Criminal Defense of Immigrants


§ 19.86 FF. RICO Offenses

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A conviction of “an offense described in § 1962 of Title 18 (relating to racketeer influenced corrupt organizations), or an offense described in section 1084 (if it is a second or subsequent offense) or 1955 of that title (relating to gambling offenses), for which a sentence of one year imprisonment or more may be imposed” is an aggravated felony.  The elements of this category are as follows:


(1)  a conviction of an offense

(2)     described in

(a) 18 U.S.C. § 1962 (relating to racketeer influenced corrupt organizations), or

(b) 18 U.S.C. § 1084 (if it is a second or subsequent offense) or

                                (c) 18 U.S.C. § 1955 (relating to gambling offenses),

(3)     for which a sentence of one year imprisonment or more may be imposed.


                A first conviction of violating 18 U.S.C. § 1084 cannot trigger this ground of deportation.  A federal conviction for an unlisted statute cannot trigger deportation under this ground.  A state conviction under a broader statute should not trigger this ground unless the record of conviction shows that the elements of the offense of conviction clearly fall entirely within one of the listed federal statutes. 


                This category requires a potential sentence of one year before the offense is considered an aggravated felony.  See § 10.78, supra. 



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).

Ninth Circuit

Murillo-Prado v. Holder, __ F.3d __ (9th Cir. Nov. 20, 2013) (Arizona conviction for illegally conducting an enterprise is not categorically an aggravated felony RICO conviction, but the record of conviction established respondent was convicted of aggravated felony racketeering). Note: This holding may be inconsistent with Bautista v. Atty Gen. of the U.S., ___ F.3d ___ (3d Cir. Feb. 21, 2014)(New York conviction of attempted arson in the third degree, in violation of Penal Law 110 and 150.10, did not categorically constitute a match for the elements of 18 U.S.C. 844(i), and is therefore not an aggravated felony under INA 101(a)(43)(E)(i), 8 U.S.C. 1101(a)(43)(E)(i), because the New York arson statute does not require the federal jurisdictional element that the object of the arson be used in interstate commerce, as the corresponding federal statute does, which the Supreme Court has found to be a critical and substantive element of that arson offense, so it did not disqualify him from eligibility for cancellation of removal under INA 240A(a)(3), 8 U.S.C. 1229b(a)(3)).
Murillo-Prado v. Holder, 735 F.3d 1152, 1157 (9th Cir. Nov. 20, 2013) (Arizona conviction for racketeering, in violation of Ariz.Rev.Stat. 13"2301, is not categorically a RICO aggravated felony offense, because Arizona's definition of racketeering includes two offenses not explicitly listed in its federal counterpart: (1) [i]ntentional or reckless false statements or publications concerning land for sale or lease or sale of subdivided lands or sale and mortgaging of unsubdivided lands, and (2) making [o]bscene or indecent telephone communications to minors for commercial purposes,).