuse 7.98

Consent 7.98(A)

Definition 7.96-7.99

Federal Offenses 7.96(G)

Physical Contact 7.98(B)

Sex Element 7.97

Sodomy 8.80

Statutory Rape 7.96, 7.101

Shoplifting see Theft

Single Scheme see Crime of Moral Turpitude

Slow Plea see Plea

Smuggling Immigrants Offenses

Alien Harboring 7.31, 7.190(D), 8.56

Alien Smuggling 7.32, 7.190, 8.56

Alien Transporting 7.33, 7.190(D), 8.56

Conduct-Based Grounds of Deportation 7.32(D), 7.190

Conduct-Based Ground of Inadmissibility 7.32(D)

Crimes of Moral Turpitude 7.32(D), 8.56

Importation for Immoral Purpose 7.191

“Snitch” Visa 7.128, 7.130(B)

Social Security Card, False Use of 7.108(C), 8.27(B)

Sodomy see Sex Offenses

Solicitation see Non-Substantive Offenses

Spousal Abuse see Domestic Violence

Stalking see Domestic Violence

State Criminal Records see Investigation

State Rehabilitative Relief see Post-Conviction Relief, Expungements; Sentence

Statutory Analysis see Record of Conviction

Statutory Construction, All Doubts Benefit Noncitizen see Burden of Proof

Statutory Rape see Sex Offenses

Structuring Financial Transactions 8.26(B), 9.42 see also Financial Crimes

Substantive Offense 7.7 see also Non-Substantive Offenses

Suicide, Attempted 8.9

Surplusage see Record of Conviction

Suspended Sentence see Sentence, Definition

Target/Preparatory Offenses 7.120, 8.10(B), 8.70, 9.33

Tax Offenses 7.102, 8.34, 9.43 see also Fraud, Loss to the Victim

Temporary Restraining Order (TRO), Violation of see Domestic Violence, Temporary Restraining Order Violations

Terminating Removal Proceedings 3.4(B)

Terrorist Conduct 7.219

Terrorist Training 7.220

Theft Offenses

See also Crime of Violence; Burglary

Aggravated Felony 7.103, 8.46(A)

Aiding and Abetting 7.103(D) see also Non-Substantive Offenses

Crime of Moral Turpitude 7.121, 8.46(B)

Definition 7.103(B), 8.46(A)

Intent 7.103(C), 8.46(A)

Misdemeanor Offenses 7.103, 7.24

Permanent/Temporary Taking 7.103(C), 8.46(B)

Safe Havens 9.32—9.37

Sentence 8.46(A)

Threats 7.46, 8.18 see also Crime of Violence

Against President 7.221

Torture 7.222

Trading with the Enemy 7.223

Trafficking, Drug see Controlled Substance Offenses

Trafficking, Persons see Smuggling Immigrant Offenses

Transportation of Drugs see Controlled Substance Offenses

Travel 3.8

Treason or Sedition 7.224

Trespass 8.47

U/V

Undocumented Aliens

See also Inadmissibility

Immigration Consequences to Avoid 5.6(B)

Vacated Convictions see Post-Conviction Relief

Vagrancy 8.35

VAWA, see Violence Against Women Act

Vehicles with ID Numbers Removed, Trafficking 7.104

Vehicular Homicide, see Motor Vehicle Offenses

Victim, see Domestic Violence Convictions

Victory, Documenting 6.41

Certified Copies 6.42

Charges 6.43

Clerk’s Minutes 6.44, 6.47

Judgment 6.46

Presenting Victory to Immigration Court 6.50

Probation Order 6.48

Reporter’s Transcripts 6.40, 6.45

Sentence 6.47, 6.49

Violations, Criminal see Non-Conviction Dispositions

Violence see Crimes of Violence; Domestic Violence

Violence Against Women Act (VAWA)

Waivers 7.196(C), 7.197(D)

Visa Fraud Deportation Ground see Fraud

Waiver 7.196(B), 7.197(C)

Visa Revocation 7.200

Visas

“S” Visa 7.128, 7.130(B)

Voting, Unlawful 7.192

W/X/Y/Z

Waivers of Removal 1.18, 7.134, 7.197

Cancellation of Removal, 8 U.S.C. § 1229b 5.6(B), 5.57

Former INA § 212(c) 5.57, 7.134

INA § 212(h) 5.6(B), 7.144(B), 9.4

Weapons see Firearms; Assault; Crime of Violence

White Collar Crimes see Financial Crimes

Willfulness see Intent

Withholding of Removal see Asylum

Witness Dissuasion 9.14

“Wobblers” 7.23 see also Sentence, Reduction of Felony to Misdemeanor

Working with Counsel 5.19

Client Privilege Waiver 5.21(C)

Conflicting Goals 5.21(A)-5.21(B)

Criminal Defense Counsel Role 5.21

Immigration Counsel Role 5.10, 5.20

Ineffective Assistance of 5.21(C)

Malpractice 5.21(B)

Post-Conviction Counsel Role 5.21, 5.22

Using “Safe Havens” Manual 1.1-1.19

Updates

AGGRAVATED FELONY " CRIME OF VIOLENCE " 16(b) " ORDINARY CASE ANALYSIS UNCONSTITUTIONALLY VOID FOR VAGUENESS
Linus Chan, in The ordinary cases demise in criminal sentencing & its implications for immigration law, at Crimmigration.com, summarized the impact of Johnson v. United States as follows: After the Supreme Court announced the ordinary case method in James, the Board of Immigration Appeals (BIA), and a couple of federal circuit courts began to adopt it in immigration cases when deciding whether someone has committed a crime of violence under 18 U.S.C. 16(b). Section 16(b)s language is not an exact match to ACCAs residual clause, but isnt far off. Section 16(b) defines a crime of violence as a felony which, 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. Like the ACCAs residual clause, 16(b) requires an examination of risk, and also looks at whether force is used in the course of committing the offense. Two circuit courts called the phrases virtually identical. See Roberts v. Holder, 745 F.3d 928, 930 (8th Cir. 2014); Lopez-Cardona v. Holder, 662 F.3d 1110, 1113 (9th Cir. 2011). Moreover, the Ninth and Fifth Circuits applied the ordinary case from James to 16(b) cases. Rodriguez-Castellon v. Holder, 733 F.3d 847, 854 (9th Cir. 2013); Perez-Munoz v. Keisler, 507 F.3d 357, 363 (5th Cir. 2007). The BIA had begun applying the ordinary case method to 16(b) cases in 2011, see Matter of Ramon Martinez, 25 I&N Dec. 571 (BIA 2011), and just a few weeks before Johnson reiterated its support for the ordinary case method in Matter of Francisco-Alonzo, 26 I&N Dec 594 (BIA 2015) (analyzed on this blog here). In Francisco-Alonzo, the BIA relied heavily on the fact that James had not been overruled, and it saw no reason to question the rule when examining risk based definitions. The James ordinary method, it seemed, had become embedded in immigration law. The reliance on James as good precedent proved to be ill timed. On June 26, 2015, just three weeks after Francisco-Alonzo the United States Supreme Court not only overruled James in Johnson but also found that the residual clause of the ACCA and the ordinary case method unconstitutionally vague under the Due Process clause of the Fifth Amendment. The Court specifically criticized the ordinary case rule. It ties the judicial assessment of the risk to a judicially imagined ordinary case of a crime, not to real-world facts for statutory elements, the Court concluded. Johnson, No. 13-7120, slip op at 5. The Court wrote that such an exercise was too speculative and too unreliable to give guidance to either defendants or judges. The Court explained that other risk-assessment statutes did their work by gauging the riskiness of conduct in which an individual defendant engages on a particular occasion. As a general matter, we do not doubt the constitutionality of laws that call for an application of a qualitative standard such as substantive risk to real-word conduct Id. at 12. Ultimately the residual clause was vague because it requires application of the serious potential risk standard to an idealized ordinary case of the crime. Because the elements necessary to determine the imaginary ideal are uncertain both in nature and degree of effect, the Court concluded, this abstract inquiry offers significantly less predictability than one [t]hat deals with the actual, not with an imaginary condition other than the facts. Id. (quoting International Harvester Co. of America v. Kentucky, 234 U. S. 216, 223 (1914)).

AGGRAVATED FELONY " AIDING AND ABETTING
Rosemond v. United States, ___ U.S. ___ (2014) (discussion of elements of aiding and abetting). The court stated: When an accomplice knows beforehand of a confederates design to carry a gun, he can attempt to alter that plan or, if unsuccessful, withdraw from the enterprise; it is deciding instead to go ahead with his role in the venture that shows his intent to aid an armed offense. But when an accomplice knows nothing of a gun until it appears at the scene, he may already have completed his acts of assistance; or even if not, he may at that late point have no realistic opportunity to quit the crime. And when that is so, the defendant has not shown the requisite intent to assist a crime involving a gun. As even the Government concedes, an unarmed accomplice cannot aid and abet a 924(c) violation unless he has foreknowledge that his confederate will commit the offense with a firearm. Brief for United States 38; see also infra, at 15"17. For the reasons just given, we think that means knowledge at a time the accomplice can do something with it"most notably, opt to walk away. Id. at ___.

