ICE Issues Memorandum, Provides Guidance on Prosecutorial Discretion; EOIR Issues Statement in Support

Posted on November 23, 2011 by Mike Baker

On November 17, 2011, Principal Legal Advisor Peter S. Vincent at U.S.
Immigration and Customs Enforcement (ICE) issued a memorandum concerning
case-by-case review of both incoming and pending cases for compliance
with ICE’s civil enforcement priorities as set forth by ICE Director
John Morton in a June 2011 memorandum entitled “Exercising Prosecutorial
Discretion Consistent with the Civil Immigration Enforcement Priorities
of the Agency for the Apprehension, Detention, and Removal of Aliens”
(Morton memorandum). Mr. Vincent simultaneously released guidance
to ICE attorneys reviewing cases before the Executive Office for
Immigration Review (EOIR).

Policy Memorandum

The memorandum, entitled “Case-by-Case Review of Incoming and Certain
Pending Cases” (Vincent memorandum), was issued to all chief counsel. It
states that, beginning immediately, all Offices of Chief Counsel (OCC)
must review for compliance cases in which the notices to appear have not
been filed with the EOIR, cases on the master docket, and all
nondetained cases with merits hearings scheduled up to seven months from
the date of issuance of the Vincent memorandum. After a two-month
period, the Vincent memorandum states, ICE will evaluate the results and
determine whether modifications are necessary before continuing with the
policy.

The Vincent memorandum refers attorneys to the Morton memorandum as well
as the corresponding guidance for specific factors that they should
focus on during each case evaluation. In addition, the Vincent
memorandum refers attorneys to the following memoranda issued by
Director Morton for further guidance:

• Civil Immigration Enforcement: Priorities for the Apprehension,
Detention, and Removal of Aliens (Mar. 2, 2011);

• Guidance Regarding the Handling of Removal Proceedings of Aliens with
Pending or Approved Applications or Petitions (Aug. 20, 2010); and

• Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs
(June 17, 2011).

Attorneys are advised in the Vincent memorandum to use the criteria to
identify cases as eligible or ineligible for a favorable exercise of
prosecutorial discretion. Attorneys should use the evaluation to decide
whether to continue proceedings before the EOIR or seek an
administrative closure.

The Vincent memorandum directs the OCC to immediately draft and
implement a standard operating procedure (SOP) establishing a review
process. The SOP must include:

• assistant chief counsel/senior attorney initial review;

• supervisory review;

• notification process to individuals where the OCC decides to exercise
prosecutorial discretion in the absence of a request;

• use and monitoring of an electronic mailbox for the receipt of
additional documentation that individuals wish to be considered during
the prosecutorial discretion review process;

• notification to a supervisory official at Enforcement and Removal
Operations, Homeland Security Investigations, U.S. Citizenship and
Immigration Services (USCIS), or U.S. Customs and Border Protection
(CBP) of the decision to exercise prosecutorial discretion; and

• national security and public safety checks for any case being
considered for administrative closure or dismissal.

The memorandum also requires the following language be included in the
SOP:

Some individuals may decline prosecutorial discretion and elect to
proceed before the immigration court. In some instances, applicants for
immigration benefits whose applications are denied by USCIS are entitled
to de novo review before an immigration judge (IJ). Asylum and Temporary
Protected Status are two examples. See, e.g. 8 C.F.R. §
208.14(c)(1)(2011); 244.10(c)(1)-(2) (2011). Moreover, some adjustment
of status provisions also provide for renewal of a USCIS-denied
application before an IJ. See, e.g. id. [8 CFR] §§ 209.1(e), 209.2(f),
245.2(a)(5)(ii). In addition, some forms of immigration relief or
protection may be granted only in immigration court, including
cancellation of removal under section 240A of the Immigration and
Nationality Act, 8 U.S.C. § 1229b, as well as withholding and deferral
of removal under 8 C.F.R. §§ 1208.16-17.

Guidance to ICE Attorneys

The guidance notes that in August 2011, the Department of Homeland
Security (DHS) announced that it would be reviewing administrative
removal cases pending and incoming before the EOIR in order to identify
cases that are of high priority for DHS.  The review applies to all
CBP, USCIS, and ICE removal cases before IJs or the Board of Immigration
Appeals. The guidance sets out criteria to assist ICE attorneys in that
review. Also, the guidance admonishes attorneys that the decision to
exercise prosecutorial discretion should be made on a case-by-case
basis, taking into account the totality of the circumstances. Attorneys
are warned that the guidance does not provide a bright-line test and
that many cases will require a balancing of many factors. Attorneys are
encouraged in the guidance to consult with their supervisors and seek
additional information when it can be easily and quickly obtained.

The guidance lists both enforcement priority cases as well as cases in
which the alien involved is not generally considered an enforcement
priority. The cases identified as enforcement priorities requiring
accelerated adjudication involve an alien:

• who is a suspected terrorist or national security risk;

• who has a conviction for–

• a felony or multiple misdemeanors;

• illegal entry, reentry, or immigration fraud; or

• a misdemeanor violation involving–

• violence, threats, or assault;

• sexual abuse or exploitation;

• driving under the influence of alcohol or drugs;

• flight from the scene of an accident;

• drug distribution or trafficking; or

• other significant threat to public safety;

• who is a gang member, human rights violator, or other clear threat to
public safety;

• who entered the country illegally or violated the terms of his or her
admission within the last three years;

• who has previously been removed from the country;

• who has been found by an immigration officer or immigration judge to
have committed immigration fraud; or

• who otherwise has an egregious record of immigration violations.

Cases that are not generally enforcement priorities and should be
reviewed for prosecutorial discretion on a case-by-case basis involve an
alien:

• who is a member in good standing of the Coast Guard or Armed Forces of
the U.S., is an honorably discharged veteran of the Coast Guard or Armed
Forces, or is the spouse or child of a member or veteran;

• who is a child, has been in the U.S. for more than five years, and is
either in school or has successfully completed high school or its
equivalent;

• who came to the U.S. under the age of 16, has been in the U.S. for
more than five years, has completed high school or its equivalent, and
is now pursuing or has successfully completed higher education in the
U.S.;

• who is over the age of 65 and has been present in the U.S. for more
than 10 years;

• who is a victim of domestic violence in the U.S., human trafficking to
the U.S., or any other serious crime in the U.S.;

• who has been a lawful permanent resident for 10 years or more and has
a single, minor conviction for a nonviolent offense;

• who suffers from a serious mental or physical condition that would
require significant medical or detention resources; or

• who has very long-term presence in the U.S., has an immediate family
member who is a U.S. citizen, and has established compelling ties and
made compelling contributions to the U.S.

The guidance also clarifies that, if an ICE attorney decides that
prosecutorial discretion is warranted, he or she must vet the alien in
the case to ensure that he or she is not a national security or public
safety concern before exercising any discretion. If, after evaluating a
case, an ICE attorney concludes that it merits prosecutorial discretion,
the attorney must notify the relevant charging supervisory official at
CBP, USCIS, or ICE. Disputes between the ICE attorney and the relevant
supervisory official regarding the exercise of prosecutorial discretion
should be mediated by the ICE chief counsel and elevated to the deputy
director if a resolution is not reached.

With regard to asylum matters, the guidance instructs that: ICE
attorneys may agree to the administrative closure of removal proceedings
of an individual who filed an asylum application if the individual
jointly requests administrative closure with the immigration judge. Upon
the filing of such a joint request, however, the individual will be
subject to 8 CFR 208.7(a)(2) which tolls the 180-day clock for
employment authorization eligibility. A separate document entitled “Next
Steps in the Implementation of the Prosecutorial Discretion Memorandum
and the August 18th Announcement on Immigration Enforcement Priorities”
also notes that a “comprehensive training program on the appropriate use
of the June 17, 2011 Prosecutorial Discretion Memorandum” was launched
on November 17 and includes “scenario-based training that emphasizes how
the Prosecutorial Discretion Memorandum should be utilized in order to
focus immigration enforcement resources on ICE priorities.” The document
states that the training is in addition to previous training held since
the Morton memorandum was released and that: ICE Director Morton, along
with other members of ICE’s senior leadership team, have traveled around
the country to discuss the importance of consistent application of
prosecutorial discretion. Over the last month, Director Morton and his
senior leadership have traveled to Los Angeles, Chicago, San Francisco,
San Diego, Miami, New York, and Newark to personally instruct
enforcement officers and attorneys on the appropriate use of this
policy. Over the next several weeks, Director Morton and other members
of the ICE senior leadership will travel to New Orleans and other
jurisdictions to conduct additional training. By January 13, all ICE
enforcement officers and attorneys nationwide will have completed
scenario based prosecutorial discretion training.

EOIR Statement

The EOIR issued a statement in connection with the ICE memorandum and
guidance. In the statement, the EOIR states that ICE attorneys will be
responsible for deciding whether to exercise prosecutorial discretion
and that the IJs will adjudicate motions brought in this respect,
including motions to administratively close or terminate cases, on a
case-by-case basis as they are filed.

Posted in ICE, Prosecutorial discretion | Leave a comment

When Two or More CIMTs Arise Out of a Single Scheme: Matter of Islam

Posted on November 23, 2011 by Mike Baker

The Board of Immigration Appeals (BIA or Board) held in Matter of Islam, 25 I. & N. Dec. 637 (B.I.A. Nov. 18, 2011), that (1) in determining whether an alien’s convictions for two or more crimes involving moral turpitude (CIMTs) arose out of a “single scheme of criminal misconduct” within the meaning of INA § 237(a)(2)(A)(ii) [8 USCA § 1227(a)(2)(A)(ii)] (2006), the Board will uniformly apply its interpretation of that phrase in all circuits, and (2) where the respondent was convicted in two counties of forgery and possession of stolen property based on his use of multiple stolen credit or debit cards to get items of value from several retail outlets on five separate occasions over the course of a day, his crimes did not arise out of a “single scheme of criminal misconduct.”

The respondent, a native and citizen of Bangladesh, was admitted to the U.S. in 1998. In 2008, he was convicted in the Columbia County Court, New York, of fourth degree criminal possession of stolen property, namely a credit or debit card, in violation of § 165.45(2) of the New York Penal Law, for which he was sentenced to six months’ incarceration with five years of probation and was required to pay restitution and fees. He was also convicted in 2009 in Greene County, New York, of forgery in the third degree in violation of § 170.05 of the New York Penal Law, for which he was fined and sentenced to three years of probation to run concurrent with his earlier sentence. The Department of Homeland Security (DHS) initiated removal proceedings against the respondent, charging that he is removable based on his convictions for CIMTs.

In his immigration court proceedings the respondent argued that he was not removable because his convictions arose out of a single scheme of criminal misconduct. He also asserted his eligibility for cancellation of removal under INA § 240A(a) [8 USCA § 1229b(a)] (2006). In the proceedings, the respondent admitted that on March 22, 2008, he used or attempted to use two different credit and debit cards belonging to another person on five separate occasions to buy goods at four different locations in two adjoining counties over the span of a few hours. The immigration judge (IJ) found that the circumstances of the crimes indicated that the respondent “had time to dissociate himself and reflect on what he had done” between the commission of each offense. Consequently, the IJ found that the respondent was convicted of two or more CIMTs that did not arise out of a single scheme of criminal misconduct and he was therefore removable under INA § 237(a)(2)(A)(ii). The IJ also found that he had failed to properly complete his application for relief and ordered him removed. The respondent appealed.

