The question of whether an offense, as defined by the elements required by state law for conviction, constitutes a removable conviction is a question of federal immigration law.[390]  Since some offenses are crimes in some states, but not in others, it is necessary to develop a uniform federal standard that can be applied nationwide.[391]  The consequences a state chooses to place on the conviction in its own courts under its own laws cannot control the consequences given to the conviction in a federal deportation proceeding.[392]  When analyzing whether a state conviction triggers a ground of removal, however, the law of the state in which the conviction was prosecuted must also be considered in determining (A) the elements of the offense, (B) whether the offense is considered a felony or a misdemeanor, (C) the sentence imposed, and (D) the maximum possible sentence.

 

[390] Huerta-Guevara v. Ashcroft, 321 F.3d 883 (9th Cir. Mar. 4, 2003) (label placed upon an offense by the state statutory scheme is not controlling, for purposes of determining whether the offense triggers removal); Gonzales v. Barber, 207 F.2d 398 (9th Cir. 1953), aff’d, 347 U.S. 637, 74 S.Ct. 822 (rejecting argument that the California crime of assault with a deadly weapon was not a CMT per se because a California case had held that assault with a deadly weapon was not a crime involving moral turpitude for purposes of disbarring an attorney); Wyngaard v. Rogers, 187 F.Supp. 527 (D.D.C. 1960), aff’d, 111 App. D.C. 197, 295 F.2d 184 (D.C. Cir. 1960), cert. denied sub nom. Wyngaard v. Kennedy, 368 U.S. 926, 82 S.Ct. 362 (1961).

[391] See Nehme v. INS, 252 F.3d 415, 429 (5th Cir. 2001) (“[t]o avoid leaving the requirements for citizenship to state control, the court devised a federal standard to determine whether the petitioner had committed acts constituting a crime of moral turpitude”).

[392] See Lisbey v. Gonzalez, 420 F.3d 930, 933 (9th Cir. Aug. 22, 2005) (the fact that California does not list sexual battery as a violent felony for sentencing purposes is not dispositive of whether the offense is a crime of violence for immigration purposes); Franklin v. INS, 72 F.3d 571, 572-573 (8th Cir. 1995), cert. denied, 519 U.S. 834, 117 S.Ct. 105 (1996); Cabral v. INS, 15 F.3d 193, 196 n.5 (1st Cir. 1994); Gonzales v. Barber, 207 F.2d 398, 400 (9th Cir. 1953), aff’d, 374 U.S. 637 (1954); Matter of Medina, 15 I. & N. Dec. 611, 614 (BIA 1976); Matter of H, 7 I. & N. Dec. 359, 360 (BIA 1956).

Second Circuit

CONVICTION - NATURE OF CONVICTION - ELEMENTS OF OFFENSE OF CONVICTION - STATE JUDICIAL DECISIONS INCLUDE INTERMEDIATE APPELLATE COURTS AS WELL AS STATE SUPREME COURT
Blake v. Gonzales, ___ F.3d ___, ___, n.3, 2007 WL 914865 (2d Cir. March 28, 2007) (in determining the elements of the offense of conviction under state law, "we are bound to apply the law as interpreted by a state's intermediate appellate courts unless we find persuasive evidence that the state's highest court, which has not ruled on this issue, would reach a different conclusion. See Pahuta v. Massey-Ferguson, Inc., 170 F.3d 125, 134 (2d Cir.1999).").

Third Circuit

RECORD OF CONVICTION - LABEL OF STATE SENTENCING STATUTE NOT PART OF THE RECORD OF CONVICTION
Jeune v. Attorney General, 476 F.3d 199, 2007 WL 512510 (3d Cir. Feb. 20, 2007) (Pennsylvania conviction of manufacture, delivery, or possession with intent to manufacture or deliver a controlled substance, in violation of 35 Pa. Cons.Stat. Ann. 780-113(a)(30), does not constitute an "aggravated felony" under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for immigration purposes, even though defendant was sentenced under state sentencing statute labelled "drug trafficking," since statute provided no more than that the defendant was convicted under the statute of the offense of conviction).

Fifth Circuit

CONVICTION - EFFECT OF STATE LAW ON FEDERAL IMMIGRATION DECISION - IMMIGRATION CONSEQUENCES OF CONVICTIONS ARE QUESTIONS OF FEDERAL, NOT STATE, LAW
United States v. Fazande, 487 F.3d 307 (5th Cir. May 18, 2007) (per curiam) (federal sentence effect of state conviction is a question of federal, not state law, holding Full Faith and Credit Act, 28 U.S.C. 1738, did not require federal sentencing court to follow state law on whether it constituted a conviction to enhance a federal sentence); see United States v. Morales, 854 F.2d 65, 68 (5th Cir. 1988) (the meaning of the phrase "have become final" in 18 U.S.C. 841(b)(1)(B) is a question of federal law, not state law).

DIVISIBLE STATUTE ANALYSIS - STATE LABEL
United States v. Iniguez-Barba, ___ F.3d ___, 485 F.3d 790 (5th Cir. April 25, 2007) (per curiam) ("While we don't look only to the label of the statute at issue to determine what exactly it proscribes, see Fierro-Reyna, 466 F.3d at 326-27, of course we must look to the labels of the statutes to which we compare the statute at issue.")

Eighth Circuit

NATURE OF OFFENSE - STATE LABEL IRRELEVANT
United States v. Chavarria-Brito, 526 F.3d 1184 (8th Cir. May 29, 2008) ("The mere fact that a state labels a crime as forgery does not control whether his crime is actually related to forgery [under federal law]."), citing Taylor v. United States, 495 U.S. 575, 590-591, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990).

Other

MARIANA ISLANDS COME UNDER INA
S.2739 became Public Law No. 110-229 on May 8, 2008, the immigration related provisions are excerpted here. http://www.ilw.com/immigdaily/news/2008,0514-cnmi.shtm