Safe Havens

The statute explicitly states that conspiracy to commit an aggravated felony constitutes an aggravated felony.[358]  Conversely, conspiracy to commit a non-aggravated felony would not constitute an aggravated felony.[359]

            The BIA held that a state conspiracy statute does not have to be exactly analogous to the federal conspiracy statute for the state conviction to be a controlled substances aggravated felony.  This decision was limited to the “general” drug trafficking test, however, and counsel should consider comparing the state conspiracy and attempt statutes at issue with the federal statutes.[360]  See ali, model penal code § 5.03 (criminal conspiracy)(1985).  If the elements of state conspiracy are broader than the federal version, the state conviction may not amount to aggravated felony conspiracy.  Moreover, this reasoning flies in the face of decisions in other contexts requiring that all of the conduct falling within the elements of the state offense of conviction must fall within the aggravated felony category before a state conviction will be held to be an aggravated felony.[361]

            It is important to examine the checklist of general aggravated felony safe havens to determine whether each offense or conviction being examined falls within one or more of the safe havens listed there.  See § 7.29, supra.

[358] INA § 101(a)(43)(U), 8 U.S.C. § 1101(a)(43)(U).

[359] The same rule applies to crimes of moral turpitude.  Conspiracy to commit a CMT is considered a CMT.  McNaughton v. INS, 612 F.2d 457, 459 (9th Cir. 1980) (per curiam); see also Guarneri v. Kessler, 98 F.2d 580 (5th Cir.), cert. den., 305 U.S. 648 (1938); Mercer v. Lence, 96 F.2d 122 (10th Cir.), cert. den., 305 U.S. 611 (1938); Matter of Goldeshtein, 20 I. & N. Dec. 382 (BIA 1991), rev’d, Goldeschtein v. INS, 8 F.3d 645 (9th Cir. 1993); Matter of G, 7 I. & N. Dec. 114, 115 (BIA 1956).  In fact, it applies to a number of other offenses, that are not in themselves deportable crimes, but which become deportable when committed with the intent to commit a deportable offense.

[360] In Matter of Davis, 20 I. & N. Dec. 536 (BIA 1992), the BIA considered conspiracy in the context of aggravated felony drug convictions.  There are two distinct tests to determine whether a state drug offense is an aggravated felony.  The offense must either be “trafficking” as the term is generally understood, or it must be an exact analogue to a federal drug felony.  In Davis, the BIA found that if the underlying offense is an aggravated felony because it meets the “common definition” of trafficking, conviction of conspiracy or attempt to commit the offense does not need to be analogous to the federal statute to be considered an aggravated felony.  Id. at 544-545.

[361] See Kamagate v. Ashcroft, 385 F.3d 144 (2d Cir. Sept. 21, 2004) (federal conviction of conspiracy constitutes an aggravated felony, under INA § 101(a)(43)(U), 8 U.S.C. § 1101(a)(43)(U), triggering deportability under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), so long as the substantive offense that is the object of the conspiracy constitutes an aggravated felony under (R), without regard to whether the elements of the conspiracy crime themselves establish a subsection (R) offense).