(D)  Advice for Counsel.  Counsel must carefully consider how the offense is defined under federal statute,[60] common law, the Model Penal Code, the law of most states, or other authoritative sources on criminal law.

 

[60] The elements of an offense contained in a federal criminal statute provide useful input and may serve as the model for the offense definition.  See, e.g., Matter of Espinoza, 22 I. & N. Dec. 889 (BIA 1999) (BIA used federal statutory definition of obstruction of justice in considering whether misprision of felony fit the aggravated felony definition of the common meaning of the term “obstruction of justice” at INA § 101(a)(43)(S), 8 U.S.C. § 1101(a)(43)(S)); United States v. Anderson, 989 F.2d 310 (9th Cir. 1993), discussed in text.  Still, a common-law offense that is an aggravated felony does not necessarily take on the definition of a similarly named federal statute. Cedano-Viera v. Ashcroft, 324 F.3d 1062 (9th Cir. 2003).  The list of aggravated felony offenses in INA § 101(a)(43), 8 U.S.C. § 1101(a)(43) contains several offenses that are directly linked to definitions under federal statute, showing that Congress knew how to incorporate a federal statutory definition when it wanted to.

BIA

AGGRAVATED FELONY - GENERIC DEFINITION - BIA DUTY TO FILL IN AMBIGUITIES IN CONGRESSIONAL INTENT
Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, ___ (BIA May 20, 2008) ("If that language constitutes a plain expression of congressional intent, it must be given effect. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., supra, at 842-43. When Congress's intent is not plainly expressed, however, it is our duty to resolve any ambiguities and fill any statutory gaps in a reasonable manner, at least insofar as they pertain to portions of the statute that fall within the scope of our expertise. INS v. Aguirre-Aguirre, 526 U.S. 415, 424-33 (1999) (following Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., supra, at 843-44). In doing so, we bear in mind that "the words of a statute must be read in their context and with a view to their place in the overall statutory scheme." Food and Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (quoting Davis v. Michigan Dep't of Treasury, 489 U.S. 803, 809 (1989)); see also Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997).").

Sixth Circuit

AGGRAVATED FELONY - GENERIC DEFINITION
Negrete-Rodriguez v. Mukasey, 518 F.3d 497 (7th Cir. Mar. 3, 2008) ("Negrete is arguing that defined in and described in are synonymous. We reject this argument, primarily because it renders the distinction between the terms described in and defined in meaningless. See United States v. Michalek, 54 F.3d 325, 335-36 (7th Cir. 1995). Also, it does not follow that, because Congress has defined some crimes in general terms, it had to define all crimes in general terms in order for the offense's state law counterpart to be included within the definition of an aggravated felony. Indeed, many firearms offenses are not susceptible to being easily described in general terms, see, e.g., 18 U.S.C. 922(g)(4) (offense of possession of a firearm or ammunition by someone who has been adjudicated as a mental defective or who has been committed to a mental institution); while others are dependent on other provisions in a statutory scheme. See, e.g., 18 U.S.C. 922(o) (making it unlawful for a person to possess a "machinegun," where that term is defined elsewhere in the National Firearms Act). Congress could therefore rationally have decided to describe those offenses by reference to the statutory provision where they were located rather than conjuring up an awkward general descriptor, or having to recopy several parts of a statutory scheme.").

Ninth Circuit

AGGRAVATED FELONY - DEFINITION OF AGGRAVATED FELONY - WHERE THE AGGRAVATED FELONY DEFINITION CONTAINS A PHRASE CONGRESS HAS DEFINED UNDER FEDERAL CRIMINA LAW, THE COURT WILL FIRST LOOK TO THAT FEDERAL DEFINITION IN DEFINING THE PHRASE
Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. Oct. 17. 2008) (en banc) (where the aggravated felony definition uses a phrase used elsewhere in federal law, the court will first look at a statute defining that phrase as a federal criminal offense).