(A)  Aggravated Felonies.[29]  See § 7.84, supra.

 

            The statute includes as an aggravated felony “an offense described in § § 875, 876, 877, or 1202 of title 18, United States Code (relating to the demand for or receipt of ransom).”[30]  Since this definition specifically refers to several federal statutes, a state conviction must have identical elements to one of these federal statutes for a state conviction to be considered an aggravated felony under this theory.  There is no sentence imposed requirement.  Therefore, a qualifying conviction with no custody imposed at all will still qualify as an aggravated felony under this theory.  Kidnapping may also be considered an aggravated felony crime of violence,[31] depending on the elements of the statute violated.

 

Second Circuit:

 

Dickson v. Ashcroft, 346 F.3d 44 (2d Cir. Sept. 9, 2003) (New York conviction of unlawful imprisonment in the first degree, in violation of N.Y. Penal Law § 135.10, with sentence of one to three years, held not to be an aggravated felony crime of violence within the meaning of INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for deportation purposes, since the statute of conviction was divisible and the record of conviction did not establish that the particular conviction fell within the crime of violence portion of the statute, since it was improper to consider the narrative statement of facts contained in the presentence report as part of the record of conviction).

 

[29] See N. Tooby, Aggravated Felonies § 5.33 (2003).

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

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

Fifth Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - KIDNAPPING - ELEMENTS DID NOT NECESSARILY REQUIRE USE OF FORCE
United States v. Moreno-Florean, 542 F.3d 445 (5th Cir. Sept. 8, 2008) (California conviction for kidnapping, in violation of California Penal Code 207(a) is not necessarily a crime of violence for illegal re-entry sentencing purposes, since the statute can be violated without the use of physical force).

AGGRAVATED FELONY - KIDNAPPING
United States v. Cervantes-Blanco, 504 F.3d 576 (5th Cir. Oct. 12, 2007) (Colorado conviction for attempted second-degree kidnapping, in violation of C.R.S. 18-3-302(1), is not a crime of violence for illegal re-entry sentencing purposes; the generic definition of kidnapping requires (1) knowing removal or confinement, (2) substantial interference with the victim's liberty, and (3) force, threat, or fraud, while the Colorado kidnapping statute does not require a substantial interference with the victims liberty), following United States v. Iniguez-Barba, 485 F.3d 790, 791-93 (5th Cir. 2007).

Ninth Circuit

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).

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).

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).

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).

AGGRAVATED FELONY - CRIME OF VIOLENCE - FALSE IMPRISONMENT
United States v. Gonzalez-Perez, 472 F.3d 1158 (9th Cir. Jan. 10, 2007) (Florida conviction of false imprisonment under Florida law, did not constitute a crime of violence under U.S.S.G. 2L1.2(b)(1)(A)(ii), to warrant imposition of a 16-level sentence enhancement for illegal re-entry following deportation, because offense may be committed "secretly" without use of force). http://caselaw.lp.findlaw.com/data2/circs/9th/0510693p.pdf

AGGRAVATED FELONY - CRIME OF VIOLENCE - FALSE IMPRISONMENT - DIVISIBLE STATUTE
United States v. Hernandez-Hernandez, 431 F.3d 1212 (9th Cir. Dec. 16, 2005) (California conviction for false imprisonment, in violation of Penal Code 236, does not necessarily qualify as a crime of violence aggravated felony for purposes of applying a 16-level sentence enhancement for illegal reentry).

SAFE HAVEN - AGGRAVATED FELONY - CRIME OF VIOLENCE - FALSE IMPRISONMENT
United States v. Hernandez-Hernandez, ___ F.3d ___, ___ n.5, 2005 WL 3440815 (9th Cir. Dec. 16, 2005) (California conviction of felony false imprisonment, in violation of Penal Code 236, constitutes a divisible statute, encompassing some offenses that constitute crimes of violence within the meaning of U.S.S.G. 2L1.2(b)(1)(A)(ii), and some that do not; if defendant was or might have been convicted of committing false imprisonment by fraud or deceit, the conviction would not fall within the crime of violence portion of the divisible statute, for purposes of assessing a 16-level increase in base offense level for illegal reentry).