Gertsenshteyn v. Mukasey, 544 F.3d 137 (2d Cir. Sept. 25, 2008) ("We have adopted a "categorical approach" to deciding whether a crime of conviction fits within the definition of "aggravated felony" in 1101(a)(43), thereby rendering an alien removable under 1227(a)(2)(A)(iii). Santos v. Gonzales, 436 F.3d 323, 325 (2d Cir.2006) (per curiam). Under this approach, which is sometimes called the Taylor-Shepard approach, after Taylor v. United States, 495 U.S. 575 (1990), and Shepard v. United States, 544 U.S.

Mukasey v. Diouf, 542 F.3d 1222 (9th Cir. Sept. 18, 2008) (90-day clock for Immigration Authorities to remove noncitizen starts only after the final date the DHS can show documented evidence of obstruction by the noncitizen of the removal process).

Zamora-Morel v. INS, 905 F.2d 833 (5th Cir. 1990) (once allegation regarding marijuana possession charge was withdrawn by INS, that allegation no longer constituted valid charge against noncitizen or valid part of record, and allegation could not be used to conclude that noncitizen was deportable for having two controlled substance convictions).

United States v. Reyes-Solano, 543 F.3d 474, 2008 (8th Cir. Sept. 26, 2008) ("In determining whether a pre-removal conviction based on a guilty plea was for a crime of violence under 2L1.2(b)(1), we apply the "categorical approach" prescribed in Shepard, 544 U.S. at 26. Under this approach, we must "look to the elements and the nature of the offense of conviction, rather than to the particular facts relating to [Reyes-Solano's pre-removal] crime." Leocal v. Ashcroft, 543 U.S. 1, 7 (2004).

United States v. Reyes-Solano, 543 F.3d 474 (8th Cir. Sept.

Gertsenshteyn v. Mukasey, 544 F.3d 137 (2d Cir. Sept. 25, 2008) (federal conviction of violating and conspiring to violate 18 U.S.C. 2422(a), enticing individuals to travel in interstate or foreign commerce to engage in prostitution, did not constitute an aggravated felony under INA 101(a)(43)(K)(ii), 8 U.S.C. 1101(a)(43)(K)(ii) ("an offense that ... is described in section 2421, 2422 or 2423 of Title 18 ...

Gertsenshteyn v. Mukasey, 544 F.3d 137 (2d Cir. Sept. 25, 2008) ("[T]he INA premises removability not on what an alien has done, or may have done, or is likely to do in the future (tempting as it may be to consider those factors), but on what he or she has been formally convicted of in a court of law.

Mitchell v. United States, 526 U.S. 314, 325, 328-30 (1999) (defendant cannot be compelled to admit facts beyond the elements of the offense and no adverse inference can be drawn from the defendant's silence regarding the offense).

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The U.S. Attorney's office alone does not have the power to agree that the cooperator will not be deported. See 28 C.F.R. 0.197 ("The Immigration and Naturalization Service shall not be bound, in the exercise of its authority under the immigration laws, through plea agreements, cooperation agreements, or other agreements with or for the benefit of alien defendants, witnesses, or informants, or other aliens cooperating with the United States Government, except by the authorization of the Commissioner of the Service or the Commissioners delegate.