Criminal Defense of Immigrants

 

(F)  Non-Element Requirements of Certain Grounds of Removal and Certain Exceptions.  While there are as yet few judicial decisions in these areas, with the exception of fraud offense aggravated felonies, see § 16.7(E), supra, Congress has apparently specified that certain grounds of removal (and exceptions to grounds of removal) are based on factors beyond the elements of a conviction.  Examples of these include:

 

                (1)  Violations of 18 U.S.C. § § 2241, 2242, 2243, if committed for commercial advantage.  See § 18.24, infra.

 

                (2)  Fraud Offense Aggravated Felonies.  See § § 16.7(E), supra, 19.74, infra.

 

                (3)  Immediate Family Exception to Alien Smuggling Aggravated Felony.  See § 19.25, infra.

 

(4)  Immediate Family Exception to Passport Fraud Aggravated Felony.  See § 19.54, infra.

 

                (5)  Political Offense Exception to Crime of Violence Aggravated Felony.  See § 19.50, infra.

 

                (6) Political Offense Exception to Crime of Moral Turpitude Ground of Inadmissibility.  See § 20.31, infra.

 

                (7) Political Offense Exception to Multiple Criminal Conviction Ground of Inadmissibility.  See § 18.15, infra.

 

                (8)  Illegal entry in violation of INA § 275(a), with prior deportation as an  aggravated felon.[129]  See § 19.75, infra.

 

                (9)  Thirty Grams of Marijuana Exception to Controlled Substances Deportation Ground.[130]  See § 21.35, supra.

 

Most of these examples are, in fact, exceptions to a ground of deportation.

 

                There is an additional aggravated felony that seems to require something beyond the elements of the offense, but appears closer to the sentence inquiry that has long been permitted: a second conviction of 18 U.S.C. § 1084, under the RICO aggravated felony.[131]  See § 19.86, infra.

 

                Even where the courts engage in the examination of an extra element, the courts agree that they are still limited to looking to the record of conviction to determine whether an “extra element” is present that will transform a conviction that would not generally fall within a ground of removal into a removable offense.[132]  See § 16.7(A), supra. 

[129] See Rivera-Sanchez v. Reno, 198 F.3d 545 (5th Cir. Dec. 30, 1999) (federal conviction of violating INA § 275(a), 8 U.S.C. § 1325(a) — illegal entry — did not occur after the defendant had previously been deported, and so did not constitute an aggravated felony as defined in INA § 101(a)(43)(O), 8 U.S.C. § 1101(a)(43)(O) for immigration purposes).

[130] See N. Tooby & J. Rollin, Safe Havens: How to Identify and Construct Non-Deportable Convictions § 7.144 (2005).

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

[132] See, e.g., Alaka v. Attorney General, 456 F.3d 88 (3d Cir. Jul. 18, 2006) (limiting examination of “loss to the victim” for purposes of INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i) to the record of conviction); Huerta-Guevara v. Ashcroft, 321 F.3d 883 (9th Cir. Mar. 4, 2003) (same); Chang v. INS, 307 F.3d 1185 (9th Cir. Oct. 11, 2002) (same).