The respondent did not deny that forgery and possession of stolen property are CIMTs so the sole issue on appeal was whether the respondent’s CIMT convictions arose out of a single scheme of criminal misconduct. In resolving this issue, the Board found it proper to apply the interpretation of the “single scheme” language that it adopted in Matter of Adetiba, 20 I. & N. Dec. 506, 1992 WL 195812 (B.I.A. 1992), rather than the “more expansive interpretation” expressed by the U.S. Court of Appeals for the Second Circuit (the Circuit in which this case arose) in Nason v. Immigration and Naturalization Service, 394 F.2d 223 (2d Cir. 1968), a pre-Chevron case.

In Matter of Adetiba, the Board noted (as did the Second Circuit in Nason that neither the language, nor the legislative history of the statute, provides any insight into what Congress meant by “a single scheme of criminal misconduct.” The Board concluded that when an alien has performed an act, which, in and of itself, is a complete, individual, and distinct crime, he is deportable when he again commits such an act, even though one may closely follow the other, be similar in character, and even be part of an overall plan of criminal misconduct. The Board found that the single scheme exception refers to acts, which although separate crimes in and of themselves, were performed in furtherance of a single criminal episode, such as where one crime is a lesser offense of another or where two crimes flow from and are the natural result of a single act of criminal misconduct, such as where someone possesses and utters a counterfeit bill or where someone breaks into a store with the intent to commit larceny and, in connection with that crime, also commits an assault with a deadly weapon. Thus the Board found that separate crimes involving the unauthorized use of four different credit cards obtained in four different fictitious names, which resulted in harm to different victims, did not arise out of a “single scheme of criminal misconduct,” even if they were committed by an elaborate plan and the same modus operandi was used for each offense. In reaching this conclusion, the Board relied on the U.S. Court of Appeals for the First Circuit decision in Pacheco v. Immigration and Naturalization Service, 546 F.2d 448 (1st Cir. 1976), for the proposition that a single scheme must take place at one time, meaning that there must be no real interruption that would allow the participant to disassociate himself from his enterprise and reflect on what he has done.

The respondent in the present case contended that the Board should apply the Second Circuit’s decision in Nason, which, he asserted, placed some emphasis on the nine-month interval between the commission of the offenses. By contrast, the respondent argued, he committed his crimes within a brief period on a single day and did not have time to reflect on his first crime or disassociate himself from the criminal enterprise before completing his other crimes. The Board, however, rejected this argument, finding that it should follow the approach outlined in Matter of Adetiba. The Board noted that the Second Circuit, in Michel v. I.N.S., 206 F.3d 253 (2d Cir. 2000), found it unnecessary to decide whether Chevron deference was due to Matter of Adetiba because, on the facts, the alien’s crimes were not committed as part of a single scheme under either standard, but that six other circuits have determined that Matter of Adetiba warrants Chevron deference. [FN9] The Board also pointed out that the Supreme Court in National Cable & Telecommunications Ass’n v. Brand X Internet Services, 545 U.S. 967 (2005), held that Chevron deference must be paid to an agency’s interpretation of ambiguous statutory provisions, even where a court has previously issued a contrary decision and believes that its construction was the better one, so long as the agency’s interpretation is reasonable. The Board found the phrase “single scheme of criminal misconduct” to be “a quintessentially ambiguous term,” and concluded that its analysis in Matter of Adetiba is controlling and should be applied uniformly in all circuits.

Turning to the present case, the Board first noted that the question whether multiple crimes are part of a “single scheme of criminal misconduct” is not subject to the categorical approach but instead requires a “circumstance-specific” inquiry in which all relevant evidence may be consulted. The Board concluded, in agreement with the IJ, that DHS had established by clear and convincing evidence that the respondent’s convictions did not arise out of a single scheme of criminal misconduct. Like the IJ, the Board rejected the respondent’s assertion that because his crimes took place during a brief period, he did not have time to reflect on his first offense or disassociate himself from the criminal enterprise before completing his additional crimes, finding, as it did in Matter of Adetiba, that:

the respondent committed separate and distinct crimes each time he used a different credit card and obtained through its unauthorized use things of … value … The use of additional cards did not flow from and was not a natural consequence of a single act of criminal misconduct. After use of any one credit card, the [respondent] had the opportunity to disassociate himself from his enterprise and reflect on what he had done.

The Board further stated that the respondent traveled to different venues to get more items of value with the stolen credit cards supported the determination that the respondent’s crimes, while occurring on the same day, did not arise from a single scheme of criminal misconduct.

Finally, the Board affirmed the IJ’s determination that the respondent abandoned his application for cancellation of removal when he failed to timely file a complete application and rejected his request that he be released from custody pending further proceedings since the Board “do[es] not review custody determinations in the context of an appeal from an order of removal.”

Posted in BIA, Board of Immigration Appeals, CIMT, Crime involving moral turpitude | Leave a comment

Immigrant entrepreneurial power, EB-5 Immigrant Investor

Posted on November 7, 2011 by Mike Baker

Much has been written about immigrant entrepreneurial power and how the U.S. is losing out. In an article in Techcrunch, Vivek Wadhwa – well-known entrepreneur, academic, and author on immigrant entrepreneurial power – has laid out examples of immigrant entrepreneurs who left the U.S. because of visa problems and established enterprises in other countries which provided hundreds of jobs. In June 2011, the Partnership for a New American Economy published a report about the entrepreneurial track record of immigrants in the U.S.

The E-2 Treaty Investor visa is available to nationals of countries that the United States has a treaty of friendship, commerce and navigation, or a free trade agreement that includes the E-2 visa option. But we don’t have treaties with many countries who have eager entrepreneurs. Of particular note is the absence of an E-2 treaty option with India, the People’s Republic of China and Israel which could provide the U.S. with the job-creating innovators we need.

The EB-5 immigrant investor category should be distinguished from the treaty investor (E-2) nonimmigrant visa classification, which allows a noncitizen who invests a substantial amount of capital in an enterprise in the United States to enter this country to develop and direct the enterprise. The principal E-2 investor must be a national of a country with which the United States has a treaty of commerce and navigation providing for the investor activity.

The H-1b visa, commonly used for professional positions, had in the past been used successfully for foreign nationals who were investors in viable businesses employing themselves and others. But a recent change in policy narrowing the technical definition of “employee” has thwarted the H-1b option. Although USCIS has indicated it is in the process of reviewing its policy and educating its adjudicators, there has not been a significant improvement in adjudications reported.

EB-5 Immigrant Investor 

Visa Description

USCIS administers the Immigrant Investor Program, also known as “EB-5,” created by Congress in 1990 to stimulate the U.S. economy through job creation and capital investment by foreign investors. Under a pilot immigration program first enacted in 1992 and regularly reauthorized since, certain EB-5 visas also are set aside for investors in Regional Centers designated by USCIS based on proposals for promoting economic growth.

The fifth employment-based (EB-5) immigrant visa category, with approximately 10,000 numbers annually, is for immigrants seeking to enter the United States to engage in a commercial enterprise that will benefit the U.S. economy and create at least ten full-time jobs.  The jobs must be for U.S. citizens, lawful permanent residents, or other noncitizens authorized to work, other than the applicant or his or her immediate family. The applicant must have invested or be in the process of investing the required amount after November 29, 1990, the effective date of the Immigration Act of 1990. The basic amount required is $1 million, although that amount may be $500,000 if the investment is made in a “targeted employment area.” In either case, before the second anniversary of obtaining the resulting green card, the applicant has to establish that he or she has substantially maintained the investment and that the investment has created the requisite ten full-time jobs.

As some members of Congress have complained, some potential immigrants may be attracted by the possibility of “buying their way” into the United States. But whatever the initial investment, the entrepreneur must create at least ten jobs in a business that he or she must maintain for at least two years. To satisfy this requirement and to define the financial exposure reasonably, certain labor-intensive franchises may be attractive.

The statutory requirements of the EB-5 visa category are onerous. Until recently, only about 1,000 principal investors and their family members immigrated through this category each year, which is just one-tenth of the visas available. The former Immigration and Naturalization Service (INS) (now U.S. Citizenship and Immigration Services (USCIS)) made it even harder to qualify for the EB-5 visa category by issuing four precedent decisions in 1998 that significantly restricted eligibility for this category. n6 The INS applied those decisions retroactively to investors who applied for EB-5 classification before 1998. Moreover, after 1998 the INS’s Administrative Appeals Office (AAO) issued numerous nonprecedent decisions further tightening the screws on EB-5 cases. Nevertheless, in the last few years, interest in the EB-5 program has grown.

The 1998 restrictions to the EB-5 program prompted a flurry of lawsuits challenging the changes on a variety of grounds. So far the decisions have gone both ways.

In 2002 Congress passed a law helping certain immigrant investors hurt by the INS’s 1998 decisions. The 2002 law gave investors caught by the retroactive application of the INS’s changes an opportunity to re-establish EB-5 eligibility. In essence, the 2002 law replaced the normal procedures of INA § 216A with new procedures for investors who fit the parameters of the 2002 law. Those deemed to have met those requirements would be granted unconditional permanent resident status. Those who had not yet met these requirements would have two years to complete their investments and to demonstrate the requisite job creation/saving, receiving credit for amounts invested and jobs created or saved to date.

The 2002 law also made some modest changes to the general EB-5 program. The changes made by the 2002 law apply to I-526 and I-829 petitions pending on or filed after November 2, 2002, the date of enactment.

According to the immigration agency, just fifty-nine EB-5 immigrants were admitted in fiscal year (FY) 1992, the first year of the EB-5 program. The high point for EB-5 admissions until 1998 was in FY 1997, when 1,361 people (both investors and family members) were admitted. Id. After the Immigration and Naturalization Service (INS or Service) issued four precedent decisions in 1998 that restricted eligibility for the program (discussed infra), admissions fell to a low of sixty-four in FY 2003. The number of EB-5 immigrants rose to 129 in FY 2004, increased to 1,360 in FY 2008, and jumped to 3,688 in FY 2009.  Office of Immigration Statistics, U.S. Dep’t of Homeland Security, Yearbook of Immigration Statistics (2009) (table 6), http://www.dhs.gov/ximgtn/statistics/publications/yearbook.shtm (last visited Apr. 17, 2010).

All EB-5 investors must invest in a new commercial enterprise, which is a commercial enterprise:

  • Established after Nov. 29, 1990, or
  • Established on or before Nov. 29, 1990, that is:
    1. Purchased and the existing business is restructured or reorganized in such a way that a new commercial enterprise results, or
    2. Expanded through the investment so that a 40-percent increase in the net worth or number of employees occurs

Commercial enterprise means any for-profit activity formed for the ongoing conduct of lawful business including, but not limited to:

  • A sole proprietorship
  • Partnership (whether limited or general)
  • Holding company
  • Joint venture
  • Corporation
  • Business trust or other entity, which may be publicly or privately owned

This definition includes a commercial enterprise consisting of a holding company and its wholly owned subsidiaries, provided that each such subsidiary is engaged in a for-profit activity formed for the ongoing conduct of a lawful business.

