Criminal Defense of Immigrants


§ 20.24 G. Non-Substantive Offenses

Skip to § 20.

For more text, click "Next Page>"

For many grounds of removal, including the CMT inadmissibility ground,[147] there is an argument that when Congress expressly included the non-substantive offenses of attempt and conspiracy, it in effect excluded all other non-substantive offenses, such as accessory after the fact, misprision of a felony, solicitation, and other non-substantive offenses.  This argument and others regarding specific non-substantive offenses are laid out more fully in § § 19.13-19.20, infra.  See Appendix G, infra.

                The CMT grounds of deportation do not expressly list attempt or conspiracy, thus giving rise to an additional argument that a conviction of attempt or conspiracy to commit a CMT cannot form one of the two CMT convictions required to trigger deportation.  On the other hand, the DHS could argue that all non-substantive offenses are included under this ground.


[147] INA § 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I).  See § § 20.25-20.31, infra.



Barragan-Lopez v. Mukasey, 508 F.3d 899 (9th Cir. Nov. 21, 2007) (Arizona conviction for solicitation to possess at least four pounds of marijuana for sale, in violation of Ariz. Rev. Stat. 13-1002(A) and (B)(2), 13-3405(A)(2) and (B)(6), constitutes a crime involving moral turpitude for the purposes of INA 237(a)(2)(A)(i), 8 U.S.C. 1227(a)(2)(A)(i), since this ground does not specifically list "attempt" and "conspiracy," and thus does not impliedly exclude "solicitation").

Note: The court applied a "target offense" style analysis. Under this analysis, solicitation to commit a non-CMT offense should not be considered a CMT. The case also holds that solicitation offenses are included in INA 237(a)(2)(A)(i), 8 U.S.C. 1227(a)(2)(A)(i), because that section does not mention "attempt and conspiracy" to the exclusion of other non-substantive offenses. This case would not apply to the CMT ground of inadmissibility, since INA 212(a)(2)(A)(i)(I), 8 U.S.C. 1182(a)(2)(A)(i)(I) does include the "attempt or conspiracy" language, and thus impliedly excludes solicitation offenses. The same holds true for any other ground of deportation or inadmissibility that lists attempt and conspiracy, but not solicitation, such as the controlled substances ground of inadmissibility, INA 212(a)(2)(A)(i)(II), 8 U.S.C. 1182(a)(2)(A)(i)(II), and the aggravated felony ground of deportation, INA 101(a)(43)(U), 8 U.S.C. 1101(a)(43)(U), inter alia.


Matter of VO, 25 I. & N. Dec. 426 (BIA Mar. 18, 2011) (where the substantive offense underlying a noncitizen's conviction for an attempt offense is a crime involving moral turpitude, the noncitizen is considered to have been convicted of a crime involving moral turpitude for purposes of INA 237(a)(2)(A), even though that section makes no reference to attempt offenses).

Dababneh v. Gonzales, __ F.3d __ (7th Cir. Dec. 20, 2006) (Department of Homeland Security may indicate in the NTA that it will give the alien subsequent notice of the precise time and place of the hearing once it files the NTA with the appropriate immigration court).

First Circuit

United States v. Ellis, ___ F.3d ___, 2009 WL 783262 (5th Cir. Mar. 26, 2009) (the Model Penal Code 5.01(1) "substantial step" definition of "attempt" is the majority view, having been adopted by 12 circuits plus 26 states, and arguably should be used to define the term for purposes of the Taylor v. United States analysis in the career offender sentence enhancement context of USSG 4B1.2).

Fifth Circuit

United States v. Ellis, ___ F.3d ___, 2009 WL 783262 (5th Cir. Mar. 26, 2009) (North Carolina conviction of attempted common law robbery, "the felonious, non-consensual taking of money or personal property from the person or presence of another by means of violence or fear," see N.C. Gen. Stat. 14-1.5, 14-87.1 (setting punishments for attempt and robbery without defining them), presents a close question as to whether it qualifies as a "crime of violence" under USSG 4B1.2 for purposes of imposing a career offender sentence enhancement for a federal robbery conviction, because of the argument that North Carolina defines the term "attempted" more broadly (to require only "slight acts") than the "substantial step" required under the Model Penal Code and the majority of states, as well as 12 circuits; defendant forfeited right to bring this issue by failing to raise it before the district court); cf. United States v. Taylor, 529 F.3d 1232, 1237-38 (9th Cir.2008) (finding that Arizona's attempt statute, which used the phrase "any step," was broader than the federal definition, but that Arizona courts interpreted the statute to mean "substantial step"); United States v. Sarbia, 367 F.3d 1079, 1086 (9th Cir.2004) (Nevada's attempt statute and case law uses the "slight act" approach, but is coextensive with the federal, "substantial step" approach).

Ninth Circuit

Navarro-Lopez v. Gonzales, __ F.3d __, 2007 WL 2713211 (9th Cir. Sept. 19, 2007) (California conviction for accessory after the fact, in violation of Penal Code 32, is not a crime of moral turpitude as the minimum conduct required to violate the statute includes acts that are not necessarily "morally shocking," such a mother providing food to her son, or being accessory after the fact to an offense that is not itself an crime of moral turpitude).