AGGRAVATED FELONY " CRIME OF VIOLENCE " 18 USC 16(b) -- POSSESSION OF BURGLARY TOOLS
United States v. Fish, ___ F.3d ___, 2014 WL 715785 (1st Cir. Feb. 26, 2014) (Massachusetts conviction for possession of burglarious tools, under M.G.L. ch. 266, 49, does not categorically constitute a crime of violence as defined at 18 U.S.C. 16, because it included neither an element of force under (a) nor the substantial risk that violent force would be used under (b)).

AGGRAVATED FELONY " BURGLARY
Descamps v. United States, ___ U.S. ___, ___ (Jun. 20, 2013) (California conviction of burglary, in violation of Penal Code 459 (entry without requiring unlawful entry with intent to commit theft or any felony), is overbroad with respect to the generic federal definition of burglary, for purposes of federal sentence enhancement under the ACCA for a prior burglary conviction, because generic unlawful entry is never an element of 459, a conviction under that statute is never for generic burglary.).

BIA

AGGRAVATED FELONY " CRIME OF VIOLENCE " DISCHARGE OF A FIREARM
Matter of Chairez, 26 I&N Dec. 349 (BIA 2014) (Utah conviction for violation of 76-10-508.1(1)(a), discharge of a firearm, is not categorically an aggravated felony crime of violence, since the offense may be committed recklessly).

AGGRAVATED FELONY " CRIME OF VIOLENCE " DISCHARGE OF A FIREARM
Matter of Chairez, 26 I&N Dec. 349 (BIA 2014) (Utah conviction for violation of 76-10-508.1(1)(b) and (c), discharge of a firearm in the direction of a building, person, or vehicle, is categorically an aggravated felony crime of violence).

AGGRAVATED FELONY " THEFT " RECEIPT OF STOLEN PROPERTY
Matter of Sierra, 26 I&N Dec. 288 (BIA 2014) (Nevada conviction for violation of NRS 193.330, 205.273, possession of a stolen vehicle, is not a categorical aggravated felony theft offense under INA 101(a)(43)(G), for immigration purposes, since the statute only requires reason to believe that the property received was stolen, but the generic definition of receipt of stolen property applicable to the aggravated felony definition requires knowledge).

CONVICTION " NATURE OF OFFENSE " ELEMENTS OF OFFENSE " SENTENCE ENHANCEMENT " MILITARY CONVICTION
Matter of Chavez-Alvarez, 26 I. & N. Dec. 274 (BIA Mar. 14, 2014) (an sentencing enhancement element listed in a specification in the Manual for Courts-Martial, that must be pled and proved beyond a reasonable doubt, is the functional equivalent of an element of a criminal offense for immigration purposes).

AGGRAVATED FELONY " RECEIPT OF STOLEN PROPERTY
Matter of Sierra, 26 I & N Dec. 288, 292 (BIA 2014) (Nevada conviction of attempted possession of a stolen vehicle, in violation of Nevada Revised Statute 193.330 and 205.273, was not categorically an aggravated felony as an attempted theft offense, because Nevada law does not require actual knowledge that the property had been stolen, but only reason to believe; aggravated felony theft ground requires intent to deprive, which can be inferred from actual knowledge, but not from reason to believe); citing Matter of Garcia-Madruga, 24 I & N Dec. 436 (BIA 2008). NOTE: For any theft offense in which the mental state can be either knowledge or reason to know or believe, if the record shows that the defendant pled to the latter element, the defendant may be protected against the conviction being considered an aggravated felony. E.g., Massachusetts offense receiving a stolen motor vehicle, under M.G.L. ch. 266 28, only requires a reason to believe mental state.

AGGRAVATED FELONY " CRIME OF VIOLENCE " 18 USC 16(b) -- ASSAULT WITH A DANGEROUS WEAPON
United States v. Fish, ___ F.3d ___, 2014 WL 715785 (1st Cir. Feb. 26, 2014) (Massachusetts conviction for assault and battery with a dangerous weapon, under M.G.L. ch. 265, 15A, did not categorically constitute a crime of violence, under 18 U.S.C. 16(b), because the minimum conduct punishable under this statute did not create a substantial risk that the defendant would intentionally use physical force against person or property, since the minimum conduct included reckless conduct), applying Leocal v. Ashcroft, 543 U.S. 1 (2004).

AGGRAVATED FELONY " DRUG TRAFFICKING OFFENSE " DISTRIBUTION OF SMALL AMOUNT OF MARIJUANA
Matter of Castro-Rodriguez, 25 I&N Dec. 698 (BIA 2012) (remanding case to IJ to allow respondent to present factual evidence that Virginia conviction of possession with the intent to give or distribute less than one-half ounce of marijuana, in violation of Va. Rev. Stat. 18.2-248.1(a)(1), involved only gratuitous distribution of a small amount of marijuana); following Matter of Aruna, 24 I&N Dec. 452 (BIA 2008) (the federal felony conspiracy to distribute a controlled substance offense, 21 U.S.C. 841(a)(1), (b)(1)(D), allows for the consideration of evidence outside the record of conviction for the purpose of reducing the felony offense to a misdemeanor); citing United States v. Hamlin, 319 F.3d 666, 670-71 (4th Cir. 2003). NOTE: The BIA relied upon Nijhawan v. Holder, 557 U.S. 29 (2009), to find the circumstance-specific approach is appropriate to determine whether a conviction of possession of marijuana with intent to distribute involved a small amount of marijuana and no remuneration. The BIA stated that the less than 30 grams of marijuana exception, may, in general, serve as a useful guidepost in determining whether an amount is small. Matter of Castro Rodriguez, 25 I&N Dec. at 703.

AGGRAVATED FELONY " DRUG TRAFFICKING " DELIVERY OF SIMULATED CONTROLLED SUBSTANCE
Matter of Sanchez-Cornejo, 25 I. & N. Dec. 273 (BIA 2010) (Texas conviction of delivery of a simulated controlled substance, as defined by 482.001(4) of the Texas Health and Safety Code, is not an aggravated felony drug trafficking offense because federal law does not punish distribution of a non-controlled substance in place of a real controlled substance; the violation is, however, a controlled substances offense for purposes of triggering removability under INA 237(a)(2)(B)).

First Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " ASSAULT " INTENT
Villanueva v. Holder, 784 F.3d 51 (1st Cir. Apr. 24, 2015) (Connecticut conviction for assault in the third degree, under Conn. Gen.Stat. 53a"61, did not constitute a crime of violence aggravated felony, under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), where the record of conviction did not indicate the subdivision under which the noncitizen was convicted, since two of the three sections involved only recklessness or negligence which are insufficient intent to constitute a crime of violence under 18 U.S.C. 16).

AGGRAVATED FELONY " CRIME OF VIOLENCE " ASSAULT AND BATTERY
United States v. Martinez, ___ F.3d ___, 2014 U.S. App. LEXIS 15173 (1st Cir. Aug. 6, 2014) (Massachusetts convictions for assault and battery and simple assault, under Mass. Gen. L. ch. 265, 13A, did not categorically constitute crimes of violence under the Federal Sentencing Guidelines, U.S.S.G. 4B1.2(a), even though the defendant admitted having struck his girlfriend, because the term struck covers conduct that is neither intentional nor involves violent force). Note: The defendant did not raise a claim that the assault and battery statute was not divisible, so no resort to the record of conviction was proper; therefore, the court did not reach that issue. Immigration attorneys should argue that under Martinez, Massachusetts simple assault can never be an aggravated felony as a crime of violence or a crime of domestic violence under INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i). Similarly, immigration counsel should argue that Massachusetts assault and battery is not a crime of violence " both because the record of conviction does not clearly and necessarily establish a conviction for harmful battery and because (most importantly) assault and battery is not a divisible offense and therefore should never be considered a crime of violence.

AGGRAVATED FELONY " CRIME OF VIOLENCE " 18 USC 16(b) -- BREAKING AND ENTERING
United States v. Fish, ___ F.3d ___, 2014 WL 715785 (1st Cir. Feb. 26, 2014) (Massachusetts conviction for breaking and entering with intent to commit a felony, M.G.L. ch. 266, 16, 18, did not categorically constitute a crime of violence, under 18 U.S.C. 16(b), because the minimum conduct punishable did not create a substantial risk that the defendant would use physical force against person or property, since the minimum conduct included nonviolent entries of rarely-occupied structures through unlocked doors or windows,; rejecting the governments argument that the court should look only to the typical case charged under the statute). NOTE: A conviction for breaking and entering a building with a sentence of imprisonment of one year or more, suspended or imposed, remains an aggravated felony under a different provision of the aggravated felony statute. 8 U.S.C. 1101(a)(43)(G) (theft offense or burglary offense with sentence of one year or more is aggravated felony); see Taylor v. United States, 495 U.S. 575, 599 (1990) (burglary defined as unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime).

AGGRAVATED FELONY " CRIME OF VIOLENCE " 18 USC 16(a) -- ASSAULT WITH A DANGEROUS WEAPON
United States v. Fish, ___ F.3d ___, 2014 WL 715785 (1st Cir. Feb. 26, 2014) (Massachusetts conviction for assault and battery with a dangerous weapon, under M.G.L. ch. 265, 15A, did not categorically constitute a crime of violence, under 18 U.S.C. 16(a), because the minimum conduct punishable under this statute does not have as an element the use of violent force, but instead covers even the slightest touching with a dangerous weapon).