Note: This definition does not include noncommercial activity such as owning and operating a personal residence.

Job Creation Requirements

  • Create or preserve at least 10 full-time jobs for qualifying U.S. workers within two years (or under certain circumstances, within a reasonable time after the two-year period) of the immigrant investor’s admission to the United States as a Conditional Permanent Resident.
  • Create or preserve either direct or indirect jobs:
    • Direct jobs are actual identifiable jobs for qualified employees located within the commercial enterprise into which the EB-5 investor has directly invested his or her capital.
    • Indirect jobs are those jobs shown to have been created collaterally or as a result of capital invested in a commercial enterprise affiliated with a regional center by an EB-5 investor. A foreign investor may only use the indirect job calculation if affiliated with a regional center.

Note: Investors may only be credited with preserving jobs in a troubled business.

A troubled business is an enterprise that has been in existence for at least two years and has incurred a net loss during the 12- or 24-month period prior to the priority date on the immigrant investor’s Form I-526. The loss for this period must be at least 20 percent of the troubled business’ net worth prior to the loss. For purposes of determining whether the troubled business has been in existence for two years, successors in interest to the troubled business will be deemed to have been in existence for the same period of time as the business they succeeded.

A qualified employee is a U.S. citizen, permanent resident or other immigrant authorized to work in the United States. The individual may be a conditional resident, an asylee, a refugee, or a person residing in the United States under suspension of deportation. This definition does not include the immigrant investor; his or her spouse, sons, or daughters; or any foreign national in any nonimmigrant status (such as an H-1B visa holder) or who is not authorized to work in the United States.

Full-time employment means employment of a qualifying employee by the new commercial enterprise in a position that requires a minimum of 35 working hours per week. In the case of the Immigrant Investor Pilot Program, “full-time employment” also means employment of a qualifying employee in a position that has been created indirectly from investments associated with the Pilot Program.

A job-sharing arrangement whereby two or more qualifying employees share a full-time position will count as full-time employment provided the hourly requirement per week is met. This definition does not include combinations of part-time positions or full-time equivalents even if, when combined, the positions meet the hourly requirement per week. The position must be permanent, full-time and constant. The two qualified employees sharing the job must be permanent and share the associated benefits normally related to any permanent, full-time position, including payment of both workman’s compensation and unemployment premiums for the position by the employer.

Capital Investment Requirements

Capital means cash, equipment, inventory, other tangible property, cash equivalents and indebtedness secured by assets owned by the alien entrepreneur, provided that the alien entrepreneur is personally and primarily liable and that the assets of the new commercial enterprise upon which the petition is based are not used to secure any of the indebtedness. All capital shall be valued at fair-market value in United States dollars. Assets acquired, directly or indirectly, by unlawful means (such as criminal activities) shall not be considered capital for the purposes of section 203(b)(5) of the Act.

Note: Investment capital cannot be borrowed.

Required minimum investments are:

  • General. The minimum qualifying investment in the United States is $1 million.
  • Targeted Employment Area (High Unemployment or Rural Area). The minimum qualifying investment either within a high-unemployment area or rural area in the United States is $500,000.

A targeted employment area is an area that, at the time of investment, is a rural area or an area experiencing unemployment of at least 150 percent of the national average rate.

A rural area is any area outside a metropolitan statistical area (as designated by the Office of Management and Budget) or outside the boundary of any city or town having a population of 20,000 or more according to the decennial census.

Over the years the immigration agency has tightened its review of applications for regional center designation under the pilot program. In 2000 the agency issued five decisions on regional center applications, denying or remanding all of them. The decisions set forth restrictive new requirements to qualify as a regional center. Since 2002, the agency has not revisited its requirements for regional center designation in published decisions or amendments to regulations. Rather, it has tightened its review of regional center applications and evolved its standards for approval through practice rather than publication, namely through adjudicatory trends and RFEs in particular.

RFEs are a common phenomenon in immigrant and nonimmigrant visa petitions for individuals, but their purpose in those cases is to clarify the petition’s facts and compare those facts against the regulatory requirements for the visa category. By contrast, RFEs for regional center applications have clarified the agency’s standards. The RFE as articulation mechanism has thus charted the evolution of the precision of USCIS standards.

For example, the USCIS now requires regional center applications to include project-specific business plans. Less than two years ago, regional center applications were not required to include such business plans.

A second example of the evolution of a standard through RFEs is the current requirement for financial information. As with the project business plan example, such financial information at first needed only to be captured generally in the regional center application, and detailed enumerations of funds committed, expenses incurred, and the object and source of this capital were not required. By way of the RFE, however, over time practitioners have learned the extent to which the USCIS now requires such evidence to be documented to receive regional center approval. This may include, inter alia, expense attestations regarding funds committed and expenses incurred, bank account statements, expense and cash flow and financial-projection spreadsheets, and source-of-capital letters. This is clearly a detailed articulation of the regulation stipulating demonstration of the amount and source of the regional center’s operational capital.

The immigration agency’s tightened review of regional center applications over the past couple of years can be correlated with the increase in number of applications. At first, many of the RFE requests appeared to beyond the scope of prior practice, and practitioners could respond by explaining that such requests were not appropriate. As the evolution and clarification of standards proceeded, however, the USCIS began issuing second RFEs in some regional center applications that more articulately defined its requests. The USCIS also used the RFE process to note that statements of counsel cannot be accepted as evidence of the regional center’s intentions and that all plans and projections must come directly from a regional center official.

Eventually the USCIS issued three memoranda in 2009, each subsequently more significant and compelling on regional center applicants, reflecting guidance established through recent trends in adjudication and RFEs. The latter two memoranda update the agency’s Adjudicator’s Field Manual and thus articulate as catalogued guidance the practice tips practitioners had previously observed in RFEs.

The first of these memoranda, issued on June 12, 2009, by Michael Aytes, Acting USCIS Deputy Director, responded to a March 2009 report by the USCIS Ombudsman offering eight recommendations to improve the EB-5 program. The Aytes memo did not offer much substantial guidance. It agreed with some of the Ombudsman’s procedural recommendations but stated that many were not yet ready for implementation (such as the expedited premium processing service of individual petitions for an extra fee) and that a number of others would require legislative action by Congress.

On June 17, Donald Neufeld, Acting USCIS Associate Director of Domestic Operations, issued a memorandum to all USCIS offices entitled “EB-5 Alien Entrepreneurs–Job Creation and Full-Time Positions.” Updating the Adjudicator’s Field Manual, this memo provided substantive guidance on three EB-5 topics: (1) when jobs must be created; (2) how to document proof of job creation in I-829 petitions; and (3) what constitutes a full-time job for EB-5 purposes.

On December 11, 2009, Donald Neufeld issued the USCIS’s most in-depth memorandum on regional centers yet. It rescinded a January 2005 memorandum that had established a now defunct EB-5 investor and regional center unit at USCIS headquarters. Instead, all EB-5 adjudications now occur at the California Service Center (CSC). The points of the December 11 memo cover the following topics: (1) timing of adjudication of EB-5 eligibility issues; (2) procedures to be used when there appears to be a material change in circumstances; (3) TEA determinations; (4) how an immigrant investor may seek approval of a new I-526 petition to change the focus of his or her investment to a new capital investment project or commercial enterprise; (5) the respective EB-5 program responsibilities of CSC and Service Center Operations (SCOPS) personnel; and (6) field guidance including, notably, the process of exemplar filings and regional center eligibility requirements that reiterate the guidance provided by the preceding RFEs.

As introduced by the December 11 memo, the innovation of exemplar filings merits a further note. Exemplar filings, provide another example of the evolution of regional center application standards and their effect on post-approval procedures and investor filings. Until recently, the corporate and other documents associated with hypothetical projects were typically disclaimed as “draft” or “sample” at the regional center application stage. Actual project documents were typically submitted for the first time with the first I-526 filing, making the first investor in a project essentially a guinea pig, as the petition could be delayed (RFE’d) or denied based on the regional center project documents. A regional center can now avoid project adjudication at the I-526 stage and also receive blanket approval for project documents, so that each subsequent investor petition does not have to have project documents evaluated on their merits anew. Project pre-approval can be achieved by doing an exemplar filing with the regional center application initially, by submitting finalized project documents at the regional center application RFE stage, or by filing a regional center amendment post-approval. These options require more work upfront and are not feasible or appropriate in all cases, but they can save time and take the burden off individual I-526 petitions later. The regional center applicant should consider the suitability and advantages and disadvantages of these options for the particular case.

EB-5 practice is one of the most complex subspecialties of immigration law. Corporate, securities, tax, investment, and immigration law are all involved in the regulatory requirements for qualifying a person for EB-5 status. Furthermore, the evolving nature of the regional center pilot program has added another layer of complexity to the practice and has required attorneys, investors, and regional centers to tailor their own best practices to changing USCIS standards. With its 2009 memoranda, the USCIS may believe that it has interpreted key components of the EB-5 program as extensively as possible within the existing statutory requirements. Recognizing this context and consulting the memoranda, RFE trends, and other practice experience such as the December 1, 2009, USCIS compliance letters, it is possible to arrive at a relatively comprehensive understanding of the EB-5 category and its nebulous and evolving regional center pilot program.

EB-5 Links

______________________________________________

THE “NEW AMERICAN” FORTUNE 500

A REPORT by the PARTNERSHIP for a NEW AMERICAN ECONOMY

JUNE 2011

Co-Chairs of the Partnership for a New American Economy

Steven A. Ballmer CEO, Microsoft Corporation

Michael R. Bloomberg Mayor, New York City

Julián Castro Mayor, San Antonio

Phil Gordon Mayor, Phoenix

Bob Iger Chairman & CEO, Walt Disney Company

Bill Marriott, Jr. Chairman & CEO, Marriott International

Jim McNerney Chairman, CEO & President, Boeing

Rupert Murdoch Chairman, CEO & Founder, News Corporation

Michael Nutter Mayor, Philadelphia

Antonio Villaraigosa Mayor, Los Angeles

Learn more at www.RenewOurEconomy.org

THE “NEW AMERICAN” FORTUNE 500

A REPORT by the PARTNERSHIP for a NEW AMERICAN ECONOMY

JUNE 2011

Executive Summary

America’s dynamic, free, and open economy has for more than two centuries acted as a powerful magnet for the world’s brightest and most creative minds. This is the American tradition.  Each generation, millions of talented people from around the world take the risk of leaving their homes to seek a better life at our shores. And the American economy benefits enormously from  the contributions of these hard-working, innovative individuals.

This report highlights the benefits we receive from immigrants’ entrepreneurialism by examining the Fortune 500, a list of companies that help define the American economy. Every year, Fortune Magazine ranks the top American companies by revenue. The companies that populate the list — names like Kraft, Ford, General Electric, Procter & Gamble, AT&T, Mattel, Google, McDonald’s, Heinz, Home Depot, Hertz, Estée Lauder, UPS, Boeing, and Disney — are synonymous with America’s leading role in the global marketplace.

