Criminal Defense of Immigrants


§ 19.4 B. Nature of the Conviction

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As with other conviction-based grounds of deportation, the determination of whether a criminal offense falls within an aggravated felony category made upon examination of the criminal elements to which the noncitizen pleaded or was found guilty.  Rather than looking to the actual facts of the case, the courts apply a categorical analysis, including divisible statute analysis (which allows reference the criminal record of conviction), to examine the minimum conduct sufficient for conviction and then decide whether this minimum conduct falls within the ground of removal.  For a full discussion of this process, see Chapter 16, supra.




Ninth Circuit

Alvarado v. Holder, ___ F.3d ___, 2014 WL 3608713 (9th Cir. Jul. 23, 2014) (Arizona conviction for attempted possession of a dangerous drug, in violation of Arizona Revised Statute 13-3407(A)(1), constituted a violation of state law relating to a controlled substance, for purposes of deportation, under the modified categorical analysis, where attachment to the plea agreement set the factual basis, which identified the controlled substance as methamphetamines). NOTE: The court found that the argument that Arizona attempt is broader than federal attempt was waived for failure to exhaust.