AGGRAVATED FELONY " CRIME OF VIOLENCE " 18 USC 16(a) -- POSSESSION OF BURGLARY TOOLS
United States v. Fish, ___ F.3d ___, 2014 WL 715785 (1st Cir. Feb. 26, 2014) (Massachusetts conviction for possession of burglarious tools, under M.G.L. ch. 266, 49, does not categorically constitute a crime of violence as defined at 18 U.S.C. 16, because it included neither an element of force under (a) nor the substantial risk that violent force would be used under (b)).

AGGRAVATED FELONY " CRIME OF VIOLENCE " 18 USC 16(b) -- POSSESSION OF BURGLARY TOOLS
United States v. Fish, ___ F.3d ___, 2014 WL 715785 (1st Cir. Feb. 26, 2014) (Massachusetts conviction for possession of burglarious tools, under M.G.L. ch. 266, 49, does not categorically constitute a crime of violence as defined at 18 U.S.C. 16, because it included neither an element of force under (a) nor the substantial risk that violent force would be used under (b)).

CRIMES OF MORAL TURPITUDE " LARCENY
Patel v. Holder, 707 F.3d 77 (1st Cir. Feb. 1, 2013) (Connecticut conviction of fourth degree larceny under Conn. Gen.Stat. 53a"125, is not categorically a crime of moral turpitude because the offense may be committed without intent to permanently deprive).

AGGRAVATED FELONY " SEXUAL ABUSE OF A MINOR " CHILD ENDANGERMENT
Campbell v. Holder, 698 F.3d 29, *31 (1st Cir. Oct. 19, 2012) (Connecticut conviction of risk of injury to a minor under of the Connecticut General Statutes 53"21(a)(1) (penalizing [a]ny person who ... wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child...], does not categorically constitute aggravated felony sexual abuse of a minor, under INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A), since the statute includes non-sexual acts such as providing alcohol to a minor).

AGGRAVATED FELONY " DRUG TRAFFICKING OFFENSES " SOLICITATION
James v. Holder, 698 F.3d 24, *27 (1st Cir. Oct. 19, 2012) (The more difficult issue is whether James' conviction under section 21a"277(b) was for an offense that would also comprise trafficking"which is true of some but not necessarily all of the subordinate offenses listed in the Connecticut statute. The INA (through a series of cross-references) defines illicit trafficking to include the manufacture, distribution and dispensing of a controlled substance, as well as possession with intent to do any of these; INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), cf.18 U.S.C. 924(c)(2); 21 U.S.C. 841(a); but this definition does not appear to encompass offers and gifts, which are criminalized under the Connecticut statute.); citing United States v. Savage, 542 F.3d 959, 965 (2d Cir.2008) (Conn.Gen.Stat. 21a"277(b) plainly criminalizes, inter alia, a mere offer to sell a controlled substance, which might be made absent possession); Mendieta"Robles v. Gonzales, 226 Fed. App'x 564, 568"69 (6th Cir.2007) (conviction under state statute that criminalizes gift of drugs is not necessarily an illicit trafficking offense under INA); see also Matter of Davis, 20 I. & N. Dec. 536, 541 (B.I.A. 1992) (business or merchant nature is [e]ssential to the term trafficking under INA).).

Second Circuit

AGGRAVATED FELONY " FRAUD OFFENSE " PLEA DID NOT ESTABLISH OFFENSE WAS COMMITTED WITH SPECIFIC INTENT TO DEFRAUD
Akinsade v. Holder, 678 F.3d 138 (2d Cir. May 1, 2012) (federal conviction for embezzlement by a bank employee under 18 U.S.C. 656, did not categorically constitute a fraud aggravated felony, for purposes of deportation, where none of the facts to which the petitioner actually and necessarily pleaded to establish whether that offense was committed with a specific intent to defraud).

AGGRAVATED FELONY " CRIME OF VIOLENCE " THIRD-DEGREE BURGLARY
United States v. Folkes, 622 F.3d 152 (2d Cir. Sept. 29, 2010) (per curiam) (New York conviction of third degree burglary, in violation of N.Y. Penal Law 140.20 [knowingly enters or remains unlawfully in a building with intent to commit a crime therein.], did not categorically constitute crime of violence for illegal re-entry sentencing purposes, since the statute does not necessarily involve use of force against another).

AGGRAVATED FELONY " CRIME OF VIOLENCE " POSSESSION OF A FIREARM
United States v. Folkes, 622 F.3d 152 (2d Cir. Sept. 29, 2010) (per curiam) (New York conviction of third-degree criminal possession of a loaded firearm, in violation of N.Y. Penal Law 265.02(4), did not categorically constitute crime of violence for illegal re-entry sentencing purposes, since the crime of violence definition requires some affirmative conduct beyond mere possession of a gun); following United States v. Gamez, 577 F.3d 394, 398 (2d Cir. 2009).

AGGRAVATED FELONY " SEXUAL ABUSE OF A MINOR " SEXUAL MISCONDUCT
Ganzhi v. Holder, 624 F.3d 23 (2d Cir. Sept. 7, 2010) (per curiam) (New York conviction of sexual misconduct, in violation of New York Penal Law 130.20(1), is a divisible statute, since it provides in different subsections different definitions of lack of consent, and includes offenses involving minors one day shy of 17 years of age).

Third Circuit

AGGRAVATED FELONY " FIREARMS AND DESTRUCTIVE DEVICES " ARSON " FEDERAL JURISDICTIONAL ELEMENT
Bautista v. Atty Gen. of the U.S., 744 F.3d 54 (3d Cir. Feb. 28, 2014) (New York conviction of attempted arson in the third degree, in violation of Penal Law 110 and 150.10, did not categorically constitute a match for the elements of 18 U.S.C. 844(i), and is therefore not an aggravated felony under INA 101(a)(43)(E)(i), 8 U.S.C. 1101(a)(43)(E)(i), because the New York arson statute does not require the federal jurisdictional element that the object of the arson be used in interstate commerce, which the Supreme Court has found to be a critical and substantive element of that arson offense). The court reasoned as follows: We must assume that Congress was aware of the limits imposed by the Commerce Clause on the reach of the statutes it passes and that it restricted the breadth of 101(a)(43)(E) with the substantive constraints of the included jurisdictional elements in mind. See United States v. Am. Bldg. Maint. Indus., 422 U.S. 271, 279"80, 95 S.Ct. 2150, 45 L.Ed.2d 177 (1975) (comparing Congress's use of in commerce versus affected commerce to show that Congress is aware of its Commerce Clause power and the extent to which it asserts that power in drafting statutes). We cannot undermine the categorical approach and Congress's deliberate choice to include 844(i), rather than generic arson, in 101(a)(43)(E)(i). Further, were we to ignore the jurisdictional element in our categorical approach to 844(i), as the BIA has here, we would be characterizing a state conviction for arson of the intrastate house in Jones as an aggravated felony described in 844(i), when the Supreme Court clearly excised the arson of such intrastate objects from the scope of that federal statute. Id. at 64-66.

AGGRAVATED FELONY " DRUG TRAFFICKING " FEDERAL FOOD, DRUG, AND COSMETIC ACT VIOLATIONS
Borrome v. Attorney General of the United States, 687 F.3d 150 (3d Cir. Jul. 18, 2012) (federal conviction for unauthorized wholesale distribution in interstate commerce of prescription drugs, in violation of 21 U.S.C. 331(t), 353(e), is not a drug trafficking aggravated felony).

AGGRAVATED FELONY " FRAUD OR DECEIT " LOSS TO THE VICTIM
Singh v. Att'y General, 677 F.3d 503 (3d Cir. Apr. 16, 2012) (federal conviction of knowingly making a false statement under penalty of perjury in a bankruptcy proceeding in violation of 18 U.S.C. 152(3), did not trigger removal-deportation as an aggravated felony fraud conviction, because government failed to show that actual loss to the victim exceeded $10,000.00). NOTE: This case agrees with Pierre v. Holder 588 F.3d 767 (2d Cir. 2009), in finding that to be a fraud or deceit aggravated felony, there must be a actual loss, rather than merely an intended or attempted a loss, in excess of $10,000. The court suggests, however, that the government should have charged the respondent under INA 101(a)(43)(U), 8 U.S.C. 1101(a)(43)(U), to capture intended loss.

CRIMES OF MORAL TURPITUDE " FAILURE TO REGISTER AS A SEX OFFENDER
Totimeh v. Attorney General, 666 F.3d 109 (3d Cir. Jan. 12, 2012) (Minnesota conviction of failure to register as a sex offender, in violation of Minn. Stat. 243.166.5, defined the offense as knowingly violat[ing] any of [the statutes] provisions or intentionally provid[ing] false information, is not a crime of moral turpitude, since it is a regulatory offense designed to assist law enforcement, and does not regulate a crime that of itself is inherently vile or intentionally malicious.); following Efagene v. Holder, 642 F.3d 918 (10th Cir. 2011) (Colorado conviction of failure to register as a sex offender, is not a CIMT).

