Under the analysis of Bautista v. Atty Gen. of the U.S., 744 F.3d 54, 59 (3d Cir. Feb. 28, 2014), the court concluded that offenses in the aggravated felony definition statute, INA 101(a)(43), 8 U.S.C. 1101(a)(43), that are listed as described in a specific federal criminal statute, must be actually punishable under that statute to be considered aggravated felonies. This means they cannot be met by corresponding state offenses, a person convicted of a state offense is not actually punishable under the federal criminal statute, because the state offense lacks any element, such as the federal jurisdictional element, of the federal statute(s) referred to in the definition. After considering offenses in the aggravated felony statute that are defined in a listed federal statute, the court in Bautista continued:

In contrast, Congress employs described in to classify a state conviction as an aggravated felony when an offense would be punishable under a federal statute because the conduct or state statute of the conviction encompasses the same elements as a federal statute.

Id. at 59. The aggravated felony statute reinforces this conclusion by referring only to state offenses described in portions of this definition as qualifying under the definition. See INA 101(a)(43) (paragraph following U), 8 U.S.C. 1101(a)(43) (paragraph following U) (The term applies to an offense described in this paragraph whether in violation of Federal or State law . . . .) (emphasis supplied). This exact language states in effect that state offenses may only qualify under portions of this definition that use the formulation described in but not to those said to be defined in federal statutes.

The following checklist contains the aggravated felonies the statute states are described in a federal statute. To meet these definitions, and be considered aggravated felonies, a conviction must be for an offense that is in fact punishable under the listed federal statute, so all elements, including federal jurisdictional elements, must be present in the definition of the offense of conviction, even if it is a state offense, before the conviction can be considered an aggravated felony.

(1) an offense described in section 1956 of Title 18 (relating to laundering of monetary instruments) or section 1957 of that title (relating to engaging in monetary transactions in property derived from specific unlawful activity) if the amount of the funds exceeded $10,000; under INA 101(a)(43)(D), 8 U.S.C. 1101(a)(43)(D).

(2) an offense described in-- (i) section 842(h) or (i) of Title 18, or section 844(d), (e), (f), (g), (h), or (i) of that title (relating to explosive materials offenses); (ii) section 922(g)(1), (2), (3), (4), or (5), (j), (n), (o), (p), or (r) or 924(b) or (h) of Title 18 (relating to firearms offenses); or (iii) section 5861 of Title 26 (relating to firearms offenses); under INA 101(a)(43)(E), 8 U.S.C. 1101(a)(43)(E).

(3) an offense described in section 875, 876, 877, or 1202 of Title 18 (relating to the demand for or receipt of ransom); under INA 101(a)(43)(H), 8 U.S.C. 1101(a)(43)(H).

(4) an offense described in section 2251, 2251A, or 2252 of Title 18 (relating to child pornography); under INA 101(a)(43)(I), 8 U.S.C. 1101(a)(43)(I).

(5) an offense described in section 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; under INA 101(a)(43)(J), 8 U.S.C. 1101(a)(43)(J).

(6) an offense that -- (i) relates to the owning, controlling, managing, or supervising of a prostitution business; (ii) is described in section 2421, 2422, or 2423 of Title 18 (relating to transportation for the purpose of prostitution) if committed for commercial advantage; or (iii) is described in any of sections 1581-1585 or 1588-1591 of Title 18 (relating to peonage, slavery, involuntary servitude, and trafficking in persons); under INA 101(a)(43)(K), 8 U.S.C. 1101(a)(43)(K).

(7) an offense described in -- (i) section 793 (relating to gathering or transmitting national defense information), 798 (relating to disclosure of classified information), 2153 (relating to sabotage) or 2381 or 2382 (relating to treason) of Title 18; (ii) section 421 of Title 50 (relating to protecting the identity of undercover intelligence agents); or (iii) section 421 of Title 50 (relating to protecting the identity of undercover agents); under INA 101(a)(43)(L), 8 U.S.C. 1101(a)(43)(L).

(8) an offense that -- (i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; or (ii) is described in section 7201 of Title 26 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000; under INA 101(a)(43)(M), 8 U.S.C. 1101(a)(43)(M).

(9) an offense described in paragraph (1)(A) or (2) of section 1324(a) of this title (relating to alien smuggling), except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien's spouse, child, or parent (and no other individual) to violate a provision of this chapter; under INA 101(a)(43)(N), 8 U.S.C. 1101(a)(43)(N).

(10) an offense described in section 1325(a) or 1326 of this title committed by an alien who was previously deported on the basis of a conviction for an offense described in another subparagraph of this paragraph; under INA 101(a)(43)(O), 8 U.S.C. 1101(a)(43)(O).

(11) an offense (i) which either is falsely making, forging, counterfeiting, mutilating, or altering a passport or instrument in violation of section 1543 of Title 18 or is described in section 1546(a) of such title (relating to document fraud) and (ii) for which the term of imprisonment is at least 12 months, except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien's spouse, child, or parent (and no other individual) to violate a provision of this chapter; under INA 101(a)(43)(P), 8 U.S.C. 1101(a)(43)(P).

(12) an offense relating to a failure to appear by a defendant for service of sentence if the underlying offense is punishable by imprisonment for a term of 5 years or more; under INA 101(a)(43)(Q), 8 U.S.C. 1101(a)(43)(Q).

(13) an offense relating to commercial bribery, counterfeiting, forgery, or trafficking in vehicles the identification numbers of which have been altered for which the term of imprisonment is at least one year; under INA 101(a)(43)(R), 8 U.S.C. 1101(a)(43)(R).

(14) an offense relating to obstruction of justice, perjury or subornation of perjury, or bribery of a witness, for which the term of imprisonment is at least one year; under INA 101(a)(43)(S), 8 U.S.C. 1101(a)(43)(S).

(15) an offense relating to a failure to appear before a court pursuant to a court order to answer to or dispose of a charge of a felony for which a sentence of 2 years' imprisonment or more may be imposed; under INA 101(a)(43)(T), 8 U.S.C. 1101(a)(43)(T).

(16) an attempt or conspiracy to commit an offense described in this paragraph. under INA 101(a)(43)(U), 8 U.S.C. 1101(a)(43)(U).