Criminal Defense of Immigrants


§ 19.11 E. Conviction Jurisdiction

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The aggravated felony definition includes convictions under “Federal or State law and . . . foreign law.”[106] The maxim of statutory interpretation, “expressio unius est exclusio alterius,” means that where a statute lists the items to which it applies, “all omissions should be understood as exclusions.”[107]  Therefore, a statute that specifies a ground of deportation, and which lists certain jurisdictions as producing convictions that fall within the ground of deportation, will be interpreted as excluding other jurisdictions which are not listed.  Convictions in unlisted jurisdictions, i.e., convictions which are not entered under federal, state, or foreign law, are therefore not aggravated felonies.  This includes convictions under local law, tribal law in the United States, and perhaps U.S. military law.  See § 7.26, supra.

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

[107] N. Singer, Statutes and Statutory Construction § 47:23, p. 307 (6th ed. 2002).



Second Circuit

Torres v. Holder, ___ F.3d ___, ___, 2014 WL 4085865 (2d Cir. Aug. 20, 2014) (New York conviction of third-degree attempted arson, in violation of New York Penal Law 110, 150.10, constitutes an aggravated felony arson offense, despite lacking a federal jurisdictional element: Because we conclude that the statute is ambiguous, we owe deference to the BIA's interpretation unless it is unreasonable. See Chevron, 467 U.S. at 842"43; Rotimi v. Holder, 577 F.3d 133, 139 (2d Cir.2009).); accord, Spacek v. Holder, 688 F.3d 536 (8th Cir.2012) (interpreting 8 U.S.C. 1101(a)(43)(J), relating to racketeering offenses); Nieto Hernandez v. Holder, 592 F.3d 681 (5th Cir.2009) (interpreting 8 U.S.C. 1101(a)(43)(E)(ii), relating to firearms offenses); Negrete"Rodriguez v. Mukasey, 518 F.3d 497 (7th Cir.2008) (same); United States v. Castillo"Rivera, 244 F.3d 1020 (9th Cir.2001) (same); contra, Bautista v. Attorney Gen., 744 F.3d 54, 56 (3d Cir.2014).

Eighth Circuit

Spacek v. Holder, 688 F.3d 536 (8th Cir. Jul. 31, 2012) (North Dakota state conviction of racketeering constituted aggravated felony racketeering conviction, under INA 101(a)(43)(J), 8 U.S.C. 1101 (a)(43)(J), for immigration purposes, even though the state statute omitted the federal jurisdictional element).