AGGRAVATED FELONY " DRUG TRAFFICKING " SALE OF MARIJUANA
Thomas v. Attorney General of U.S., 625 F.3d 134 (3d Cir. Oct. 26, 2010) (New York misdemeanor conviction for fourth-degree criminal sale of marijuana, in violation of Penal Law 221.40, is a divisible statute [to sell, exchange, give or dispose of to another], only sale of which categorically falls within the hypothetical federal felony test of drug trafficking crimes that qualify as aggravated felonies INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B); record of conviction did not establish that sale with consideration was involved; police reports were not part of the record of conviction, even where defendant waived information).

Fourth Circuit

AGGRAVATED FELONY " THEFT OFFENSE " RECEIVING STOLEN OR EMBEZZLED PROPERTY
This file summarizes developments occurring from Apr. 1-30, 2016. Mena v. Lynch, ___ F.3d ___, 2016 WL 1660166 (4th Cir. Apr. 27, 2016) (federal conviction of violating 18 U.S.C. 659, second paragraph (purchase, receipt, or possession of property that has moved in interstate or foreign commerce knowing the same to have been embezzled or stolen), was not categorically an aggravated felony theft offense, under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), for immigration purposes, because the crime of embezzlement necessarily involves a taking of property with the owner's consent, and a taking of property without consent is an essential element of aggravated felony theft); see Soliman v. Gonzales, 419 F.3d 276, 282 (4th Cir. 2005) ([w]hen a theft offense has occurred, property has been obtained from its owner without consent; but in a fraud scheme, the owner has voluntarily surrendered his property, because of an intentional perversion of truth, or otherwise act [ed] upon a false representation to his injury. . . . [The] key and controlling distinction between these two crimes is ... the consent element"theft occurs without consent, while fraud occurs with consent that has been unlawfully obtained.); accord, Omargharib v. Holder, 775 F.3d 192, 196 (4th Cir. 2014).

CONVICTION -- NATURE OF CONVICTION " CATEGORICAL ANALYSIS " CIRCUMSTANCE-SPECIFIC FACTOR " DOMESTIC RELATIONSHIP DOMESTIC VIOLENCE " DOMESTIC RELATIONSHP " CIRCUMSTANCE-SPECIFIC FACTOR
Hernandez-Zavala v. Lynch, (4th Cir. Nov. 20, 2015) (North Carolina conviction for assault with a deadly weapon, in violation of N.C. Gen. Stat. 14-33(c)(1), is a crime of domestic violence, even though domestic relationship is not necessary to convict; applying circumstance specific analysis to domestic relationship element of 8 U.S.C. 1227(a)(2)(E)(i), INA 237(a)(2)(E)(i)).

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

CRIMES OF MORAL TURPIUTDE " SEX OFFENDER REGISTRATION
Mohamed v. Holder, 769 F.3d 885 (4th Cir. Oct. 17, 2014) (Virgina conviction for violation of VaCodeAnn. 18.2-472.1, failure to register as a sex offender, is not a crime involving moral turpitude for immigration purposes, since it is merely a regulatory offense), disagreeing with Matter of Tobar-Lobo, 24 I&N Dec. 143 (BIA 2007).

AGGRAVATED FELONY " CRIME OF VIOLENCE " RESISTING ARREST
United States v. Aparicio-Soria, 740 F.3d 152 (4th Cir. Jan. 14, 2014) (en banc) (Maryland conviction of resisting arrest, in violation of Md. Code, Crim. Law 9"408(b)(1) [[a] person may not intentionally ... resist a lawful arrest.], does not qualify categorically as a "crime of violence" within the meaning of the residual force clause of U.S.S.G. 2L1.2(b)(1)(A), because it does not have as an element the use, attempted use, or threatened use of physical force against the person of another).

AGGRAVATED FELONY " CRIME OF VIOLENCE " SECOND-DEGREE ASSAULT
United States v. Royal, 731 F.3d 333 (4th Cir. Oct. 1, 2013) (Maryland conviction for second-degree assault, in violation of Md. Code, Crim. Law 3"203(a), did not constitute a predicate violent felony under the Armed Career Criminal Act, because the Maryland offense was a facially indivisible statute, i.e., one that does not set out elements of the offense in the alternative, but which may nevertheless broadly criminalize qualitatively different categories of conduct; Maryland courts do not require unanimity on whether the offense was committed by offensive physical contact or infliction of physical harm.).

AGGRAVATED FELONY " CRIME OF VIOLENCE " CHILD ABUSE
United States v. Gomez, 690 F.3d 194 (4th Cir. Aug. 10, 2012) (Maryland conviction of child abuse, in violation of Maryland Code 1957, Article 27, 35C, was not a crime of violence for illegal re-entry sentencing purposes because the offense could be committed without use of force).

Fifth Circuit

CONTROLLED SUBSTANCES " DEPORTATION " EXCEPTION FOR FIRST OFFENSE POSSESSION OF SMALL AMOUNT OF MARIJUANA " BIA CANNOT ADD CONDITIONS
Flores v. Lynch, 803 F.3d 699 (5th Cir. 2015) (conviction for possession of marijuana in a school zone meets the personal use exception to deportability for a controlled substances offense; BIA erred in adding to the personal use exception a requirement that the offense be no more than the least serious offense). NOTE: This reasoning should also invalidate the possession in jail disqualification from the marijuana exception to the controlled substance ground of deportation. The Court specifically cited, and disagreed with, Matter of Moncada"Servellon, 24 I. & N. Dec. 62 (BIA 2007). The Court also found that Moncada-Servellon was not due Chevron deference, as it was contrary to the INA.

AGGRAVATED FELONY " CRIME OF VIOLENCE " MANSLAUGHTER
United States v. Garcia-Perez, ___ F.3d ___, 2015 WL 753759 (5th Cir. Feb. 23, 2015) (Florida conviction of manslaughter, in violation of Florida Statute 782.07, did not qualify as a crime of violence under United States Sentencing Guideline 2L1.2(b)(1)(A), because Florida manslaughter conviction does not require proof of force, and my be committed with negligent intent).

AGGRAVATED FELONY " DRUG TRAFFICKING " DELIVERY OF COCAINE
Sarmientos v. Holder, 742 F.3d 624 (5th Cir. Feb. 12, 2014) (Florida conviction of delivery of cocaine, in violation of Florida Statute 893.13(1)(a)(1)(sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance), is not a categorical aggravated felony drug trafficking offense, since Florida statute does not require knowledge of the illicit nature of the controlled substance, while federal offense requires knowledge of the illicit nature of the substance); see State v. Adkins, 96 So.3d 412, 415"16 (Fla. 2012) (explaining that knowledge of the illicit nature of the controlled substance is no longer an element of the Florida crime that the prosecution must prove beyond a reasonable doubt).

AGGRAVATED FELONY " CRIME OF VIOLENCE " AGGRAVATED ASSAULT
United States v. Esparza-Perez, 681 F.3d 228 (5th Cir. May 14, 2012) (Arkansas conviction of aggravated assault [[e]ngag[ing] in conduct that creates a substantial danger of death or serious physical injury to another person.] is not a crime of violence under the residual clause of USSG 2L1.2, because the statute does not require any contact or injury or attempt or threat of offensive contact or injury, thus did not have as an element "the use, attempted use, or threatened use of physical force against the person of another).

AGGRAVATED FELONY " CRIME OF VIOLENCE " AGGRAVATED ASSAULT
United States v. Esparza-Perez, 681 F.3d 228 (5th Cir. May 14, 2012) (Arkansas conviction of aggravated assault, in violation of Ark. Code 5-13-204(a)(1), is not a crime of violence for illegal re-entry sentencing purposes, under U.S.S.G. 2L1.2 cmt. n.1(B)(iii), because it does not require proof of an assault as that crime is generally defined"i.e., as an offense that involves the use, attempted use, or threatened use of offensive contact against another person).

Sixth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " AGGRAVATED ASSAULT
United States v. McMurray, 653 F.3d 367 (6th Cir. Aug 4, 2011) (Tennessee conviction of aggravated assault, in violation of Tenn.Code Ann. 39"13"102 (1991), was not a violent felony under the ACCAs use of physical force clause, or under its residual clause, for purposes of the Armed Career Criminal Act, where the offense could be committed recklessly).

Seventh Circuit

AGGRAVATED FELONY " FIREARMS OFFENSES " POSSESSION OF A WEAPON
(Illinois conviction for being in possession of a weapon in violation of 720 ILCS 5/24"1.1(a) did not qualify as an aggravated felony, because Illinoiss definition of a firearm is broader than its federal counterpart because it includes pneumatic weapons). NOTE: Compressed air is not an explosive, which means that pneumatic weapons are not firearms under federal law. See, e.g., United States v. Castillo-Rivera, 853 F.3d 218, 225 (5th Cir. 2017) (en banc); United States v. Crooker, 608 F.3d 94, 96 (1st Cir. 2010). Rodriguez-Contreras v. Sessions, 873 F.3d 579, 580 (Cir. 2017).

AGGRAVATED FELONY " CRIMES OF VIOLENCE " COMMITTING FELONY WHILE ARMED
Brown v. Rios, 696 F.3d 638, *644 (No. 11-1695) (7th Cir. Aug. 20, 2012) (armed violence, defined as "committing any felony defined by Illinois Law while armed," did not qualify as a Violent Felony when the underlying felony consisted of simple possession of drugs; while there is evidence of a connection between Congresss attempt to keep firearms away from habitual drug users and its goal of reducing violent crime, United States v. Yancey, 621 F.3d 681, 686 (7th Cir. 2010), it has not been shown that the mere possession of a gun by a drug user . . . can be described as purposeful, violent, or aggressive conduct within the meaning of Begay.).