But the great American companies listed above are also “New American” companies — companies founded by immigrants or their children — a characteristic they share with more than 200 others on the 2010 Fortune 500 list.

This report examines the impact that immigrant entrepreneurs have had on our economy, on millions of workers across virtually all industry sectors, and on America’s prosperity. And it underscores the opportunities America may lose if future entrepreneurs start their businesses in other countries — especially if we maintain an immigration system that turns many of them away.

Key findings include:

More than 40 percent of the 2010 Fortune 500 companies were founded by immigrants or their children. Even though immigrants have made up only 10.5 percent of the American population on average since 1850, there are 90 immigrant-founded Fortune 500 companies,  accounting for 18 percent of the list. When you include the additional 114 companies founded by the children of immigrants, the share of the Fortune 500 list grows to over 40 percent.

The newest Fortune 500 companies are more likely to have an immigrant founder. 

Just shy of 20 percent of the newest Fortune 500 companies — those founded over the 25-year period between 1985 and 2010 — have an immigrant founder.

Fortune 500 companies founded by immigrants or children of immigrants employ more than 10 million people worldwide. Immigrant-founded Fortune 500 companies alone employ more than 3.6 million people, a figure equivalent to the entire population of Connecticut.

The revenue generated by Fortune 500 companies founded by immigrants or children of immigrants is greater than the GDP of every country in the world outside the U.S., except China and Japan. The Fortune 500 companies that boast immigrant or children-of-immigrant founders have combined revenues of $4.2 trillion. $1.7 trillion of that amount comes just from the companies founded by immigrants.

Seven of the 10 most valuable brands in the world come from American companies founded by immigrants or children of immigrants. Many of America’s greatest brands— Apple, Google, AT&T, Budweiser, Colgate, eBay, General Electric, IBM, and McDonald’s, to name just a few — owe their origin to a founder who was an immigrant or the child of an immigrant.

Immigrant-founded Fortune 500 companies drive a wide range of industry sectors across the American economy.  Fortune 500 companies founded by immigrants are not confined to a small subset of industries or fields.  Instead, they range across aerospace, defense, Internet, consumer products, specialty retail, railroads, insurance, electronics, hospitality, natural resources, finance, and many other sectors.

The report shows how America’s economy has always profited from the steady influx of foreign-born talent.  But in the new 21st century global economy, we must do more to welcome the next generation of entrepreneurs, as opportunities improve around the world and competing countries roll out the red carpet.  For years, America has loomed largest in the minds of the most enterprising individuals around the world. But as the global marketplace evolves, we cannot count on remaining their top choice. Budding entrepreneurs from new powerhouses like China and India see ever-better business environments back home.  Countries like the U.K., Canada, and Australia are taking bold steps to draw ambitious, talented people to their shores.  Meanwhile, the American immigration system continues to raise barriers to these individuals, driving away the bright foreign students who attend our universities and keeping out the aspiring businesspeople who would otherwise come here.

First and foremost, we must pursue smart immigration policies that better encourage the brightest and most entrepreneurial to build their businesses and create jobs in the U.S. We must provide incentives and opportunities for foreign students to stay after graduating from our universities with advanced degrees, especially in critical fields like science and technology. We must make it easier for American businesses to hire and keep the highly skilled workers they need to thrive. And we must create a visa specifically for the aspiring entrepreneurs who will found the Fortune 500 companies of tomorrow, rather than driving them and their investors elsewhere to create the jobs we need here.

The “New American” Fortune 500

In 1955, when Fortune Magazine published its first list of the top-grossing American companies, the firms on the list had revenues equivalent to 39 percent of the national gross domestic product.1  By 2010, the Fortune 500 companies generated revenues equivalent to 73 percent of GDP.2 These companies now form the global economy’s center of gravity, and our future prosperity is entwined with theirs.

This report explores one major reason that America’s Fortune 500 companies have been so successful: America has long been a magnet for talent. The American economy stands apart because, more than any other place on earth, talented people from around the globe want to come here to start their businesses. America has long been seen as the land of opportunity, and our economic success is built on decade after decade of the world’s best and brightest coming to our shores to work, innovate, and succeed. Beginning perhaps with Alexander Hamilton — the first Secretary of the United States Treasury and a native of Nevis in the British West Indies — enterprising people the world over have immigrated to America and played an essential role in our economic success.

By establishing the First Bank of the United States, Hamilton created a common currency and provided the credit that modernized the nascent U.S. economy and set our country on stable economic footing. The immigrants who followed Hamilton have embraced his legacy and run with it, spearheading innovation and, ultimately, America’s global economic dominance. Scottish immigrant Alexander Graham Bell revolutionized communication with the invention of the telephone. And Latvian and German immigrants Jacob Davis and Levis Strauss gave us perhaps the most “American” invention of all — the blue jeans that were so highly sought-after as emblems of America’s youthfulness and freedom that they became a kind of currency the world over.

America is a nation of immigrants, and the American economy is an economy of immigrants.  Many of our most “American” companies — Procter & Gamble, AT&T, Kraft, Colgate-Palmolive, U.S. Steel, Philip Morris, TIAA-CREF, DuPont, Goldman Sachs, Pfizer, International Paper, Kohl’s, Capital One, Honeywell, PG&E, and Nordstrom, to name just a few — were founded by immigrants. And immigrants and their children are responsible for a host of iconic American brands, ranging from Barbie — which was launched by the daughter of Polish immigrants — to Ford, built by a man whose father hailed from Cork, Ireland.

And a similar story exists for the cutting-edge American firms of tomorrow. Google, Intel, eBay, Yahoo!, Sun, and Qualcomm — this latest generation of powerhouses were all founded by immigrants. Other growing fields, like semiconductors and medical devices, are full of immigrant-founded companies as well.

The findings are clear: Immigrants drive our economy.  Eighteen percent of the 2010 Fortune 500 companies were founded by an immigrant and more than 40 percent (40.8%) were founded by either an immigrant or a child of an immigrant.3 

Today, these “New American” companies

founded by immigrants or their children

employ more than 10 million people worldwide and generate more than $4.2 trillion in revenue annually, a figure that exceeds the 2010 gross domestic product of all but two other countries in the world.4 

There are many reasons that immigrants play such a large role in our economy. Almost by definition, they are risk takers and hard workers. Immigrants make the bold choice to leave their home countries  and communities to set off on their own. And for ambitious, would-be entrepreneurs, America has always been the most fertile ground for a better life.

The cutting-edge, “American” firms of tomorrow — Google, Intel, eBay, Yahoo!, Sun, Qualcomm — are all immigrant-founded. 

But in the global economy, America’s economic dominance is far from assured. A recent poll by the Republican Pollster Frank Luntz found that only 29 percent of Americans believe our best days are ahead.  Countries that compete with the U.S. for foreign talent have adopted strong policies to draw the ambitious and highly skilled into their economies. And a recent report by the Kauffman Foundation surveying Chinese and Indian entrepreneurs who had left the United States and returned home to start businesses found that 81 percent of the Chinese and 72 percent of the Indian respondents believed that the economic opportunities were better or much better in their home countries than in the U.S.5 

Attracting the entrepreneurs who will start tomorrow’s Fortune 500 companies will require serious effort by the U.S. government. Above all, it will require reforming the current immigration laws that erect senseless and arbitrary barriers in the face of the job-creators we should most want to recruit.

This report explores the reasons foreign entrepreneurs have come to America, the obstacles they have faced, and the hard work they have put into the firms they created. The goal is to understand not only the vital role that immigrants have played in our economy, but also the steps we must take to ensure that America remains the destination for the entrepreneurs of tomorrow.

Punching Above Their Weight Class

Entrepreneurs Flock to America to Start Great Companies 

Since 1850, the population of the United States has consisted of an average of 10.5 percent of people born overseas.6 But the impact that immigrants have had on our overall economy goes far beyond their headcount.

Eighteen percent of 2010’s Fortune 500 companies have at least one founder who immigrated to the United States. Their stories span almost every industry. Charles Pfizer and Charles Erhart, cousins born in Ludwigburg, Germany, came to America seeking opportunity — and one year later founded the company that would grow into the pharmaceutical giant Pfizer.  Fluor, an engineering and construction company employing almost 40,000, was founded when a family of master builders from Sweden decided to settle in the United States and ply their trade. More recently, eBay was the brainchild of Pierre Omidyar, an entrepreneur of Iranian ancestry who immigrated to the United States from France in the 1970s.

The disproportionately large impact that immigrants have had in founding our most successful companies is hardly surprising considering who comes here and why. America’s economy attracts those who are driven to succeed. The most motivated workers around the world want to come here because our economic system and meritocratic society reward hard work and ingenuity.

And the impact of immigrant entrepreneurism in America’s most successful companies is even greater once the children of immigrants enter the business arena. This next generation is even better able to capitalize on opportunities in America. Almost 23 percent of Fortune 500 companies were founded by children of immigrants.7 

This next generation includes Estée Lauder, who co-founded the cosmetics behemoth that bears her name. Lauder was raised in a tiny apartment in Corona, Queens, above the hardware store owned by her Hungarian-immigrant father and Czech-immigrant mother. And unlike what the name might imply, the founder of Bank of America, Amadeo Giannini, was raised by parents who immigrated to the United States from Italy. Initially, he named his venture The Bank of Italy, an enterprise he said would cater to “the little fellows” — immigrants and their families who often could not get loans elsewhere.8 

With the benefit of hindsight, we now know Giannini was making a smart bet. Bank of America has grown into the fifth-largest company in the country; it now employs 288,000 people worldwide9 and generates $134 billion in revenue per year.10 

Key Findings

Eighteen Percent, or 90 companies, on the Fortune 500 list had at least one immigrant founder.

Twenty-Three Percent of the Fortune 500 firms, 114 companies, had at least one founder with an immigrant parent.

More Than 40 Percent of firms — or two in five companies in the Fortune 500 — had at least one founder who was either an immigrant or raised by someone who immigrated to the United States.

41% ”NEW AMERICAN” COMPANIES

And the evidence shows that immigrant entrepreneurs’ rate of success is only on the rise. Over the last 25 years, the percentage of Fortune 500 companies founded by immigrants has risen, despite historic lows in the percentage of foreign-born (7.9 percent of the population was foreign born in 1990; 6.2 percent in 1980).  Of the 41 companies founded since 1985, at least eight — or 19.5 percent — had an immigrant founder. The more recent immigrants, then, have been punching above their weight to an unprecedented degree.

For America to attract talented, ambitious individuals and continue to lead the global economy, we will need to make America more appealing than our competitor nations. 

But it is far from assured that this trend will continue. As the economy globalizes, talented and ambitious individuals have ever greater choices about where to start a new company, invent a new product, or discover a new medicine.  For America to attract these individuals and continue to lead the global economy, we will need to make America more appealing than our competitor nations. And this will have to start with enacting smarter immigration laws.

