Safe Havens

A number of other non-substantive offenses exist under the law of some states.  For example, some states penalize concealment of a felony.  Where a state conviction violates a non-substantive law that applies to any felony, e.g., concealment of a felony, counsel can argue that this type of offense is similar to attempt and conspiracy, yet Congress chose not to add it to the list of deportable offenses.  See § 7.7(B), supra.

It is possible to argue in any jurisdiction that a conviction of an unlisted non-substantive offense is not an aggravated felony, using the “if it’s not listed, it’s not an aggravated felony argument.”  See § 7.7(B), supra.  See also Appendix H, infra, for examples of Congress’ express inclusion of other non-substantive offenses as part of various grounds of deportation and inadmissibility, whereas it did not so include this non-substantive offense, thus giving rise to the argument that it meant to exclude these convictions.