POST CON RELIEF " GROUNDS " INSUFFICIENCY OF EVIDENCE
United States v. Griffin, ___ F.3d ___, ___ (7th Cir., Jul. 5, 2012) (reversing federal conviction for felon in possession of firearms where there was no evidence defendant intended to exercise any control over his father's firearms in his parents' home where he went to live after being released from prison: a defendant's strong connection to the residence alone does not suffice to establish the nexus required to prove his constructive possession of a gun found in the residence.").

Eighth Circuit

CRIMES OF MORAL TURPITUDE " ASSAULT " GENERAL CRIMINAL INTENT
Alonzo v. Lynch,___ F.3d ___, ___, 2016 WL 1612772 (8th Cir. Apr. 22, 2016) ([T]he BIA and various courts have declined to classify [simple assault] as a [CIMT]. Simple assault typically is a general intent crime, and it is thus different in character from those offenses that involve a vicious motive, corrupt mind, or evil intent. Chanmouny v. Ashcroft, 376 F.3d 810, 814"15 (8th Cir. 2004) (emphasis added) (quoting Matter of O, 3 I. & N. Dec. 193, 194"95 (BIA 1948)); see also [Matter of] Solon, 24 I. & N. Dec. at 241 (same).).

AGGRAVATED FELONY " OBSTRUCTION OF JUSTICE " OBSTRUCTION OF LEGAL PROCESS
Ortiz v. Lynch, __ F.3d __ (8th Cir. Aug. 6, 2015) (Minnesota conviction for violation of Minn.Stat. 609.50, subd. 2(2), obstruction of legal process, is not an aggravated felony crime of violence under 8 U.S.C. 1101(a)(43)(F), INA 101(a)(43)(F), since the minimum amount of force required to sustain a conviction under the obstruction of legal process is not violent force as required by 18 U.S.C. 16).

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).

AGGRAVATED FELONY " CRIMES OF VIOLENCE " SECOND-DEGREE BATTERY
United States v. Dawn, 685 F.3d 790 (8th Cir. Jun. 28, 2012) (Arkansas conviction of second-degree battery, in violation of Ark. Code Ann. 5"13"202(a) (2006), is not categorically a crime of violence for purposes of the Armed Career Criminals Act, because it includes recklessly causing serious physical injury, including reckless driving).

Ninth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " ROBBERY
United States v. Jones, 877 F.3d 884 (9th Cir. Dec. 15, 2017) (Arizona conviction for armed robbery, under A.R.S. 13-1904, is not a violent felony for purposes of the ACCA, because Arizona's armed robbery does not require the use of force), following United States v. Molinar, 876 F.3d 953 (9th Cir. 2017).

AGGRAVATED FELONY " CRIME OF VIOLENCE " ROBBERY United States v. Jones, 877 F.3d 884 (9th Cir. Dec. 15, 2017) (Arizona conviction for armed robbery, under A.R.S. 13-1904, is not a violent felony for purposes of the ACCA, because Arizona's armed robbery does not require the use of force), following United States v. Molinar, 876 F.3d 953 (9th Cir. 2017).

AGGRAVATED FELONY " CRIME OF VIOLENCE " ROBBERY
United States vs. Sanchez Molinar, 876 F.3d 953 (9th Cir. Nov. 29, 2017) (Arizona conviction for robbery, in violation of Ariz. Rev. Stat. 13-1904(A), which includes merely possessing a fake gun during the commission of a robbery without mentioning or brandishing it, is not a crime of violence for purposes of the ACCA because the minimum conduct necessary to commit the offense is not sufficiently violent for to qualify as a crime of violence under Johnson v. United States, 559 U.S. 133 (2010)).

CRIMES OF MORAL TURPITUDE " HIT AND RUN
Conejo Bravo v. Sessions, 875 F.3d 890 (9th Cir. Nov.17, 2017) (California conviction of hit and run, under Vehicle Code 20001(a), is under a divisible statute; the record established that noncitizen failed to render aid, which is a crime of moral turpitude); see Garcia-Maldonado v. Gonzales, 491 F.3d 284, 290 (5th Cir. 2007) (holding that Texas hit and run law qualifies as a CIMT, as "the failure to stop and render aid after being involved in an automobile accident is the type of base behavior that reflects moral turpitude").

AGGRAVATED FELONY " CHILD PORNOGRAPHY " POSSESSION OF CHILD PORNOGRAPHY
Chavez-Solis v. Lynch, 803 F.3d 1004, 1009 (9th Cir. Oct. 6, 2015) (California conviction of possession of child pornography, Penal Code 311.11(a), is broader than the relevant federal aggravated felony statutory definition, and there is a realistic probability that overbroad conduct would be prosecuted in California, and this conviction therefore is not considered to be an aggravated felony for purposes of INA 101(a)(43)(I), 237(a)(2)(A)(iii): No provision of the federal statute's definition of sexually explicit conduct can be read to encompass any touching on any part of a child's body with the intent of arousing sexual desires. California's child pornography statute thus sweeps in depictions of a broader range of sexual conduct than the federal child pornography statute encompasses. On this basis, Penal Code 311.11(a) is categorically overinclusive.).

AGGRAVATED FELONY " CRIME OF VIOLENCE " VOLUNTARY MANSLAUGHTER
Quijada-Aguilar v. Lynch, ___ F.3d ___, 2015 WL 5103038 (9th Cir. Sept. 1, 2015) (California conviction for voluntary manslaughter, under Penal Code 192(a), did not qualify as a particularly serious crime that would render noncitizen ineligible for withholding of removal, since it did not constitute an aggravated felony crime of violence, because it encompassed reckless conduct).

AGGRAVATED FELONY " THEFT OFFENSE
Lopez-Valencia v. Lynch, ___ F.3d ___ (9th Cir. Aug. 17, 2015) (California theft conviction, including any offense for which the underlying substantive offense charged was a violation of Penal Code 484, is not aggravated felony theft, since because the California definition of theft includes theft of labor, false credit reporting, and theft by false pretenses, which do not fall within the definition of aggravated felony theft).

CONTROLLED SUBSTANCES " PARAPHERNALIA " UNLISTED SUBSTANCE
Madrigal-Barcenas v. Lynch, ___ F.3d ___, 2015 WL 4716767 (9th Cir. Aug. 10, 2015) (Nevada drug paraphernalia conviction, under NRSA 453.566, constitutes a controlled substance conviction, for purposes of inadmissibility, only if the conviction involved a substance criminalized by federal drug laws); following Mellouli v. Lynch, 135 S. Ct. 2828 (2015); holding Luu-Le v. INS, 224 F.3d 911 (9th Cir. 2000) and its progeny are no longer good law.

AGGRAVATED FELONY " SEXUAL ABUSE OF A MINOR " CHILD MOLESTATION
United States v. Martinez, ___ F.3d ___, ___, 2015 WL 3406178 (9th Cir. May 28, 2015) (Washington conviction of third-degree child molestation, in violation of Wash. Rev.Code 9A.44.089, is categorically not an aggravated felony sexual abuse of a minor offense, under INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A), since the offense is not divisible and includes touching over clothing; sexual abuse of a minor requires skin on skin contact); see State v. Soonalole, 992 P.2d 541, 544 & n.13 (Wash.Ct.App.2000) (holding that the fondling and thigh rubbing over the victim's clothes constituted a separate act of third-degree child molestation under state criminal law for double jeopardy purposes); see also United States v. Castro, 607 F.3d 566, 570 (9th Cir. 2010), as amended (holding that a California statute prohibiting lewd and lascivious acts on a child, under Penal Code 288(a), was categorically broader than the generic definition for sexual abuse of a minor because [l]ewd touching [under the state statute] can occur through a victim's clothing and can involve any part of the victim's body).

AGGRAVATED FELONY " THEFT OFFENSE " THEFT
Garcia v. Lynch, ___ F.3d ___, ___, 2015 WL 2385402 (9th Cir. May 20, 2015) (California conviction of theft, under Penal Code 487(a), is not categorically a theft aggravated felony because the California offense includes theft of labor, and because the California statute may be violated even if the victim consented to transfer his property by false pretenses), citing Carrillo"Jaime v. Holder, 572 F.3d 747, 751"53 (9th Cir. 2009).

CRIMES OF MORAL TURPITUDE " UNAUTHORIZED DRIVING A VEHICLE
Almanza-Arenas v. Holder, ___ F.3d ___ (9th Cir. Nov. 10, 2014) (California conviction of violating Vehicle Code 10851(a), a statute that criminalizes both conduct that would constitute a crime of moral turpitude " taking a vehicle with intent permanently to deprive the owner, and conduct that does not amount to a crime of moral turpitude " taking with intent temporarily to deprive the owner " was not categorically a crime of moral turpitude and does not render respondent ineligible for non-LPR cancellation of removal under 8 U.S.C. 1229b(b) in the context of removal proceedings for inadmissibility); see Castillo-Cruz v. Holder, 581 F.3d 1154, 1159 (9th Cir. 2009) (a theft offense is not categorically a crime of moral turpitude if the statute of conviction is broad enough to criminalize a taking with intent to deprive the owner of his property only temporarily.).

