Criminal Defense of Immigrants

Some aggravated felonies are explicitly defined by reference to specific federal criminal statutes.[22]  For example, INA § 101(a)(43)(H) defines as an aggravated felony “an offense described in section 875, 876, 877, of title 18, United States Code (relating to the demand for or receipt of ransom) . . . .”  (emphasis supplied).  Thus, a federal conviction under one of the listed statutes, or a state (or foreign) conviction[23] that requires all the same elements to be proven as would be required in federal court for violation of a listed federal statute is “described” under that section of the aggravated felony definition. 

                Conversely, if the state conviction does not require proof of an element that is required to convict under federal law, the state conviction is not described in the federal statute, and thus the state conviction does not fall within that section of the aggravated felony definition.[24] 

The one exception to this rule is the jurisdictional element required of all federal criminal statutes under the United States Constitution.  This jurisdictional element is often contained in a requirement such as importing or exporting something into the United States, or carrying it across state lines, or specifically acting against the United States government.  The Ninth Circuit, for example, held that a violation of California Penal Code § 12021, possession of a firearm by a felon, constitutes an aggravated felony because it is an offense described in 18 U.S.C. § 922(g)(1), even though the interstate commerce element of the federal statute is not required in order to convict under the state law.[25]

The Board of Immigration Appeals initially accepted the argument that a state court conviction for felon in possession of a firearm could not be an aggravated felony because the state statute defining the offense lacked the jurisdictional element relating to interstate commerce that was present in the analogous federal statute.[26]  However, just a little more than a year later, the BIA reconsidered the question on its own motion and reversed its previous decision to bring its position into conformity with the position of the Ninth Circuit.[27]

                Where a federal statute is cited in the aggravated felony definition, counsel must carefully compare it to the analogous state statute of conviction.  In the Sentencing Guidelines context, the Ninth Circuit has held that the conduct required by the elements of the state offense must invariably fall within the boundaries of the federal offense for the state conviction to be “described in” the cited federal statute: where conduct could violate a state statute, yet not violate the federal statute referred to in the aggravated felony definition, a state conviction does not constitute an aggravated felony “described in” the federal statute.[28]

[22] INA § § 101(a)(43)(B), (C), (D), (E), (F), (H), (I), (J), (K)(ii), (K)(iii), (L), (M)(ii), (N), (O), (P), 8 U.S.C. § § 1101(a)(43)(B), (C), (D), (E), (F), (H), (I), (J), (K)(ii), (K)(iii), (L), (M)(ii), (N), (O), (P).

[23] The third to last paragraph in INA § 101(a)(43), 8 U.S.C. § 1101(a)(43) states: “The term [aggravated felony] applies to an offense described in this paragraph whether in violation of Federal or State law . . . .” 

[24] See, e.g., United States v. Sandoval-Barajas, 206 F.3d 853 (9th Cir. 2000) (state conviction for possession of firearm by any noncitizen was not ‘described in’ federal equivalent, 18 U.S.C. § 922(g)(5), which requires the noncitizen be undocumented).

[25] United States v. Castillo-Rivera, 244 F.3d 1020 (9th Cir. 2001).

[26] Matter of Vasquez-Muniz, 22 I. & N. Dec. 1415 (BIA Dec. 1, 2000), reversed, 23 I. & N. Dec. 207 (BIA Jan. 15, 2002). 

[27] Matter of Vasquez-Muniz, 23 I. & N. Dec. 207 (BIA Jan. 15, 2002).

[28] United States v. Sandoval-Barajas, 206 F.3d 853 (9th Cir. 2000) (decision under the U.S. Sentencing Guidelines reversing 16-level increase in offense level for illegal re-entry, since state firearms offense was not “described in” federal firearms statute).  This comports with the test the BIA set out to compare state offenses to specific referenced federal drug offenses in Matter of Barrett, 20 I. & N. Dec. 171 (BIA 1990).