For many grounds of removal, including the CMT inadmissibility ground,[211] (but not the CMT grounds of deportation)[212], 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 N. Tooby, J. Rollin, Criminal Defense of Immigrants § § 19.13-19.20, Appendix G (4th Ed. 2007).

 

            The CMT grounds of deportation do not expressly list attempt or conspiracy,[213] 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.  However, this has led at least one court to find that solicitation offenses are included within the CMT deportation ground. [4]

[214] INA § 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I).  See Chapter 4, supra.

[211] This argument does not, however, apply to the CMT grounds of deportation, which do not list attempt and conspiracy.  INA § § 237(a)(2)(A)(i)(I), (ii), 8 U.S.C. § § 1227(a)(2)(A)(2)(A)(i)(I), (ii).

[212] INA § § 237(a)(2)(A)(i), (ii).

[213] 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").  Cf. Longview Fibre Co. v. Rasmussen, 980 F.2d 1307, 1312-13 (9th Cir. 1992) (statutory construction maxim expressio unius est exclusio alterius means when some statutory provisions expressly mention a requirement, the omission of that requirement from other statutory provisions implies that the drafter intended the inclusion of the requirement in the instances in which it was listed but not in others).

First Circuit

MORAL TURPITUDE - ATTEMPT
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

MORAL TURPITUDE - ATTEMPT
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).

Other

SOLICITATION - "U" VISA STATUTE SPECIFICALLY INCLUDES SOLICITATION, ALONG WITH ATTEMPT AND CONSPIRACY, SO CONGRESS KNEW HOW TO INCLUDE IT WHEN IT WANTED TO
INA 101(a)(15)(iii), 8 U.S.C. 1101(a)(15)(iii) reads in relevant part: "the criminal activity referred to in this clause is that involving or more of the following or any similar activity in violation of Federal, State or local criminal law . . . or attempt, conspiracy, or solicitation to commit any of the above mentioned crimes . . . ."