AGGRAVATED FELONIES " DRUG TRAFFICKING OFFENSES " POSSESSION FOR SALE CONVICTION " NATURE OF CONVICTION " CATEGORICAL ANALYSIS " DIVISIBLE STATUTE " CALIFORNIA POSSESSION FOR SALE
Padilla-Martinez v. Holder, ___ F.3d ___, ___, n.3, 2014 WL 5421219 (9th Cir. Oct. 27, 2014) (California conviction of possession for sale of a controlled substance, in violation of Health and Safety Code 11378, qualified as an aggravated felony for deportation purposes, since state law required jury to identify specific controlled substance as an element of the offense, and thus the modified categorical analysis was properly used to consult the record of conviction, which identified federally listed substance). The court stated: California Health & Safety Code 11378 is divisible for several reasons. First, it is written in the disjunctive by listing five alternative categories of controlled substances. See Quijada Coronado v. Holder, 747 F.3d 662, 668"69 (9th Cir.2014) (concluding that California Health & Safety Code 11377(a), a statute substantially similar to 11378, is divisible). Also, California state law treats the type of controlled substance as a separate element in prosecuting relevant drug offenses. See, e.g., 2 Witkin & Epstein, Cal.Crim. Law (4th ed.2012) 102 (a specified controlled substance is an element common to all state drug crimes requiring proof of possession); CALCRIM 2302 (Judicial Council of California Criminal Jury Instruction for conviction under 11378 requires the jury to fill in the blank where the controlled substance is to be identified); People v. Montero, 155 Cal.App.4th 1170, 66 Cal.Rptr.3d 668, 671 (Cal.Ct.App.2007) (adopting the CALCRIM jury instruction); see also People v. Gerber, 196 Cal.App.4th 368, 126 Cal.Rptr.3d 688, 704 (Cal.Ct.App.2011) (finding instructional error where jury instructions for conviction of a California drug crime did not require the jury to identify the type of controlled substance). Id. at ___, n.3.

AGGRAVATED FELONY " FIREARMS OFFENSES " ANTIQUE FIREARMS DEFENSE
United States v. Hernandez, 769 F.3d 1059 (9th Cir. Oct. 20, 2014) (per curiam) (California conviction for being a felon in possession of a firearm under California Penal Code 12021(a)(1), did not categorically qualify as a listed firearms aggravated felony, under INA 101(a)(43)(E), 8 U.S.C. 101(a)(43)(E), since the state did not have an exception for antique firearms, as federal law did, and the state in fact prosecuted defendants under this statute for being in possession of antique firearms, and the state statutory definition of firearm is not divisible, so resort to the modified categorical analysis or record of conviction is prohibited).

CONTROLLED SUBSTANCES " UNIDENTIFIED SUBSTANCE AGGRAVATED FELONY " DRUG TRAFFICKING " UNIDENTIFIED SUBSTANCE
Medina-Lara v. Holder, 771 F.3d 1106 (9th Cir. Oct. 10, 2014) (California conviction of possession for sale of a controlled substance, in violation of Health & Safety Code 11351, is neither an aggravated felony drug trafficking conviction, under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), nor a controlled substances conviction, under INA 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i), under the modified categorical analysis, because the amended complaint and the abstract of judgment did not provide clear and convincing evidence regarding what specific substance the petitioner pleaded guilty to), withdrawing prior opinion at ___ F.3d ___, 2014 WL 4654481 (9th Cir. Sept. 19, 2014); distinguishing Cabantac v. Holder, 736 F.3d 787, 793-94 (9th Cir.2012) (per curiam); Ramirez-Villalpando v. Holder, 645 F.3d 1035, 1041 (9th Cir. July 1, 2011). Cross-References: Cal Crim Def Immig 8.21 (unidentified drug). Cross-References: Cal Crim Def Immig 14.20 (record failed to prove identity of drug).

SAFE HAVEN " CARRYING A CONCEALED FIREARM CRIM DEF " FIREARMS OFFENSES " DEFINITION OF FIREARM
A plea to carrying a concealed firearm on the person, in violation of Pen C 25400(a)(2), should not be considered a crime of moral turpitude, a firearms conviction, or an aggravated felony, as a ground of deportation, inadmissibility, or even for relief purposes such as cancellation of removal. United States v. Aguilera"Rios, 754 F.3d 1105, 1112 (9th Cir. 2014); Matter of Chairez, 26 I&N Dec. 349, 35558 (BIA 2014).

CRIMES OF MORAL TURPITUDE " BURGLARY
Rendon v. Holder, ___ F.3d ___, ___, 2014 WL 4115930 (9th Cir. Aug. 22, 2014) (California conviction of burglary, in violation of Penal Code 459 [entry with intent to commit larceny or any felony], did not constitute a divisible statute, under Descamps; the presence of an or between grand or petit larceny and any felony does not render the statute divisible, because the intended offense, under this statute, is not an element of the offense, but a means of commission, since California law does not require jury unanimity on this point; BIA's use of the modified categorical approach was impermissible); citing People v. Failla, 414 P.2d 39, 44-45 (1966); distinguishing Ngaeth v. Mukasey, 545 F.3d 796, 802 (9th Cir. 2008) (per curiam) (decided prior to Descamps); Hernandez"Cruz v. Holder, 651 F.3d 1094, 1104"05 (9th Cir. 2011) (same). NOTE: The court states: To be clear, it is black-letter law that a statute is divisible only if it contains multiple alternative elements, as opposed to multiple alternative means. Id. at 2285. Thus, when a court encounters a statute that is written in the disjunctive (that is, with an or), that fact alone cannot end the divisibility inquiry. Only when state law requires that in order to convict the defendant the jury must unanimously agree that he committed a particular substantive offense contained within the disjunctively worded statute are we able to conclude that the statute contains alternative elements and not alternative means.

CAL CRIM DEF " CONSPIRACY " OBJECT OF A CONSPIRACY IS NOT AN ELEMENT AGGRAVATED FELONY " CONSPIRACY
People v. Vargas, 110 Cal. Rptr. 2d 210, 247 (2001) (the object of a conspiracy is not an element of a California conspiracy offense: [T]he specific crimes that constitute the object of the conspiracy are not elements of the conspiracy. Rather, they are the means by which the purpose of the conspiracy was to be achieved.); id. at 245 (So long as there is unanimity that crime was the object of the agreement, conspiracy is established regardless of whether some jurors believe that crime to be murder and others believe that crime to be something else.). Note: As long as Rendon v. Holder, ___ F.3d ___, ___, 2014 WL 4115930 (9th Cir. August 22, 2014), remains the law of the Ninth Circuit, the target offense of the conspiracy does not constitute part of the elements of the offense of conviction. Under the same reasoning, a conspiracy offense is not divisible in terms of the elements, so the immigration authorities cannot use the modified categorical analysis to consult the record of conviction documents to determine the nature of the conviction for immigration purposes. Thanks to Dan Kesselbrenner.

AGGRAVATED FELONIES " FIREARMS OFFENSES " ANTIQUE FIREARMS
United States v. Aguilera-Rios, ___ F.3d ___, 2014 WL 2723766 (9th Cir. Jun. 17, 2014) (California Penal Code 12021(c)(1), current Penal Code 29800, is not a categorical aggravated felony firearms offense, since the statute lacks an antique firearms exception); explicitly partially overruling Gil v. Holder, 651 F.3d 1000, 1005"06 (9th Cir. 2011), and implicitly partially overruling Matter of Mendez-Orellana, 25 I&N Dec. 254 (BIA 2010).

CONTROLLED SUBSTANCES " ATTEMPTED PROMOTING DANGEROUS DRUG NOT REMOVABLE " PAULUS DEFENSE " UNLISTED DRUG
Ragasa v. Holder, ___ F.3d ___, ___, 2014 WL 1661491 (9th Cir. Apr. 28, 2014) (Hawaii conviction for promotion of a dangerous drug, in violation of HRS 705"500(1)(b), 712"1241(1)(b)(ii), is not categorically a controlled substances offense; Ragasa is not categorically removable under Section 237(a)(2)(B)(i) of the INA because his statute of conviction criminalizes at least two substances that are not similarly proscribed by the CSA: benzylfentanyl and thenylfentanyl. Compare Haw.Rev.Stat. 329"14(b)(56) & (57) (2003); Haw.Rev.Stat. 712"1240 (2004); Haw.Rev.Stat. 712"1241(1)(b)(ii) (2006), with 21 U.S.C. 812; 21 C.F.R. 1308.11"15.).

AGGRAVATED FELONY " CRIME OF VIOLENCE " SEXUAL CONDUCT WITH A MINOR
United States v. Gomez, __ F.3d __, 2014 WL 1623725 (9th Cir. Apr. 24, 2014) (Arizona conviction for violation of ARS 13-405, sexual conduct with a minor under the age of fifteen, is not necessarily a crime of violence, as sexual abuse of a minor, for illegal re-entry sentencing purposes, under current law), applying tests of Estrada"Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008).

AGGRAVATED FELONY " CRIME OF VIOLENCE " ASSAULT ON OFFICER
United States v. Dominguez-Maroyoqui, 748 F.3d 918 (9th Cir. Apr. 7, 2014) (federal conviction for assaulting a federal officer, in violation of 18 U.S.C. 111(a), is not categorically a crime of violence for illegal re-entry sentencing purposes, since the offense does not require, as an element, proof that defendant used, attempted to use, or threatened to use physical force).

