The aggravated felony deportation ground lists dozens of substantive criminal offenses.[114]  It also specifically lists “attempt and conspiracy to commit an offense described in this paragraph” as falling within the aggravated felony definition.[115]  See § 19.14, infra.  This specific listing of two non-substantive offenses, attempt and conspiracy, gives rise to the argument that Congress did not include other similar non-substantive offenses since it did not list them in the aggravated felony statute.  See Appendix G, infra.

 

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.”[116]  Therefore, a statutory ground of removal which lists certain non-substantive offenses as triggering the ground of removal will be interpreted as excluding others which are not listed.

When Congress listed certain collateral offenses, i.e., attempt and conspiracy, it omitted others, i.e., accessory after the fact,[117] misprision of a felony,[118] solicitation,[119] and aiding and abetting.[120]  Even attempt and conspiracy offenses were not deemed part of the firearms conviction ground of deportation until Congress expressly added them.[121]  Therefore, the Board of Immigration Appeals and the federal courts, particularly within the Ninth Circuit, follow the rule that when a statute defining a ground of deportation expressly lists certain offenses as coming within the ground of deportation, other similar offenses are excluded and do not trigger deportation.

 

Immigration counsel should therefore be alert for instances in which it is possible to argue (a) that the conviction is not for a substantive offense, but rather for an unlisted non-substantive offense, or (b) that the record of conviction is vague as to whether the conviction is for a substantive or a non-substantive offense, in which case the government cannot sustain its burden of proving by clear and convincing evidence that the noncitizen is deportable.  Criminal counsel, however, should not rely on this argument, but should avoid any conviction that arguably constitutes an aggravated felony.

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

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

[116] N. Singer, Statutes and Statutory Construction § 47:23, p. 307 (6th ed. 2002). ; Longview Fibre Co. v. Rasmussen, 980 F.2d 1307, 1312-13 (9th Cir. 1992) (statutory construction maxim expressio unius est exclusio alterius means when some statutory provisions expressly mention a requirement, the omission of that requirement from other statutory provisions implies that the drafter intended the inclusion of the requirement in some instances but not others).

[117] E.g., Matter of Batista-Hernandez, 21 I. & N. Dec. 955 (BIA 1997) (aggravated felony drug trafficking ground of deportation lists attempt and conspiracy, but not accessory after the fact).

[118] Matter of Espinoza-Gonzalez, 22 I. & N. Dec. 889 (BIA 1999) (en banc) (conviction for misprision of a felony under 18 U.S.C. § 4 (1994) does not constitute a conviction for an aggravated felony under INA § 101(a)(43)(S), 8 U.S.C. § 1101(a)(43)(S) (Supp. II 1996), as an offense relating to obstruction of justice, distinguishing Matter of Batista-Hernandez, 21 I. & N. Dec. 955 (BIA 1997)).

[119] United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir. 2001) (offer to sell is equivalent to solicitation, which is not listed in aggravated felony statute); Leyva-Licea v. INS, 187 F.3d 1147 (9th Cir. 1999) (Arizona conviction for solicitation to possess marijuana for sale in violation of Ariz. Rev. Stat. § § 13-1002(A) & 13-3405(A)(2)(B)(5), did not constitute an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), or trigger deportation, since the Controlled Substances Act neither mentions solicitation nor contains any broad catch-all provision that could even arguably be read to cover solicitation); Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir. 1997) (attempt and conspiracy are listed as deportable controlled substances offenses, but solicitation is not); but see Matter of Beltran, 20 I. & N. Dec. 521 (BIA 1992) (solicitation to commit a controlled substances offense falls within the deportation ground as a crime relating to a controlled substance).

[120] But see Gonzales v. Duenas-Alvarez, 549 U.S. ___, 127 S.Ct. 815, 820  (Jan. 17, 2007). (generic definition of ‘theft’ for aggravated felony purposes includes aiding and abetting theft), overruling Penuliar v. Ashcroft, 395 F.3d 1037 (9th Cir. Jan. 12, 2005).

[121] Matter of Hou, 20 I. & N. Dec. 513 (BIA 1992) (conspiracy to possess a firearm held not a deportable offense under former INA § 241(a)(2)(C), prior to amendment adding conspiracy and attempt to the firearms ground of deportation); Drax v. Ashcroft, 178 F.Supp.2d 296, 307-308 (E.D.N.Y. 2001) (1994 amendment adding attempt and conspiracy to firearms conviction ground of deportation could not be applied retroactively, under the Supreme Court’s analysis in INS v. St. Cyr, 533 U.S. 289 (2001)).

Ninth Circuit

NON-SUBSTANTIVE OFFENSES - STATUTORY CONSTRUCTION - EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS
Longview Fibre Co. v. Rasmussen, 980 F.2d 1307, 1312-13 (9th Cir. 1992) (statutory construction maxim expressio unius est exclusio alterius means when some statutory provisions expressly mention a requirement, the omission of that requirement from other statutory provisions implies that the drafter intended the inclusion of the requirement in the instances in which it was listed but not in others).