Hernandez-Cruz v. Holder, ___ F.3d ___ (9th Cir. Jul.7, 2011) (California conviction of second-degree commercial burglary, in violation of Penal Code 459, did not constitute attempted theft aggravated felony, under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), under the modified categorical analysis, because [s]imply entering a commercial building . . . is not in itself a substantial step supporting attempted theft liability.).

Jimenez-Guzman v. Holder, 642 F.3d 1294, 2011 WL 2547562 (10th Cir. Jun. 28, 2011) (government must establish by clear, unequivocal, and convincing evidence that the facts alleged as grounds of removability are true: that is, that the criminal conviction was for possession of a substance that is not only listed under [state] law, but also contained in the federal schedules of [the Controlled Substances Act].); quoting Ruiz"Vidal v. Gonzales, 473 F.3d 1072, 1076, 1078 (9th Cir. 2007) (internal quotation marks and brackets omitted).

18 U.S.C. 1028(a)(3) (knowingly possessing five or more identification documents with the intent unlawfully to use or transfer -- other than those issued lawfully for the use of the possessor, authentication documents or false identification documents).

Immigration counsel can argue that this offense is not a crime of moral turpitude, along the following lines.

INA 101(a)(48)(A) (statutory definition of conviction); United States v. Hidalgo-Macias, 300 F.3d 281, 285 (2d Cir. 2002) (rejecting the argument that a one-year sentence on a violation of probation was a separate conviction from the conviction for the underlying offense, and holding that the probation violation did not make the underlying offense a crime of violence aggravated felony: "the imposition of a sentence of imprisonment following revocation of probation [in NY] is a modification of the original sentence"); In re Ahmed, 2005 WL 3952705 (Aug.

United States v. Espinoza-Morales, 621 F.3d 1141 (9th Cir. Sept. 10, 2010) (California conviction of sexual battery, in violation of Penal Code 243.4(a), unlawful sexual touching of a restrained person, did not constitute a crime of violence for illegal re-entry sentencing purposes, since the offense may be committed through duress, and without use of force).

United States v. Espinoza-Morales, 621 F.3d 1141 (9th Cir. Sept. 10, 2010) (California conviction for penetration with a foreign object, in violation of California Penal Code 289(a)(1), does not categorically constitute a crime of violence for illegal re-entry sentencing purposes, since the offense may be committed through duress alone, and without use of force).

Ganzhi v. Holder, 624 F.3d 23, 2010 WL 3465604 (2d Cir. Sept. 7, 2010) (per curiam) (New York conviction of sexual misconduct, in violation of New York Penal Law 130.20(1)[engages in sexual intercourse with another person without such person's consent], does not qualify as a sexual abuse of a minor aggravated felony under the categorical analysis, since the statute has no element involving the age of the victim).

Ganzhi v. Holder, 624 F.3d 23 (2d Cir. Sept. 7, 2010) (per curiam) (New York conviction of sexual misconduct, in violation of New York Penal Law 130.20(1), is a divisible statute, since it provides in different subsections different definitions of lack of consent, and includes offenses involving minors one day shy of 17 years of age).

United States v. Folkes, 622 F.3d 152 (2d Cir. Sept. 29, 2010) (per curiam) (New York conviction of third degree burglary, in violation of N.Y. Penal Law 140.20 [knowingly enters or remains unlawfully in a building with intent to commit a crime therein.], did not categorically constitute crime of violence for illegal re-entry sentencing purposes, since the statute does not necessarily involve use of force against another).

United States v. Folkes, 622 F.3d 152 (2d Cir. Sept. 29, 2010) (per curiam) (New York conviction of third-degree criminal possession of a loaded firearm, in violation of N.Y. Penal Law 265.02(4), did not categorically constitute crime of violence for illegal re-entry sentencing purposes, since the crime of violence definition requires some affirmative conduct beyond mere possession of a gun); following United States v. Gamez, 577 F.3d 394, 398 (2d Cir. 2009).