CONTROLLED SUBSTANCES " UNLISTED SUBSTANCES AGGRAVATED FELONIES " DRUG TRAFFICKING OFFENSES
Coronado v. Holder, ___ F.3d ___, 2014 WL 983621 (9th Cir. Mar. 14, 2014) (Health & S C 11377(a) is not categorically a conviction relating to a federally-listed controlled substance, for purposes of inadmissibility, because it includes at least one substance that is not on the federal list). NOTE: The court found that Health & Safety Code punishes offenses involving "khat (Catha Edulis) and Chorionic gonadotropin (HGC), which are not listed in the federal schedules. See 21 C.F.R. 1308.13 (Schedule III of the CSA).

CRIMES OF MORAL TURPITUDE " FELONY FALSE IMPRISONMENT
Turijan v. Holder, 744 F.3d 617 (9th Cir. Mar. 10, 2014) (California conviction of felony false imprisonment, in violation of Penal Code 236, 237 [deprivation of liberty of another by violence or menace], was not a categorical crime of moral turpitude, because it does not require the intent to injure, actual injury, or a protected class of victim, and California courts have applied the statute to conduct that is not morally turpitudinous); following Castrijon"Garcia v. Holder, 704 F.3d 1205, 1218 (9th Cir. 2013) (California conviction of simple kidnapping under Penal Code 207(a) is not categorically a crime of moral turpitude).

AGGRAVATED FELONY " CONSPIRACY " DEFINITION
United States v. Garcia-Santana, 743 F.3d 666 (9th Cir. Feb. 20, 2014) (Nevada conviction of conspiracy to commit the crime of burglary in violation of Nev.Rev.Stat. 199.480, 205.060(1), does not constitute an aggravated felony conspiracy, where Nevada law does not require as an element of conspiracy the commission of an overt act in pursuance of the conspiracy, Nev.Rev.Stat. 199.490; aggravated felony conspiracy, INA 101(a)(43) (U), 8 U.S.C. 1101(a)(43)(U), require commission of an overt act in furtherance of the conspiracy, so the state offense is overbroad); distinguishing United States v. Chandler, 743 F.3d 648 (9th Cir. Feb. 20, 2014) (Nevada conviction for conspiracy to commit robbery is a violent felony within the meaning of the Armed Career Criminal Act, 18 U.S.C. 924(e)(1), which employs a different definition of conspiracy than that used for the aggravated felony definition under INA 101(a)(43) (U), 8 U.S.C. 1101(a)(43)(U)).

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 " FRAUD OFFENSES " LOSS AMOUNT " MEDICARE PRESUMPTIVE LOSS AMOUNT
United States v. Popov, 742 F.3d 911 (9th Cir. Feb. 11, 2014) (in federal health care fraud prosecutions, the amount billed to an insurer constitutes sufficient evidence to establish the intended loss by a preponderance of the evidence, if not rebutted).

AGGRAVATED FELONY " RACKETEERING
Murillo-Prado v. Holder, __ F.3d __ (9th Cir. Nov. 20, 2013) (Arizona conviction for illegally conducting an enterprise is not categorically an aggravated felony RICO conviction, but the record of conviction established respondent was convicted of aggravated felony racketeering). Note: This holding may be inconsistent with Bautista v. Atty Gen. of the U.S., ___ F.3d ___ (3d Cir. Feb. 21, 2014)(New York conviction of attempted arson in the third degree, in violation of Penal Law 110 and 150.10, did not categorically constitute a match for the elements of 18 U.S.C. 844(i), and is therefore not an aggravated felony under INA 101(a)(43)(E)(i), 8 U.S.C. 1101(a)(43)(E)(i), because the New York arson statute does not require the federal jurisdictional element that the object of the arson be used in interstate commerce, as the corresponding federal statute does, which the Supreme Court has found to be a critical and substantive element of that arson offense, so it did not disqualify him from eligibility for cancellation of removal under INA 240A(a)(3), 8 U.S.C. 1229b(a)(3)).

AGGRAVATED FELONY " RACKETEERING "ARIZONA RICO
Murillo-Prado v. Holder, 735 F.3d 1152, 1157 (9th Cir. Nov. 20, 2013) (Arizona conviction for racketeering, in violation of Ariz.Rev.Stat. 13"2301, is not categorically a RICO aggravated felony offense, because Arizona's definition of racketeering includes two offenses not explicitly listed in its federal counterpart: (1) [i]ntentional or reckless false statements or publications concerning land for sale or lease or sale of subdivided lands or sale and mortgaging of unsubdivided lands, and (2) making [o]bscene or indecent telephone communications to minors for commercial purposes,).

CRIMES OF MORAL TURPITUDE " SIMPLE KIDNAPPING
Castrijon-Garcia v. Holder, 704 F.3d 1205 (9th Cir. Jan. 9, 2013) (California conviction of simple kidnapping, under Penal Code 207(a), is categorically not a crime involving moral turpitude making a noncitizen statutorily ineligible for cancellation of removal, because it does not require an intent to injure, actual injury, or a special class of victims).

AGGRAVATED FELONY " SEXUAL ABUSE OF A MINOR " SEXUAL BATTERY
Sanchez-Avalos v. Holder, 693 F.3d 1011 (9th Cir. Sept. 4, 2012) (California conviction of sexual battery, in violation of Penal Code 243.4(a), did not categorically constitute a sexual abuse of a minor aggravated felony, because the elements do not require that the victim be a minor, and the evidence admissible under the modified categorical analysis did not establish that the victim was a minor).

AGGRAVATED FELONY " CRIME OF VIOLENCE " RESISTING OFFICER
Flores-Lopez v. Holder, 685 F.3d 857 (9th Cir. Jul. 9, 2012) (California conviction of resisting an executive officer in violation of Penal Code 69 is not a categorical crime of violence aggravated felony, under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), because it requires only use of de minimis force; the idea that resisting executive officer would inevitably lead to use of violent, physical force was speculative).

CRIMES OF MORAL TURPITUDE " THEFT OFFENSES " REQUIREMENT OF INTENT TO PERMANENTLY DEPRIVE THE OWNER AS DISTINGUISHED FROM DEFINITION OF AGGRAVATED FELONY THEFT OFFENSE
Hernandez-Cruz v. Holder, ___ F.3d ___, ___n.20 (9th Cir. Jul. 7, 2011) (A generic attempted theft offense for CIMT purposes is defined slightly differently than in the aggravated felony context. Whereas the latter, as we noted earlier, requires the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent, Carrillo-Jaime, 572 F.3d at 750 (citation and quotation marks omitted), a permanent taking [must be] intended for a conviction to qualify as a CIMT.); quoting Castillo-Cruz v. Holder, 581 F.3d 1154, 1160 n.8 (9th Cir. 2009) (citation, quotation marks, and emphasis omitted).

CRIMES OF MORAL TURPITUDE " FALSE IMPRISONMENT
Saavedra-Figueroa v. Holder, 625 F.3d 621 (9th Cir. Nov. 5, 2010) (California misdemeanor conviction of false imprisonment, in violation of Penal Code 236, was not a categorical crime of moral turpitude, because crime did not require noncitizen to have the intent to harm necessary for the crime to be base, vile or depraved).

Lower Courts of Ninth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " ASSAULT
United States v. Sahagun-Gallegos, ___ F.3d ___, 2015 WL 1591446 (9th Cir. Apr. 10, 2015) (Arizona conviction of assault, under A.R.S. 13"1204(A), is overbroad with respect to 18 U.S.C. 16, because the definition of assault in subsection (1) of the Arizona statute includes simple recklessness, whereas a crime of violence requires a mens rea of at least heightened recklessness, see United States v. Gomez"Hernandez, 680 F.3d 1171, 1175 (9th Cir. 2012), and is divisible); see United States v. Cabrera"Perez, 751 F.3d 1000, 1004"05 (9th Cir. 2014).

AGGRAVATED FELONY " CRIME OF VIOLENCE " ESCAPE FROM CUSTODY
United States v. Simmons, 782 F.3d 510 (9th Cir. Apr. 3, 2015) (Hawaii conviction of second-degree escape from custody, in violation of Hawaii Revised Statutes 710"1021, did not categorically constitute a crime of violence, under U.S. Sentencing Guidelines (Sentencing Guidelines or U.S.S.G.) 4B1.1(a), because it includes both active and passive forms of escape); see Chambers v. United States, 555 U.S. 122, 126"27, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009).

CRIMES OF MORAL TURPITUDE " ORAL COPULATION WITH A MINOR
People v. Zuniga, 225 Cal.App.4th 1178, 170 Cal.Rptr.3d 811 (Cal.App. 4 Dist., Apr. 28, 2014) (California conviction of violating Penal Code 288a(b)(1), oral copulation with a minor, is not a crime of moral turpitude since there is no scienter requirement or age gap required and minor could be any person under 18).

