Criminal Defense of Immigrants


§ 21.32 B. Unlisted Offenses

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Non-substantive offenses include convictions for attempt, conspiracy, solicitation, aiding and abetting, accessory after the fact, misprision of a felony, facilitation, and others.  Crime-related grounds of inadmissibility and deportability do not invariably include non-substantive offenses, such as attempt or conspiracy to commit a listed offense, that can apply to any substantive offense.  Many of the crime-related grounds of deportation and inadmissibility specifically list one or more of these non-substantive offenses, but do not list others.[264]  This gives rise to the argument that when Congress lists some non-substantive offenses, but not others, the unlisted ones do not trigger deportation under that ground.[265] Congress knew how to list them when it wanted to do so, and when it did not list them, it did not intend to include them within the ground of deportation or inadmissibility. 


                The maxim of statutory interpretation, “expressio unius est exclusio alterius,” means that where a statute lists the items to which it applies, “all omissions should be understood as exclusions.”[266]  Therefore, a statute that specifies a ground of deportation, and which lists certain offenses as coming within the ground of deportation, will be interpreted as excluding offenses which are not listed.  For example, the statute defining aggravated felonies lists a number of substantive offenses, and then provides that attempt and conspiracy to commit a listed substantive offense are also within the definition of aggravated felony.[267]  When Congress listed certain collateral offenses, i.e., attempt and conspiracy, it omitted others, i.e., accessory after the fact,[268] misprision of a felony,[269] and solicitation.[270]  Even attempt and conspiracy offenses were not deemed part of the firearms conviction ground of deportation until Congress expressly added them.[271]  Therefore, the Board of Immigration Appeals and the federal courts, particularly within the Ninth Circuit, follow the rule that when a statute defining a ground of deportation expressly lists certain nonsubstantive offenses as coming within the ground of deportation, other similar offenses are excluded and do not trigger deportation.

[264] See Appendix G, listing Congress’ specific references to various non-substantive offenses within different grounds of removal.

[265] See, e.g., Matter of Batista-Hernandez, 21 I. & N. Dec. 955 (BIA 1997) (accessory after the fact); United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir. 2001) (offer to sell is equivalent to solicitation, which is not listed in aggravated felony statute).

[266] N. Singer, Statutes and Statutory Construction § 47:23, p. 307 (6th ed. 2002).

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

[268] E.g., Matter of Batista-Hernandez, 21 I. & N. Dec. 955 (BIA 1997) (aggravated felony drug trafficking ground of deportation lists attempt and conspiracy, but not accessory after the fact).

[269] Matter of Espinoza-Gonzalez, 22 I. & N. Dec. 889 (BIA 1999) (en banc) (conviction for misprision of a felony under 18 U.S.C. § 4 (1994) does not constitute a conviction for an aggravated felony under INA § 101(a)(43)(S), 8 U.S.C. § 1101(a)(43)(S) (Supp. II 1996), as an offense relating to obstruction of justice), distinguishing Matter of Batista-Hernandez, 21 I. & N. Dec. 955 (BIA 1997).

[270] United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir. 2001) (offer to sell is equivalent to solicitation, which is not listed in aggravated felony statute); Leyva-Licea v. INS, 187 F.3d 1147 (9th Cir. 1999) (Arizona conviction for solicitation to possess marijuana for sale in violation of Ariz. Rev. Stat. § § 13-1002(A) & 13-3405(A)(2)(B)(5), did not constitute an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), or trigger deportation, since the Controlled Substances Act neither mentions solicitation nor contains any broad catch-all provision that could even arguably be read to cover solicitation); Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir. 1997) (attempt and conspiracy are listed as deportable controlled substances offenses, but solicitation is not); but see Matter of Beltran, 20 I. & N. Dec. 521 (BIA 1992) (solicitation to commit a controlled substances offense falls within the deportation ground as a crime relating to a controlled substance).

[271] Matter of Hou, 20 I. & N. Dec. 513 (BIA 1992) (conspiracy to possess a firearm held not a deportable offense under former INA § 241(a)(2)(C), prior to amendment adding conspiracy and attempt to the firearms ground of deportation); Drax v. Ashcroft, 178 F.Supp.2d 296, 307-308 (E.D.N.Y. 2001) (1994 amendment adding attempt and conspiracy to firearms conviction ground of deportation could not be applied retroactively, under the Supreme Court’s analysis in INS v. St. Cyr, 533 U.S. 289 (2001)).




Matter of Martinez-Espinoza, 25 I. & N. Dec. 118 (BIA Nov. 4, 2009) ("section 212(a)(2)(A)(i)(II) of the Act does not require that a State offense be punishable under Federal law in order to support a charge of inadmissibility. Section 212(a)(2)(A)(i)(II) does contain the parenthetical phrase "as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)," but this phrase modifies only its immediate antecedent (i.e., "controlled substance"), not the whole text of the section."), following Escobar Barraza v. Mukasey, 519 F.3d 388 (7th Cir. 2008).

Third Circuit

Borrome v. Attorney General of the United States, 687 F.3d 150 (3d Cir. Jul. 18, 2012) (federal conviction for unauthorized wholesale distribution in interstate commerce of prescription drugs, in violation of 21 U.S.C. 331(t), 353(e), is not a controlled substances violation for purposes of triggering deportation under INA 237(a)(2)(B)(i)), 8 U.S.C. 1227(a)(2)(B)(i).


Practice Advisory, Su Yon Yi and Katherine Brady, Immigrant Legal Resource Center, Burn Statutes and Counterfeit Drug Offenses (2015), see (discussing Matter of Sanchez-Cornejo, 25 I&N Dec. 273 (BIA 2010) (the offense of delivery of a simulated controlled substance in violation of Texas law is not an aggravated felony, as defined by INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B) (2006), but it is a violation of a law relating to a controlled substance under former INA 241(a)(2)(B)(i), 8 U.S.C. 125l(a)(2)(B)(i) (1994))