Criminal Defense of Immigrants
§ 19.65 Q. Failure To Appear in Court
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The aggravated felony definition includes two offenses relating to failure to appear in court:
(a) failure to appear in court to face charges, see § 19.66, infra, and
(b) failure to appear for sentence. See § 19.67, infra.
As always, a conviction of the offense is required for it to be an aggravated felony: merely failing to appear, without being convicted of the criminal offense of failure to appear, does not constitute an aggravated felony.
AGGRAVATED FELONY - FAILURE TO APPEAR
Renteria-Morales v. Mukasey, 532 F.3d 949 (9th Cir. Jul. 10, 2008) (federal conviction for failure to appear in court, in violation of 18 U.S.C. 3146 is not categorically an aggravated felony as defined by INA 101(a)(43)(Q) or (T); under the modified categorical approach, court was allowed to look to the record of conviction to determine the maximum punishment allowed for the underlying convictions and to determine whether the failure to appear was pursuant to "service of a sentence" or to "answer to or dispose of a charge of a felony.").
Lower Courts of Ninth Circuit
AGGRAVATED FELONY " FAILURE TO APPEAR " CALIFORNIA ELEMENTS
People v. Carroll, 222 Cal.App.4th 1406, 167 Cal.Rptr.3d 60 (3d Dist. Jan. 15, 2014) (affirming conviction of failing to appear in court while on "own recognizance" (OR) release, in violation of Penal Code 1320, where the OR release agreement defendant signed substantially complies with Penal Code 1318).