(B)  Gratuity-Type Offenses Excluded.  In addition to bribery, federal law prohibits giving a gratuity to a federal official.  If the conviction is under a statute analogous to the anti-gratuity statute, rather than the bribery statute, it does not fall within this aggravated felony category.  Although the federal prohibitions against bribery and against giving a gratuity are housed in different subdivisions of the same section of the United States Code (18 U.S.C. § 201), there is an enormous difference between them, both in terms of their elements and in how severely they are punished.  The Supreme Court outlined that difference as follows:

 

Subsections (b) and (c) [of 18 U.S.C. § 201] set forth, respectively, two separate crimes – or two pairs of crimes, if one counts the giving and receiving of unlawful gifts as separate crimes – with two different sets of elements and authorized punishments. The first crime, described in § § 201(b)(1) as to the giver, and § § 201(b)(2) as to the recipient, is bribery, which requires a showing that something of value was corruptly given, offered, or promised to a public official (as to the giver) or corruptly demanded, sought, received, accepted, or agreed to be received or accepted by a public official (as to the recipient) with intent, inter ail, ‘to influence any official act’ (giver) or in return for ‘being influenced in the performance of any official act’ (recipient). The second crime, defined in § § 201(c)(1)(A) as to the giver, and § § 201(c)(1)(B) as to the recipient, is illegal gratuity, which requires a showing that something of value was given, offered, or promised to a public official (as to the giver), or demanded, sought, received, accepted, or agreed to be received or accepted by a public official (as to the recipient), ‘for or because of any official act performed or to be performed by such public official.’

 

            The distinguishing feature of each crime is its intent element.  Bribery requires intent ‘to influence’ an official act or ‘to be influenced’ in an official act, while illegal gratuity requires only that the gratuity be given or accepted ‘for or because of’ an official act. In other words, for bribery there must be a quid pro quo – a specific intent to give or receive something of value in exchange for an official act. An illegal gratuity, on the other hand, may constitute merely a reward for some future act that the public official will take (and may already have determined to take), or for a past act that he has already taken. The punishments prescribed for the two offenses reflect their relative seriousness: Bribery may be punished by up to 15 years’ imprisonment, a fine of $ 250,000 ($ 500,000 for organizations) or triple the value of the bribe, whichever is greater, and disqualification from holding government office. See 18 U.S.C. § § 201(b) and 3571. Violation of the illegal gratuity statute, on the other hand, may be punished by up to two years’ imprisonment and a fine of $ 250,000 ($ 500,000 for organizations).[341]

[341] See 18 U.S.C. § § 201(c) and 3571; United States v. Sun-Diamond Growers, 526 U.S. 398, 404-405 (1999); see also United States v. Strand, 574 F.2d 993, 995-96 (9th Cir. 1978).

BIA

AGGRAVATED FELONY " COMMERCIAL BRIBERY " WITNESS BRIBERY
Matter of Gruenangerl, 25 I. & N. Dec. 351, 356 (BIA 2010) (federal conviction of bribery of a public official, for the purpose of influencing official action, in violation of 18 U.S.C. 201(b)(1)(A), is not an offense relating to commercial bribery and is therefore not an aggravated felony under INA 101(a)(43)(R), 8 U.S.C. 1101(a)(43)(R)).

AGGRAVATED FELONY " COMMERCIAL BRIBERY " DEFINITION
Although the BIA did not specify a definition of commercial bribery that it would officially adopt for aggravated felony purpose, the court cited the following definitions in finding that a conviction under 18 U.S.C. 201(b)(1)(A), bribery of a public official, was not an aggravated felony commercial bribery offense: Blacks Law Dictionary 204 (8th ed. 2004) defines commercial bribery as follows: 1. The knowing solicitation or acceptance of a benefit in exchange for violating an oath of fidelity, such as that owed by an employee, partner, trustee, or attorney. Model Penal Code 224.8(1). 2. A supposedly disinterested appraisers acceptance of a benefit that influences the appraisal of goods or services. Model Penal Code 224.8(2). 3. Corrupt dealing with the agents or employees of prospective buyers to secure an advantage over business competitors. Section 224.8 of the Model Penal Code defines commercial bribery as follows: (1) A person commits a misdemeanor if he solicits, accepts or agrees to accept any benefit as consideration for knowingly violating or agreeing to violate a duty of fidelity to which he is subject as: (a) partner, agent, or employee of another; (b) trustee, guardian, or other fiduciary; (c) lawyer, physician, accountant, appraiser, or other professional adviser or informant; (d) officer, director, manager or other participant in the direction of the affairs of an incorporated or unincorporated association; or (e) arbitrator or other purportedly disinterested adjudicator or referee. (2) A person who holds himself out to the public as being engaged in the business of making disinterested selection, appraisal, or criticism of commodities or services commits a misdemeanor if he solicits, accepts or agrees to accept any benefit to influence his selection, appraisal or criticism. (3) A person commits a misdemeanor if he confers, or offers or agrees to confer, any benefit the acceptance of which would be criminal under this Section. Matter of Gruenangerl, 25 I. & N. Dec. 351, 356 (BIA 2010).