CAL CRIM DEF " SAFE HAVENS " MALICIOUS WITNESS DISSUASION " CRIME OF VIOLENCE " CRIMES OF MORAL TURPITUDE " REALISTIC PROBABILITY OF PROSECUTION
People v. Wahidi, 222 Cal.App.4th 802, 807, 166 Cal.Rptr.3d 416 (2d Dist. Dec. 30, 2013) (defendants request that victim and defendant settle their dispute by Islamic mediation, rather than a criminal case, was held to be both knowing and malicious, within the meaning of the malicious witness dissuasion statute, Penal Code 136.1(a)(2), even though the defendant did not demand the victim drop the charges or threaten any violence: There is no substantial evidence that Wahidi intended to vex, annoy, harm, or injure Khan when Wahidi approached Khan in the mosque. But the evidence does show that Wahidi intended to thwart or interfere in any manner with the orderly administration of justice by convincing Khan not to testify at the preliminary hearing the next day. Under the definition of malice in section 136, Wahidi maliciously attempted to dissuade Khan from testifying.") (emphasis added). Note. Under this decision, California law now defines Penal Code 136.1(a)(2) as including conduct such as a civilized request to resolve an issue according to religious belief and conscience that in no sense of the word involves an element of violence (18 U.S.C. 16(a) or by its nature creates a substantial risk of violence (18 U.S.C. 16(b)). This offense therefore does not constitute an aggravated felony crime of violence. In addition, the conduct here is not depraved, and does not involve an intent to vex, annoy, harm, or injure another. It should therefore not be considered a crime of moral turpitude. It includes conduct motivated solely by religious belief and conscience. This sufficiently establishes a realistic probability of prosecution under this statute for non-removable conduct to prevent a conviction for violating this statute from constituting an aggravated felony crime of violence or crime involving moral turpitude. Thanks to Daniel G. DeGriselles.

Eleventh Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " THROWING A DEADLY MISSLE AT AN OCCUPIED VEHICLE
United States v. Estrada, ___ F.3d ___, 2015 WL 479969 (11th Cir. Feb. 6, 2015) (per curiam) (Florida conviction for throwing a deadly missile, a violation of Florida Statute 790.19, was not categorically a conviction for a crime of violence, for illegal reentry sentencing purposes, because We concluded that Estrella could be deemed to have been convicted of a crime of violence if his conviction was for wanton conduct, because Florida law defines wanton to mean that one has acted intentionally or with reckless indifference to the consequences and with knowledge that damage is likely to be done to some person. Id. at 1253. But if instead Estrella had been convicted of only malicious conduct, the latter was satisfied by knowledge that injury or damage would be done to a person or to property and, in that case, Estrella would not be deemed to have been convicted of a crime of violence.), following United States v. Estrella, 758 F.3d 1239 (11th Cir. 2014).

Other

CONTROLLED SUBSTANCES " COUNTERFEIT DRUG OFFENSES IN LIEU OF CONTROLLED SUBSTANCES
Practice Advisory, Su Yon Yi and Katherine Brady, Immigrant Legal Resource Center, Burn Statutes and Counterfeit Drug Offenses (2015), see ILRC.org (discussing Matter of Sanchez-Cornejo, 25 I&N Dec. 273 (BIA 2010) (the offense of delivery of a simulated controlled substance in violation of Texas law is not an aggravated felony, as defined by INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B) (2006), but it is a violation of a law relating to a controlled substance under former INA 241(a)(2)(B)(i), 8 U.S.C. 125l(a)(2)(B)(i) (1994))

RESOURCES " DOMESTIC VIOLENCE & CRIME OF VIOLENCE
NIP-NLG and Immigrant Defense Project have written an advisory on the Supreme Courts recent decision in U.S v. Castleman. The advisory explains why this decision should have no negative impact on immigration law and how it may even support arguments to narrow the domestic violence and aggravated felony removal grounds. The advisory is located at: http://www.nationalimmigrationproject.org/publications.htm

CONTROLLED SUBSTANCES " UNIDENTIFIED DRUG " PAULUS DEFENSE
Richard Collins, Esq., thinks Chorionic Gonadatropin is not a federally controlled anabolic steroid, although prohibited in California and New York. Convictions under California Health & Safety Code 11377 and 11378 are not categorically offenses relating to a controlled substance because California regulates "numerous substances that are not similarly regulated by the CSA. Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1078"79 (9th Cir. 2007); see also Mielewczyk v. Holder, 575 F.3d 992, 995 (9th Cir. 2009).

CD4:15.34;AF:6.30;CMT3:10.31;PCN:10.15; CPCN:2.10; 11.21
While the Board of Immigration Appeals has previously held that a nonimmigrant would have to affirmatively show that the firearm in the particular case actually was an antique (Matter of Mendez-Orellana (BIA 2010) 25 I&N Dec 254, 255), it would appear that the Supreme Court overruled that finding in Moncrieffe v Holder (2013) 133 SCt 1698, 1673. In Moncrieffe, the Court both reaffirmed that a statute defining an offense of conviction must be evaluated solely on the minimum conduct sufficient to commit it, and specifically discussed the antique firearm exception. The Court stated that as long as there is a realistic probability that antique firearms actually are prosecuted under the state statute at issue, a conviction should not be held a deportable firearm offense. Despite Moncrieffe, however, there is real uncertainty as to how the antique firearm defense will be treated in immigration court, and defense counsel should not count on it to save a defendant from deportation " unless the weapon involved in the offense really was a qualifying antique firearm. Otherwise, if the general antique firearm defense is the only alternative, the plea should be restricted to California offenses in which antique firearms actually have been prosecuted. See former Cal. P.C. 12022 (armed with antique weapon while committing felony) and former P.C. 12021 (possession by felon), and their current equivalent statutes, and see, e.g., People v. Gossman, 2003 WL 22866712 (2003); People v. McGraw, 2004 WL 928379 (2004). The California Penal Code, unlike 18 U.S.C. 921(a)(3), makes it a crime to possess an antique firearm. Penal Code 25400(a); see Gil v. Holder, 651 F.3d 1000, 1005 (9th Cir. 2011) (holding that conviction under predecessor California statute met federal gun definition even though former statute included conviction for an antique firearm, because antique firearm was an affirmative defense, rather than an element of the offense). Despite the fact that convictions under the California statute would seem necessarily to fail the categorical inquiry, a noncitizen convicted under this provision still must show a realistic probability that California would prosecute a defendant for having an antique weapon. See Moncrieffe v Holder, ___ US ___, 133 SCt 1678, 1693 (2013). See also People v. Robinson (2011) 199 CA4th 707, 131 CR3d 177 (affirming that California firearms definition, applicable to the state felon in possession offense, Penal Code 12021, criminalizes possession of antique or inoperable firearms); People v. Wolfe (2003) 114 Cal.App.4th 177, 7 Cal.Rptr.3d 483 (California prosecution for possession of a firearm, after having suffered a conviction for a felony or qualifying misdemeanor, in violation of Penal Code 12021(c)(1), based on possession of a Winchester 16"gauge shotgun and a bolt-action Sharps shotgun, which appeared to be antique firearms); People v. Claseman (1986) 183 Cal.App.3d Supp. 1, 229 Cal.Rptr. 453 (documenting prosecution for violation of Penal Code 12025(a), carrying a firearm concealed in a vehicle, on the basis of an antique firearm; conviction reversed since firearm was inoperable, not because it was an antique).

IMMIGRATION OFFENSES " FEDERAL LAW PREEMPTS STATE IDENTITY FRAUD PROSECUTIONS RELATED TO FEDERAL I-9 FORMS
State v. Reynua, State of Minnesota, Mower County District Court (Jul. 23, 2012) (File No. 50-CR-09-1811) (unpublished) (admission of an I-9 form in a state forgery prosecution was reversible error); on remand after State v. Reynua, 807 N.W.2d 473 (Minn. App. 2011), review granted, revd in part and remanded (Minn. Feb. 28, 2012) (8 U.S.C. 1324a(b)(5) means what it says -- that other than specified federal prosecutions, the I-9 form and appended documents may not be used to establish a state crime).

AGGRAVATED FELONY " CRIME OF VIOLENCE " RESISTING EXECUTIVE OFFICER
People v. Nishi, 207 Cal.App.4th 954, 143 Cal.Rptr.3d 882 (1st Dist. Jul. 13, 2012) (California Penal Code 69, attempting to deter or resist an executive officer in the performance of duty, is affirmed where the prosecution established the elements of the offense by substantial evidence; the central requirement of an offense under 69 is an attempt to deter an executive officer from performing his or her duties imposed by law; unlawful violence, or a threat of unlawful violence, is merely the means by which the attempt is made; such threat is limited to a threat of unlawful violence used in an attempt to deter the officer).

AGGRAVATED FELONY " CRIME OF VIOLENCE " RECKLESSNESS " ATTEMPTED RECKLESSNESS
New York permits defendants to plead guilty to legally impossible crimes, including attempted reckless first-degree assault. See People v. Guishard, 15 A.D.3d 731, 789 N.Y.S.2d 332, 333 (2005) (affirming plea conviction to attempted assault in the first degree although the crime was a legal impossibility); Dale v. Holder, 610 F.3d 294, 302 (5th Cir. 2010). Compare, United States v. Gomez"Hernandez, 680 F.3d 1171, 1175"78 & n. 4 (9th Cir. 2012) (defendant's conviction for attempted aggravated assault qualified as a crime of violence because, under Arizona law, it is not possible to be convicted of attempt without specific intent).