Immigrant-Founded Businesses Drive Every Sector of Our Economy 

The businesses that these immigrants and children of immigrants founded cut across every sector of the American economy. These companies include more than a dozen specialty retailers like Home Depot, Costco, and Staples, 71 percent of the aerospace and defense firms on the Fortune 500 list, four of the five largest commercial banks, the largest motor vehicle and parts company, the largest chemical company, the largest packaging and container company, the largest engineering and construction firm, and multiple companies in more than two dozen other industry sectors.

And the sectors that will drive job creation and economic growth over the next generation tend to be the sectors where immigrant and child-of-immigrant founders are especially well-represented. The Bureau of Labor Statistics projects that from 2008 through 2018 biomedical engineers and computer network analysts will experience the fastest job growth.11   The three highest grossing medical equipment and device makers, a frequent place of employment for biomedical engineers, were all founded by children of immigrants

Medtronic, Boston Scientific, and Baxter International.  In addition, roughly 45 percent of all of the high-tech firms in the Fortune 500 were founded by an immigrant or the child of an immigrant including companies like Qualcomm and Harris, both of which specialize in computer networking.

The story of one Fortune 500 company, Sun Microsystems,12 is particularly illuminating about the path of many new American, high-tech entrepreneurs. The firm was founded in 1982 on the Stanford University campus by three men, Vinod Khosla, Andy Bechtolsheim, and Scott McNealy. Both Khosla and Bechtolsheim came to the U.S. — Khosla from India and Bechtolsheim from Germany — to receive graduate degrees. And both — unlike the thousands of foreign graduates whom we turn away each year — were fortunate enough to be able to stay in the country and pursue their careers after graduation. In addition to founding Sun, a firm that employed 28,000 people in 2009,13 Bechtolsheim also contributed to the takeoff of another Fortune 500 company: He was one of the first investors in Google. Today, that Internet giant employs over 26,000.14 

Immigrants Spur the Creation of Jobs Across Industries, Including the Highest-Growth Sectors:

Forty-Five Percent of high-tech firms from the Fortune 500 had either an immigrant or child of an immigrant among its founders.

Fifty Percent  of the medical equipment and device makers, including the three largest players by revenue, were founded by immigrants or their children.

Seven of the 10 most valuable and recognizable brands in the world were launched by immigrants or children of immigrants. 

Immigrants Create America’s Great Brands 

Beyond founding companies, immigrants and the children of immigrants are also often the creative forces behind some of America’s and the world’s most iconic brands.  One of the two founders behind the search giant Google, the second most important global brand on Millard Brown Optimor’s Brandz survey, was Sergey Brin, an immigrant from Russia.  The toy company Mattel was founded by husbandand-wife pair Elliot and Ruth Handler, along with a partner, Harold Matson.  But it was Ruth, one of 10 children born to a blacksmith from Poland, who hatched the idea for the company’s signature product, the Barbie doll. “Ruth played an integral role in the success of Mattel,” the company told us in a statement. “She is not only credited with creating the Barbie doll, but she was one of the most successful pioneers of women in business.”15 While Ruth was serving as the firm’s president, Mattel became the largest toy manufacturer in the world, largely thanks to her iconic, blonde creation.

But Handler is hardly the only immigrant entrepreneur with a knack for capturing the world’s imagination.  Nine of the top 10 most valuable brands in the world were created by American companies, and seven of these nine companies were founded by an immigrant or a child of an immigrant.

At ConAgra Foods, President of Consumer Foods Andre Hawaux credits “immigrants who had the passion, drive and imagination to create the iconic brands Americans still love today” with much of ConAgra’s success.16 A quick glance at a grocery cart full of ConAgra’s products makes it clear what he’s talking about. Chef Boyardee — or Ettore Boiardi to his friends and family — emigrated from Northern Italy, while Ilhan New and Gary Pinckowitz, founders of the La Choy soy sauce brand and Hebrew National hot dogs came from Korea and Romania, respectively.

For some household-name firms like the Heinz Company, founded by Henry

Heinz, the rich cultural heritage of the brand is a point of pride. Henry Heinz was raised by parents who immigrated to the United States from Southern Germany. As a child, he helped his mother Anna Schmidt Heinz tend to her vegetable garden, sometimes hawking extra produce with her on the street when the family needed money.17 His first business venture was even inspired by her example: Heinz tried to mass-produce horseradish as good as his mom’s homemade German recipe.18 Always taught by his parents that every profit should be fairly earned, he said his horseradish wouldn’t have any of the cheap fillers already in many American brands then available.

“Henry John Heinz exemplifies the quintessential American success story,” says Michael Mullen, Vice President of Corporate and Government Affairs at Heinz. “He is very much the product of his parents, and the lessons he learned from them resonate in the character of the H.J. Heinz Company today.”19  Mullen says Heinz’s parents even instilled in him a saying that still guides the company’s purchasing processes:  “Deal with the seller so justly that he will want to sell to you again.”20 

Much like Heinz, many children of immigrants report being heavily shaped by their second-generation experience, which instilled in them a way of looking at the world that allowed them to succeed as entrepreneurs.  Peter Nicholas, the founder and current chairman of the medical equipment firm Boston Scientific, was raised by Greek immigrant parents.  His father, who’d come as a child from Istanbul, Turkey, settled in the Munjoy Hill neighborhood in Portland, Maine, in a Greek community that would produce dozens of immigrant children who grew up to achieve real success. He explains the phenomenon this way: “It’s almost like a gift they inherited from their mothers and fathers — these funny-looking Greek kids all had embedded in them this ambition to work hard and achieve a better life than what their parents could have ever imagined.”21 As a child, Nicholas says he was “very aware” of the old country his family came from, and how much his parents wanted him to work to take advantage of the many opportunities that America offered.

But Nicholas, like many other entrepreneurs we spoke to, points to something more fundamental. “In our family, persevering and continuing on was an unspoken way we lived,” Nicholas says, “When you hit an obstacle, you stopped, thought about it a little bit, and then found another way to move forward.” This proved helpful in the early days of Boston Scientific, a company that now employs 25,000 people. He also says his ability to spot potential in the world— and look beyond the boundaries of conventional wisdom — helped too. “Anyone that is resigned that things are inevitable will not live the life that they could lead,” Nicholas says.  “If my father had been resigned to the world the way it was, he would still be cutting stone out of a mountain, like his family had done for generations. I believe you inherit some of that mindset.”22 

That fierce determination to succeed and give back inspired some immigrant entrepreneurs to found not one, but multiple Fortune 500 American companies.  Born in a tiny, two-room house in Scotland, Andrew Carnegie watched his father, a poor weaver and democracy activist, auction off all his belongings so his family could make the 3,000mile journey to the United States. Once here, young Andrew worked his way up from a messenger boy to the magnate

10 Largest Employers Founded by Immigrants or Children of Immigrants: 

International Business Machines McDonald’s United Parcel Service Kroger General Electric Bank of America Corp. AT&T Citigroup Home Depot Aramark responsible for founding and building Carnegie Steel, a company that would eventually form the backbone of today’s United States Steel company.23 Years after selling that enterprise, he hatched the idea for another. With $20 million in donations over his lifetime, he established a teachers’ pension system that eventually became a major part of the Fortune 500 retirement firm TIAA-CREF.24 

436,000 400,000 400,000 338,000 300,000 288,000 267,000 260,000 255,000 255,000 Creating Jobs

Today, immigrant-founded Fortune 500 companies employ 3.6 million workers worldwide. When those founded by children of immigrants are also counted, the number rises to more than 10 million worldwide, a figure roughly equivalent to the entire population of North Carolina.

Fortune 500 companies founded by immigrants or children of immigrants employ 10 million people worldwide. 

In certain industries, the contribution of immigrants and their children to the American job market is particularly striking. The 10 “New American” aerospace and defense firms in the Fortune 500 employ more than a million people. The 13 “New American” specialty retailers — a group that includes Office Depot, Bed Bath & Beyond, and the parent company of T.J.Maxx — employ another roughly 950,000 workers, the vast majority of them in stores on American soil. Not counted in that category are companies like Nordstrom’s and Kohl’s, which are usually characterized by business analysts as “general merchandisers.” Those two companies, employing about 130,000 together, were founded by Johan Nordstrom of Sweden and Max Kohl of Germany, two famed immigrant entrepreneurs.

Procter & Gamble, the household products giant, shows the way immigrant founders have not only spurred job creation, but have also helped create better models for the work environment. The firm, which currently employs 130,000 people, was founded by two immigrants. James Gamble journeyed to the country at age 16, when a flood of Irish immigrants came to America, only to be met with harsh, anti-Irish prejudice. William Procter, for his part, came to the U.S. from England. He’d tried to succeed as a dry goods merchant in London, but his shop was vandalized and robbed the day after it opened in 1831, leaving him thousands of dollars in debt.25 

A letter that Procter’s father wrote him shortly after his loss indicated the bright light of opportunity that America represented to many struggling families.  Procter’s father mentions his son’s “gloomy prospects” and that the robbery could take “some years” to overcome. News from a family member already in America, he added, couldn’t be more different.  “We are quite pleased with the accounts from America,” he told his son, “your mother so much so that there is nothing, she says, but the water that prevents her [from] going there.”26 Within three years, Procter was sailing to America himself, where he met James Gamble and decided to collaborate in a new business venture.

Ed Rider, the chief archivist for the company, says the founders’ travails gave them a special appreciation of their workers’ struggles and of the importance of fostering workers’ well-being and advancement. By 1886, William Procter’s son had created one of the country’s first profit-sharing plans for employees. “He carried some of our founding values forward by creating a plan that would allow employees to better their own situations and own a piece of this great company,” Rider explains. A few years later, Rider says, “even the lowliest vat stirrer at an Ivory Soap plant could get help becoming a citizen” when the company began offering on-site citizenship classes at one of its New York factories.27  Bob McDonald, the current CEO of P&G, has spoken in the past of how such a powerful history and founding story continues to inspire his work. “When I became CEO,” he said at last year’s shareholder meeting, “I stepped into the role feeling as though I stood on the shoulders of giants.”28 

Leonard A. Lauder, the former CEO and current Chairman Emeritus of the Estée Lauder Companies, takes a wider view of the employment picture.  His mother, Estée Lauder, an entrepreneur and the child of immigrants on both sides, built her cosmetics empire through a combination of brilliant salesmanship and a fierce drive to succeed. Mr. Lauder says that early on, his mother wanted to make a connection with one prominent, national cosmetics buyer, so much that she wasn’t daunted when she showed up to the buyer’s office for a 9 a.m. appointment and was told she was too busy to meet. Instead, Lauder sat patiently in the reception area until evening, when she finally was let in for a one-onone session with her fellow female executive. “They quickly formed a close bond of friendship,” Lauder says, “and her firm became one of our best customers.”29 

But the more than 31,000 people employed by the cosmetics behemoth are hardly the only ones Lauder says who can trace their jobs back to the hard work of Estée Lauder and her husband and cofounder Joseph Lauder, also the child of immigrants.  “That number doesn’t even begin to count all the ancillary jobs that they helped create,” Lauder says, citing the workers at box companies, trucking firms, and plastics manufacturers that are employed getting millions of Estée Lauder products to market each year. “If you follow the food chain all the way back,” he says, “I would say that the two people behind our company could have easily created hundreds of thousands of jobs.”

