Criminal Defense of Immigrants

 

The INA explicitly includes attempt to commit an aggravated felony offense as an aggravated felony.[325]  A misdemeanor Washington State conviction of attempted child molestation in the third degree, for example, was found to be an aggravated felony under INA § 101(a)(43)(A).[326]  This is equally true for immigration and sentencing purposes.[327]  An attempt to commit a non-aggravated felony conviction would not constitute an aggravated felony.[328]

 

A generic definition of attempt has emerged from both the BIA and circuit courts.  The Second Circuit has upheld the BIA’s definition of the term “attempt” in the aggravated felony definition as requiring “the presence of criminal intent and the completion of a substantial step toward committing the crime,” as a reasonable interpretation of the statutory term to be accorded Chevron deference.[329]  The Seventh Circuit has also adopted the “substantial step” test as the generic federal definition of attempt.[330]  Likewise, a New York state conviction for attempted robbery in the third degree has been found to meet the definition of “aggravated felony” under U.S. Sentencing Guidelines because it satisfies the federal definition of attempt, which requires a “substantial step” towards the commission of the offense.[331]

The Model Penal Code, however, defines attempt as any one of three subdivisions, only one of which is the “substantial step” approach.[332]  Some states punish as attempt those who take any action to accomplish the forbidden purpose, even if it does not amount to a substantial step.[333]  Therefore, in those states, an attempt conviction may not qualify as an aggravated felony where the conviction in question either (a) falls in the overbroad portion of the state statute, and is thus expressly not included within the aggravated felony definition of attempt, or (b) has a record of conviction that does not unambiguously establish that the state conviction falls within the aggravated felony “substantial step” definition of attempt.

 

Neither the criminal nor the immigration charging papers necessarily need to charge the “attempt” theory explicitly for a noncitizen to be found subject to removal under an “attempt” aggravated felony theory.  In Matter of Onyido, a noncitizen convicted of submitting a false claim with intent to defraud, arising from an unsuccessful attempt to obtain $15,000 from an insurance company, was held to have been convicted of an “attempt” to commit a fraud in which the loss to the victim exceeded $10,000,[334] despite the fact that the OSC did not charge “attempt” as a ground of deportation in immigration court, there was no actual loss, and the noncitizen was not expressly convicted of an “attempt.”[335]  Burglary of an automobile has likewise been held to be an aggravated felony on the theory that it was an attempted theft conviction.[336]

 

An attempt to commit a crime which has recklessness as a mental element was held not to be a crime at all, since a person cannot intend to commit a criminally reckless act, and the “crime of attempted reckless endangerment is nonexistent since it is a non-intent offense.”[337]  While this was a decision under the crime of moral turpitude deportation ground, its reasoning seems to apply perfectly to the aggravated felony deportation ground: this offense is not a crime, so it cannot be an aggravated felony conviction any more than it can be a crime of moral turpitude.

 

That an offense may have been impossible to commit does not stop the immigration authorities as charging a conviction as an attempt to commit an aggravated felony.[338]

 

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

[326] United States v. Marin-Navarette, 244 F.3d 1284 (11th Cir. 2001).

[327] United States v. Sarbia, 367 F.3d 1079 (9th Cir. May 14, 2004) (in defining “crime of violence” per U.S.S.G. § 4B1.2, there is no difference between commission and attempted commission of an offense).

[328] Parrilla v. Gonzales, 414 F.3d 1038 (July 11, 2005) (even if Washington offense of communicating with a minor for immoral purposes constituted attempt, within the meaning of the aggravated felony definition, INA § 101(a)(43)(U), 8 U.S.C. § 1101(a)(43)(U), the substantive offense did not categorically constitute sexual abuse of a minor, so the presumed attempt likewise did not constitute an aggravated felony).

[329] Sui v. INS, 250 F.3d 105 (2d Cir. 2001) (possession of counterfeit securities does not amount to attempt to commit a fraud offense).

[330] United States v. Martinez-Garcia, 268 F.3d 460 (7th Cir. 2001) (upholding classification of auto burglary conviction as an attempted theft aggravated felony).

[331] United States v. Fernandez-Antonia, 278 F.3d 150 (2d Cir. 2002).  The New York statute at issue criminalized “an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime,” N.Y. Penal Law § 110.00, which has been interpreted to require a “dangerous proximity” to the crime.  The federal criminal law requires that in order for a defendant to be guilty of attempt, he must take a “substantial step” toward the commission of the offense with the intent to commit the crime. See, e.g., United States v. Manley, 632 F.2d 978, 987-88 (2d Cir. 1980).  The court equated these two concepts, finding any difference between the two statutes “more semantic than real.” United States v. Fernandez-Antonia, 278 F.3d 150 (2d Cir. 2002).

[332] American Law Institute, Model Penal Code § 5.01(1)(C) (1985).

[333] E.g., Georgia and Illinois.  See American Law Institute, supra, at 299 n.3.

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

[335] Matter of Onyido, 22 I. & N. Dec. 552 (BIA 1999).

[336] United States v. Martinez-Garcia, 268 F.3d 460 (7th Cir. Sept. 28, 2001), cert. denied, 122 S.Ct. 1111 (2002) (Illinois conviction of burglary of vehicle with intent to commit theft constituted “attempt”, under INA § 101(a)(43)(U), 8 U.S.C. § 1101(a)(43)(U), to commit a “theft offense” under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G) for purposes of enhancing an illegal re-entry sentence under U.S.S.G. § 2L1.2(b)(1)(A), since conduct admitted by defendant in plea was sufficient; since neither plea nor charging document encompassed an admission or charge that he completed act of taking property from vehicle, the offense was aggravated felony attempt).

[337] Knapik v. Ashcroft, 384 F.3d 84 (3d Cir. Sept. 17, 2004) (New York conviction of attempted reckless endangerment in the first degree, in violation of New York Penal Law § 120.25, does not constitute a crime of moral turpitude for deportation purposes, since a person cannot intend to commit a criminally reckless act, and the “crime of attempted reckless endangerment is nonexistent since it is a non-intent offense.”), citing People v. Trepanier, 84 A.D.2d 374, 380, 446 N.Y.S.2d 829 (N.Y.App.Div. 1982) (affirming the lower court’s decision to dismiss the indictment as to this charge).

[338] Cf. Hernandez-Alvarez v. Gonzales, 432 F.3d 763 (7th Cir. Dec. 28, 2005) (Illinois conviction of indecent solicitation of a child, in violation of 720 ILCS § 5/11-6(a) (2000), constituted sexual abuse of a minor aggravated felony, under INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A), even though offense could not actually have been completed because the person solicited was an adult police officer rather than a minor).