Criminal Defense of Immigrants

(B)  Aggravated Felony.  Although the aggravated felony ground of deportation does not mention any non-substantive offenses,[275] the aggravated felony definition specifically states that a conviction for attempt or conspiracy to commit an aggravated felony is itself an aggravated felony.[276]  Counsel can therefore argue, for example, that a conviction for solicitation to commit an aggravated felony drug offense is not an aggravated felony.[277]  See § 19.13-19.20, supra.

[275] INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii).

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

[277] 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); 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).