Lauder says that knowing the impact his mother had only makes him more upset when he hears that many would-be immigrants today have trouble staying in the U.S. to start their businesses. “When the door starts closing to immigrant entrepreneurs,” he says, “Not only do companies like ours lose, but the whole country loses.”30 

United States  $14.6T The combined revenues of “New American” Fortune 500 companies would constitute the 3rd Largest Country outside the United States. 

Fortune 500 companies founded by immigrants or children of immigrants

China  $5.7T $4,256,000,000,000

Japan  $5.4T

Germany  $3.3T

France $2.6T

United Kingdom $2.3T

Driving the U.S. Economy

The revenues generated by Fortune 500 firms founded by immigrants or their children occupy a powerful place in the U.S. economy, driving development and growth in GDP.  In 2010, Fortune 500 firms founded by an immigrant directly generated more than $1.7 trillion in revenues — a figure greater than the GDP of many highly developed countries that year, including South Korea, Canada, Spain, and Argentina. Some individual firms had a particularly strong impact. In 2010, the iconic telecommunications firm AT&T, co-founded by Scottish immigrant Alexander Graham Bell, generated more than $124 billion in revenue. Pharmacy wholesaler AmerisourceBergen, which was founded by French immigrant Lucien Napoleon Brunswig, pulled almost $79 billion in revenue.

When companies founded by children of immigrants are added to the total, the number balloons even more. The 200 firms on the Fortune 500 list founded

Fortune 500 companies founded by immigrants

$1,708,000,000,000 

Italy Brazil

$2.0T $2.0T

Canada

Russia India 

$1.6T

$1.5T $1.5T

Immigrants and the Creation of U.S. Wealth:

In 2010, Fortune 500 companies founded by immigrants to the United States generated more than

$1.7 Trillion in revenues. 

In 2010, companies founded by immigrants or children of immigrants generated more than

$4.2 Trillion in revenues. 

by either an immigrant or the child of someone who immigrated to the United States generated more than $4.2 trillion in revenues in 2010. That means if all those “New American” firms came together as a country, they’d have the third largest GDP in the world outside the United States, behind only China and Japan.31 

But the ability of immigrants and their children to create U.S. wealth extends far beyond the boardrooms of the companies they founded. Throughout history, immigrant entrepreneurs have proved capable not only of founding major U.S. firms, but also of economically revitalizing entire geographic areas as well. Take the story of Hugh J. Chisholm, the founder in 1898 of International Paper, a company with more than $25 billion in revenue in 2010.  Chisholm was born in Chippewa, Ontario. His father died when Chisholm was just 13 years old, and Chisholm was forced to leave school and work to support his mother and nine siblings—at times through menial jobs like digging for potatoes. Ultimately, he began selling newspapers on a plush, luxury train that traveled from Toronto to Detroit, and his dream of moving to the United States in search of better opportunities was born.32 

Chisholm found early success making some of America’s first postcards. But in 1898, he took on the greater challenge of founding the International Paper Company, a firm that merged 17 paper mills scattered along the Eastern Seaboard. He based the company in his adopted state of Maine, and decided to strengthen that state’s burgeoning paper industry by building one of the largest paper mills of its day in the tiny rural outpost of Rumford. “A few miles from Canton, capitalists are putting a new city together where only a year ago a howling wilderness existed,” a newspaper reporter for the Oxford Democrat wrote in 1892, “Millions of dollars will be laid out here this year.”33 By the close of that year, the city had a railroad depot; a new, 1500-foot deep canal; and the beginnings of a giant paper mill that would eventually employ 3,000 people.34 Chisholm would personally design a nearby garden suburb for those workers, which let them live in brick duplex homes flanked by parks.

The forward-thinking, creative nature of “New American” entrepreneurs has also led many of them to spur success and economic development in areas far afield from their own. Scottish immigrant Alexander Graham Bell’s telephone innovations, for instance, created fertile ground for the 15 telecommunications firms that are in the Fortune 500 — companies that generated $422 billion in revenues in 2010. What’s more, immigrants and their children were involved in founding at least seven of the Fortune 500’s commercial banks, the institutions that often sponsor the loans or initial public offerings that help new businesses thrive. Take the example of Amadeo Giannini, the Bank of America founder, who started his enterprise after his father was shot trying to collect on a $10 loan he had made to someone outside the traditional banking system.  Later, Giannini was in a position to offer a loan to entertainer Walt Disney when he wanted to make Snow White, his first feature film. He also cut a check to the Hewlett-Packard founders, and bought up the bonds that financed the construction of the Golden Gate Bridge during the shaky economic days of the Great Depression.35 

Overcoming Obstacles

To be able to contribute fully to U.S. economic and job growth, immigrants and their children must first overcome a whole series of obstacles, many of which would make less determined business people blanch. When German immigrant Maxwell Kohl, founder of Kohl’s department store, opened his first grocery store in Brookfield, Wisconsin, his English was so poor that customers often had to make their own change and teach him the names of basic products like Corn Flakes.36 Joseph

J. Jacobs, the founder of the 39,000-person firm Jacobs Engineering Group, was raised by his mother and a father who had immigrated to the United States from Lebanon.  His father’s business peddling straight razors on the streets of Brooklyn was decimated when safety razors showed up after World War I.  Still, the late Joseph Jacobs has written that his childhood was a good one, and his desire to follow his parents’ determined and driven example — and to prove he fit in with his American peers while doing it — made him uniquely poised to scale to the heights of success.   Commenting on his experience, he has written, “it’s no wonder that we . . . children of immigrants have become such a potent force in American business and American culture.”37 

Today, aside from the normal marketplace challenges that any business faces, U.S. immigration policy can make things more complicated for many immigrant entrepreneurs. Arriving in the country and staying here can be challenging — and for many budding entrepreneurs, impossible. In fact, despite the many proven benefits immigrants bring to the American economy our immigration laws often create the very obstacles that keep them away. In 2007 and 2008, a period of strong economic growth, visas for temporary high skilled workers were in such short supply that U.S. Citizenship and Immigration Services office exhausted the year’s supply of visas in less than a week; and even during the recession, the annual cap has been insufficient to meet demand.38 The caps have kept many high-tech workers far away from American shores, including immigrants who could have founded the high-tech companies that will spur job and economic growth in the future.

Visas for temporary high- skilled workers were in such short supply in 2007 and 2008 that they were exhausted in less than a week. 

The situation is even less promising for high-skilled workers that want to stay here permanently to pursue the American dream. These workers must apply for employment-based green cards, which are in such short supply that some applicants face wait times of nine years or more, during which it is difficult to change jobs, move cities, or even accept a promotion.39 

And more critical for the aspiring immigrant entrepreneurs of tomorrow, there is currently no visa category specifically designed for immigrant entrepreneurs. Even if they already have a business plan and committed American venture capital backing their idea. America’s economy is the land of opportunity, but without the right visa opportunities, the thousands of entrepreneurs we turn away each year will simply go to our competitor nations. And many of those competitors will embrace the immigrant entrepreneurs with open arms. The United Kingdom recently enacted a visa for entrepreneurs. In China, students who study in America but return to Beijing to start their businesses are practically given a hero’s welcome. Through a special overseas student program, many can qualify for $15,000 in government startup capital and automatic interest forgiveness on all their business loans, not to mention coveted permits that allow them to live within city limits. The Chilean government has offered $40,000 and a visa to entrepreneurs who were willing to start a company there.

But America’s immigration laws do the opposite: They create barriers to entrepreneurs from around the world who are otherwise determined to build their businesses here.  For example, John Carey, a founder of the semiconductor firm American Micro Devices (AMD), tried for several years before he was able to immigrate to the United States from abroad in the 1960s. Born in Liverpool, he dreamed of moving to America when he finished a graduate program and internship training in the United Kingdom.  He wanted to move to Silicon Valley in California — already the heart of his chosen industry. But Carey was prevented from doing so in 1959 because he lacked the $1,000 in savings that was needed at the time to qualify for the relevant visa. So instead, Carey went to Montreal, Canada the Kiran for what he thought would be a temporary position. He wound up staying—and contributing to Canada’s economy—for four years.  It wasn’t until 1963, while visiting California, that he finally got a job that brought him to America.40 The next time, America might not be so lucky. While our visa laws have changed since 1963, the same basic problems remain — and the next generation’s John Carey might build his innovative company in another country that competes more shrewdly for talent.

Bureaucratic Barriers for Immigrants:

There is no current visa for entrepreneurs who want to come to America, even if they already have American venture capital to fund their business plan.

There are insufficient temporary visas for highly skilled workers to meet needs of American employers; the limits are reached every year, at times in a matter of days.

Employment-based green cards – the permanent visas for highly skilled workers – are only a small portion of our annual green card total and are capped equally for every country (for instance, Iceland and India get the same number). As a result, an estimated 500,000 highly-skilled workers at U.S. companies face delays that can exceed 10 years to earn permanent residency.

Even founding a successful Fortune 500 company doesn’t make one immune from some of the many challenges and bureaucratic hurdles of the visa process.

C. Patel’s story exemplifies the American dream: Raised in an Indian-national family in Zambia, Patel came to America in 1980 for a medical residency and stayed to build a fortune through two major health care companies, including WellCare Health Plans, number 328 on the Fortune 500 List.  Practicing cardiology while also running an insurance business, he routinely put in 18 hour days his first decade and a half at WellCare. Still, he considers himself one of the lucky ones. “Back when I came, finding someone to write you a recommendation for a residency program wasn’t easy without connections,” Patel recalls.  Many Indian-national families also lacked the funds to cover their travel to the United States.41 

Now a CEO and prominent philanthropist in the Tampa area, Patel experiences daily the constraints the visa system places on his business.  “Things are improving gradually,” he says, “but I still think many people are getting too many unreasonable visa denials.”  This makes it more difficult for his business to grow. Some of Patel’s employees based overseas can’t get a visa to come into the country for business meetings, a fact he calls a “frustration.”42 

Conclusion

Immigrants and their children create American jobs and drive our economy.  More than 40 percent of Fortune 500 companies were founded by one of these “New Americans,” and the companies they founded generate more than $4.2 trillion in revenues each year, and employ more than 10 million people — a global presence that rivals the entire GDP of all but three nations. There is no doubt that their contributions have been essential to American prosperity.  But there is also no guarantee that the next generation of top entrepreneurs will build their businesses in this country, with competing attractions back home and in other countries with more welcoming immigration systems.

To compete, we must modernize our own immigration system so that it welcomes, rather than discourages, the Fortune 500 entrepreneurs of the 21st century global economy. We must create a visa designed to draw aspiring entrepreneurs to build new businesses and create jobs here. We must give existing American companies access to hire and keep the highly skilled workers from around the world whom they need to compete. And we must stem the loss of highly skilled foreign students trained in our universities, allowing them to stay and contribute to our economy the talent in which we’ve invested. Without these kinds of smart changes to our immigration laws, America risks losing its place as the natural home for the world’s business powerhouses — the Fortune 500 companies of the future.

Appendix

Appendix A: Fortune 500 Companies with Immigrant Founders 

AT&T 7 Alexander Graham Bell Scotland Verizon Communications 13 Alexander Graham Bell Scotland Procter & Gamble 22 William Procter, James England, Ireland

Gamble (respectively) AmerisourceBergen 24 Lucien Brunswig France United Technologies 37 Igor I. Sikorski Russia Goldman Sachs Group 39 Marcus Goldman Germany Pfizer 40 Charles Pfizer, Charles Germany

Erhart International Assets Holding 49 Saul Stone Russia Kraft Foods 53 James L. Kraft Canada Comcast 59 Daniel Aaron Germany Intel 62 Andrew Grove Hungary General Dynamics 69 John Philip Holland Ireland Honeywell International 74 Albert Butz Switzerland News Corporation 76 Rupert Murdoch Australia Ingram Micro 80 Geza Czige Hungary Merck 85 Theodore Weicker Germany DuPont 86 E.I. du Pont France TIAA-CREF 90 Andrew Carnegie Scotland Google 102 Sergey Brin Russia International Paper 104 Hugh Chisholm Canada Fluor 111 John Simon Fluor Sr. Switzerland

Atmos Energy 424 Frank Storm, J.C. Storm Austria SPX 427 Charles E. Johnson Sweden O’Reilly Automotive 429 Charles Francis O’Reilly Ireland Harley-Davidson 430 William S. Harley England Owens Corning 433 Michael Joseph Owens Ireland Starwood Hotels & Resorts 438 Barry Sternlicht Poland

Worldwide NYSE Euronext 444 Benjamin Seixas Portugal Tenneco 446 August F. Meyer, William Germany,

A. Walker England (respectively) El Paso 447 Paul Kayser Hungary ArvinMeritor 450 H.H. Timken, W.R. Timken Germany Lubrizol 453 Frank A. and Frances Netherlands Albert (“Alex”) Nason Broadcom 460 Henry Samueli Poland Con-way 483 Leland James Scotland Casey’s General Stores 485 Don Lamberti Italy

CB Richard Ellis Group 499 Albert Nion Tucker, Ireland John Conant Lynch

Endnotes

1  CNN Money, The Fortune 500: A Banner Year, April 4, 2006, available at http://money.cnn.com/2006/03/31/ news/companies/intro_f500_fortune/index.htm (last visited June 13, 2011).

2  CNN Money, If the Fortune 500 Were a Country, available at http://money.cnn.com/magazines/fortune/fortune500/2011/g20_interactive/index.html (last visited June 13, 2011).

3 This figure is actually somewhat conservative. Eight firms in the Fortune 500 were founded by a government charter—a group that includes Fannie Mae and Freddie Mac—and each of these is counted as a firm having a non-immigrant founder, even though it actually has no identifiable “founder” at all. Similarly, four firms were started when hundreds of people banded together—either in an investment vehicle or a farm collective—and each is also counted as non-immigrant founded, despite it being highly likely that one or several immigrants were included among their initial ranks.

We also took a cautious approach with several firms with particularly fragmented beginnings. Many modern day utilities, for instance, are the product of many tiny, local firms merging together into a regional entity over time. When historical records were shoddy, or there was minimal information on the founders of the biggest predecessor operations, we counted the company as being founded by non-immigrants only. We did this even when, as was the case of FPL Group (#147 on list), DTE Energy (#285), and Ameren (#320), it appeared an immigrant or the child of an immigrant was heavily involved in starting the modern-day firm.

4 The report counts worldwide numbers for revenue and number of employees, based on available public information.

5  Kauffman Foundation, “The Grass is Indeed Greener in India and China for Returnee Entrepreneurs,” 2011.

6  Schmidley, A. Dianne, U.S. Census Bureau, Current Population Reports,

Series P23-206, Profile of the Foreign-Born Population in the United

States: 2000, U.S. Government Printing Office, Washington, DC, 2001. Pg. 9., available at http://www.census. gov/prod/2002pubs/p23-206.pdf (last visited June 13, 2011), and U.S. Census, Population by Sex, Age, Nativity, and U.S. Citizenship: 2009, available at http://www. census.gov/population/socdemo/foreign/cps2009/ T1.2009.pdf (last visited June 13, 2011)

7  Here and through this report, we have counted Fortune 500 companies as founded by the children of immigrants only if they did not also have an immigrant founder. The five companies that had both an immigrant and a child of an immigrant among their founders are counted as immigrant-founded only, to avoid counting them twice.

8  PBS, Who Made America, available at http://www. pbs.org/wgbh/theymadeamerica/whomade/giannini_ hi.html (last visited June 13, 2011)

9  Hoovers, Key Bank of America Financials, available at http://www.hoovers.com/company/Bank_of_America_ Corporation/hxccci-1-1njea5.html (last visited June 13, 2011).

10  Fortune 500, Bank of America, May 23, 2011, available at http://money.cnn.com/magazines/fortune/fortune500/2011/snapshots/2580.html (last visited June 13, 2011).

11 United States Department of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2010-2011 Edition, available at http://www.bls.gov/oco/oco2003. htm (last visited June 13, 2011).

12  Sun Microsystems was still listed on the Fortune 500 list as an independent firm in 2010. The company has since been bought by Oracle, yet another tech company with immigrant ties; Bob Miner, one of its cofounders, was the son of Assyrian immigrants from Iran, while his co-founder Larry Ellison was adopted by his grandfather, an immigrant from the Crimea in Ukraine.

13  USA Today, Oracle: We’re Hiring, Not Firing After Sun Acquisition, January 28, 2010, available at http://www. usatoday.com/tech/news/2010-01-28-oracle28_ST_N. htm (last visited June 13, 2011).

14  Google Investor Relations, Google Announces First Quarter 2011 Results, April 14, 2011, available at http:// investor.google.com/earnings/2011/Q1_google_earnings.html (last visited June 13, 2011).

15  Statement conveyed in e-mail from Mattel spokeswoman Jules Andres, May 26, 2011.

16  Statement conveyed in e-mail from ConAgra spokeswoman Becky Niiya, May 31, 2011.

17  Hallett, Anthony and Diane Hallett. Entrepreneur Magazine Encyclopedia of Entrepreneurs. Hoboken, New Jersey: John Wiley & Sons, Inc, 1997. (Hereinafter “Hallet”)  Pg 252.

18  Hallett, pg. 253.

19  Mullen, Michael. Original interview, May 6, 2011 (Hereinafter “Mullen”).

20 Mullen.

21  Nicholas, Peter. Original Interview, May 13, 2011 (Hereinafter “Nicholas”).

22 Nicholas.

23  PBS, Meet Andrew Carnegie, available at http://www. pbs.org/wgbh/amex/carnegie/sfeature/meet_scotland. html (last visited June 13, 2011)

24 TIAA Cref, About Us, available at http://www.tiaa-cref. org/public/about/press/about_us/history.html (last visited June 13, 2011)

25  Rider, Ed. Original Interview, April 20, 2011 (“Rider”).

26 Letter from William Procter Sr. to son William Procter Jr. Jan. 11, 1832. Courtesy of Procter & Gamble Corporate Archives (Some minor changes in punctuation were made for readability).

27  Rider.

28  Comments from 2010 Procter & Gamble shareholder’s meeting, relayed by P&G Communications specialist Jeff Leroy in e-mail on April 27, 2011.

29  Lauder, Leonard. Original Interview,June 6, 2011 (“Lauder”).

30  Lauder.

31  2010 CIA World Factbook

32  Paper Industry Hall of Fame, Hugh Chisholm, available at  http://www.paperhall.org/inductees/bios/1998/ hugh_chisholm.php (last visited June 13, 2011)

33 The Bethel Journals, 1892 Journal, available at http:// www.thebetheljournals.info/1892/1892_journal_4.htm (last visited June 13, 2011)

34  Note: These workers were ultimately employed by the Oxford Paper Company, another paper company Chisholm founded.

35  PBS, Golden Gate Bridge, available at http://www. pbs.org/wgbh/amex/goldengate/peopleevents/p_giannini.html (last visited June 13, 2011)

36  Badger, Emily. “Public Servant.” Milwaukee Magazine, August 23, 2010.

37 Jacobs, Joseph I. The Anatomy of an Entrepreneur: Family, Culture, and Ethics. San Francisco: ICS Press, 1991.

38 U.S. Citizenship and Immigration Services, Office of Communications, USCIS Update, April 3, 2007, available at http://www.uscis.gov/files/pressrelease/H1BFY08Cap040307.pdf (last visited June 13, 2011) and U.S. Citizenship and Immigration Services, Office of Communications, USCIS Update, April 8, 2008, available at http://www.uscis.gov/files/article/H-1B_8Apr08.pdf (last visited June 13, 2011).

39 U.S. Department of State, Bureau of Consular Affairs, Visa Bulletin, June 2011, available at http://travel.state. gov/visa/bulletin/bulletin_1360.html (last visited June 13, 2011).

40  Elonics. “AMD Founder Joins Elonics Board.” Livingston, United Kingdom: Press Release, Dec. 03, 2009.

41  Patel, Kiran C. Original Interview, May 18, 2011 (“Patel”).

42  Patel.

The Partnership for a New American Economy brings together a bipartisan group of over 250 business leaders from all sectors of the economy and mayors from across the country to make the case that sensible immigration reform will drive economic growth and create American jobs.

Learn more at www.RenewOurEconomy.org

Posted in EB-5 Immigrant Investor, Immigrant Entrepreneurs, Investor visa, Job Creation | Tagged | Leave a comment

BIA PRECEDENT TABLE-Revised 08-12-2011

Posted on November 7, 2011 by Mike Baker

Compiles head-notes from BIA precedent cases published in volumes 21, 22, 23, 24 and 25 of the Administrative Decisions under the Immigration and Nationality Laws of the United States, organized by topic. As such, it includes all BIA cases published from Matter of Esposito (March 30, 1995) to the present.

TOPIC HEADINGS

ADJUSTMENT OF STATUS

Arriving Aliens

Child Status Protection Act

Chinese Student Protection Act

Cuban Refugee Adjustment Act

Eligibility

Fiancees

Rescission of Adjustment of Status

Section 245(i) Adjustment

ADMINISTRATIVE CLOSURE OF CASES

ADMISSION / ENTRY

Adjustment of Status

Arriving Alien

Cancellation of Removal (Non-LPR)

Claimed Status Review

Nunc Pro Tunc Permission to Reapply

Returning Lawful Permanent Resident

Unlawful Reentry

Withdrawal of Application for Admission

AGGRAVATED FELONIES

Accessory After the Fact

Adjustment of Status

Alien Smuggling

Arson

Burglary

Commercial Bribery

Conspiracy

Controlled Substances

Crimes of Violence

Date of Conviction

Divisible Statutes

Firearms

Fraud and Deceit

Misprision of a Felony

Obstruction of Justice

Perjury

Prostitution for Commercial Advantage

Rape

Robbery

Section 212(h) Waivers

Sentence Enhancement

Sexual Abuse of a Minor

Theft Offenses

Transportation of Undocumented Aliens

AIRLINE FINES

AMERICAN BAPTIST CHURCHES (ABC) SETTLEMENT

APPEALS

Factfinding on Appeal

Timeliness

Waiver of Right to Appeal

ASYLUM

Adjustment of Status

Country Conditions

Countrywide Persecution

Credibility and Corroboration

Criminal Activity

Exclusion Proceedings

Firm Resettlement

Frivolous Applications

Jurisdiction of Immigration Judges

North Korean Human Rights Act

One-Year Application Deadline

Particular Social Group

Past Persecution

Persecution – Antisemitism

Persecution – Clan Membership

Persecution – Coercive Population Control

Persecution – Cumulative Discrimination

Persecution – Domestic Violence

Persecution – Drug Informants

Persecution – Extortion

Persecution – Female Genital Mutilation

Persecution – Guerrilla Recruitment

Persecution – Kidnapping

Persecution – Mixed Motives

Persecution – Nonphysical Harm

Persecution – Opposition to Corruption

Persecution – Rape

Persecution – Reasons for Persecution

Persecution – Religion

Persecution – Wealth

Stowaways

Terrorists

Visa Waiver Program

Well-founded fear

ATTORNEY DISCIPLINE

ATTORNEY GENERAL CERTIFICATION

BACKGROUND AND SECURITY CHECKS

CANCELLATION OF REMOVAL (LAWFUL PERMANENT RESIDENTS)

Continuous Residence

Criminal Convictions

Standards

CANCELLATION OF REMOVAL (NON-LAWFUL PERMANENT RESIDENTS)

Continuous Residence

Criminal Convictions

Exceptional and Extremely Unusual Hardship

Good Moral Character

Ineligible Aliens

Qualifying Relatives

 CANCELLATION OF REMOVAL (SPECIAL RULE) 

Continuous Physical Presence

Battered Spouse

CHILD PROTECTION ACT

CITIZENSHIP

Acquisition of Citizenship by a Child

Ineligible to Citizenship
CONTINUANCES

CONTROLLED SUBSTANCE DEPORTABILITY

CONVENTION AGAINST TORTURE

Acquiesence of Public Official

Burden of Proof

Definition of Torture

Jurisdiction

CRIMES INVOLVING MORAL TURPITUDE

Assault

Attempt Offenses

Cancellation of Removal Eligibility

Child Pornography

Child, Sexual Conduct With

Controlled Substances

Corporal Injury on a Spouse

Date of Admission

Defined

Domestic Battery

Driving Recklessly to Evade Police

Driving Under the Influence

Evidence

Failure to Register as Sex Offender

Financial Violations

Misprision of a Felony

Money Laundering

Purely Political Offense

Section 212(c) Eligibility

Stalking

Theft

Trafficking in Counterfeit Goods

Welfare Fraud

CRIMINAL CONVICTIONS

Court Martial

Finality

Foreign Convictions

Deferred Adjudication

Naturalization

Pardons

Penalty or Punishment

Records of Conviction

Rehabilitative Statutes

Sentence

Vacated Convictions

Violations

Youthful Offenders

DETENTION AND BOND

Jurisdiction

Mandatory Detention

National Security Considerations

Pending Appeals

Standards

Terrorists

Transition Period Custody Rules (TPCR)

DUE PROCESS

EXCLUSION PROCEEDINGS

Adjustment of Status

Asylum

In Absentia Proceedings

Motion to Terminate Proceedings

Parole

EXPEDITED REMOVAL

Claimed Status Review

FIREARMS OFFENSES

FOREIGN POLICY GROUNDS DEPORTABILITY

Adverse Foreign Policy Consequences

Espionage

GOOD MORAL CHARACTER

IN ABSENTIA PROCEEDINGS

Custody

Exceptional Circumstances

Exclusion Proceedings

Immigration Judges

Ineffective Assistance of Counsel

Jurisdiction

Notice to Alien

Section 242(b) Proceedings

Stays

Voluntary Departure

Warnings for Failure to Appear
INADMISSIBILITY

Controlled Substance Violation

Falsely Claiming Citizenship (Section 212(a)(6)(C)(ii))

Prostitution (Section 212(a)(2)(D)

INEFFECTIVE ASSISTANCE OF COUNSEL

Advice to Client

In Absentia Proceedings

Standards

MARRIAGE FRAUD

Marriage During Proceedings

Section 216(c)(4) Hardship Waivers

 MINORS

MOTIONS TO RECONSIDER

Affirmances Without Opinion

Deadlines

Sua Sponte Authority

Untimely Appeals

MOTIONS TO REMAND

Joint Motions

Time and Number Limits

MOTIONS TO REOPEN

Burden of Proof

Coercive Family Planning Claims

Deadlines

Joint Motions

Jurisdiction

Sua Sponte Authority

Time and Number Limits

Voluntary Departure

NATURALIZATION

ORDERS TO SHOW CAUSE

PAROLE

PROTECTIVE ORDERS

REAL ID ACT

“1 Central Reason” Requirement

RECOGNITION AND ACCREDITATION

REFUGEES

Date of Admission

Jurisdiction

REINSTATEMENT OF REMOVAL

REMOVAL GROUNDS

Crime of Child Abuse

Crime of Domestic Violence

Extrajudicial Killings

Inadmissible at Time of Entry

Smuggling

Violation of Protection Order

REMOVAL PROCEEDINGS

Alienage and Identity

Burden of Proof

Competency

Evidence

Filing Deadlines

Immigration Judges

Minors

Naturalization

Notice

Prosecutorial Discretion

Refugees

Witnesses

SECTION 209(C) WAIVERS

SECTION 212(C) WAIVERS

Adjustment of Status

Aggravated Felonies

Comparable Grounds of Inadmissibility

Drug Offenses

Factors

Falsification of Documents

Residence and Domicile

Retroactivity

SECTION 212(H) WAIVERS

SECTION 212(I) WAIVERS

SECTION 213 WAIVERS

SECTION 237(A)(1)(H) WAIVERS

SECTION 241(A)(1)(H) WAIVERS

SMUGGLING OF ALIENS

SUSPENSION OF DEPORTATION

Extreme Hardship

Physical Presence

Stop-Time Rule

TEMPORARY PROTECTED STATUS

VISA PETITIONS

Adoption

Legitimated Children

Employment-Based

Marriage

Pending, Continuance for

Pending, Reopening for

Widows

VOLUNTARY DEPARTURE

Appeal Waiver

Bond

Conditions

Duty to Inform

Failure to Depart

In Absentia Proceedings

Motions to Reopen

Standards

WITHHOLDING OF REMOVAL

Burden of Proof

Convention Against Torture (CAT) Claims

Particularly Serious Crime

    Removal Order Requirement
Posted in BIA, BIA PRECEDENT TABLE, Board of Immigration Appeals | Tagged | Leave a comment

AGGRAVATED FELONY CASE SUMMARY

Posted on November 6, 2011 by Mike Baker

By Immigration Judge Bertha A. Zuniga (San Antonio)

November 15, 2010 (Summary updated regularly) | Aggravated Felony Outline (pdf)

DISCLAIMER: The summaries and cases provided herein are those of the author alone and do not represent a position or policy of the Immigration Court, Executive Office for Immigration Review or United States Department of Justice. The cases and summaries are provided solely for the purpose of legal discussion and do not represent a position or ruling by the author in any immigration case.

Abbreviations

  • Anti-Drug Abuse Act of 1988 ADAA
  • Aggravated Felony AF
  • Attorney General AG
  • Board of Immigration Appeals BIA
  • Circuit Cir.
  • Controlled Substances Act CSA
  • Crime of Violence COV
  • Crime Involving Moral Turpitude CIMT
  • Illegal Immigration Reform and Immigrant
  • Responsibility Act of 1996 IIRIRA
  • Immigration Act of 1990 IMMAct
  • Immigration Judge IJ
  • Immigration and Nationality Act INA
  • Pre-Sentence Report PSR
  • United States U.S.
  • United States Sentencing Guidelines Manual U.S.S.G.

TABLE OF CONTENTS

(A) Murder, Rape, or Sexual Abuse of a Minor………………………………………………………..7
• Murder……………………………………………………………………………………………………..7
• Rape…………………………………………………………………………………………………………7
• Sexual Abuse of a Minor……………………………………………………………………………8
(B) Illicit Trafficking in Controlled Substance (as defined in § 102 of the Controlled Substances Act), Including a Drug Trafficking Crime (as defined in 18 U.S.C. § 924(c))………………………………………………………………………………………………………………………….13
(C) Illicit Trafficking in Firearms/Destructive Devices (18 U.S.C. § 921) or Explosive Materials (18 U.S.C. §841(c))……………………………………………………………………………….21
(D) Laundering Monetary Instruments (18 U.S.C. § 1956) or Monetary Transactions over $10,000 in Property Derived from Unlawful Activities (18 U.S.C. § 1957)………………..22
• Laundering Monetary Instruments (18 U.S.C. § 1956)……………………………….22
(E) Explosive Materials Offenses (18 U.S.C. §§ 842(h)-(i), 844(d)-(i)), Firearms Offenses (18 U.S.C. §§ 922(g)(1)-(5), (j), (n)-(p), (r) and 924(b), (h)), or Firearms Offenses (IRS Code § 5861 (1986))……………………………………………………………………………………………22
(F) Crimes of Violence (18 U.S.C. § 16) (Not including purely political offenses)–Term of imprisonment at least 1 year……………………………………………………………………………..24
• Indeterminate Sentences…………………………………………………………………………..24
• Abduction/Kidnapping……………………………………………………………………………..24
• Armed with Intent……………………………………………………………………………………25
• Arson………………………………………………………………………………………………………25
• Assault (Misdemeanor)…………………………………………………………………………….26
• Assault……………………………………………………………………………………………………27
• Battery…………………………………………………………………………………………………….29
• Burglary of a Habitation…………………………………………………………………………..31
• Burglary of a Nonresidential Building………………………………………………………32
• Burglary of a Vehicle……………………………………………………………………………….32
• Child Abuse…………………………………………………………………………………………….33
• Child Abduction………………………………………………………………………………………33
• Contempt (criminal)…………………………………………………………………………………33
• Criminal Coercion……………………………………………………………………………………33
• Criminally Negligent Homicide…………………………………………………………………34
• Criminal Mischief……………………………………………………………………………………34
• Criminal Sexual Misconduct…………………………………………………………………….34
• Criminal Trespass……………………………………………………………………………………34
• Discharging a Firearm/Shooting into an Occupied Dwelling………………………34
• Domestic Violence……………………………………………………………………………………35
• DWI/DUI………………………………………………………………………………………………..36
• Endangerment…………………………………………………………………………………………37
• Escape…………………………………………………………………………………………………….37
• Evading Arrest of an Officer…………………………………………………………………….38
• Facilitation……………………………………………………………………………………………..38
• Failure to Report……………………………………………………………………………………..39
• False Imprisonment…………………………………………………………………………………39
• Grand Theft…………………………………………………………………………………………….39
• Harassment……………………………………………………………………………………………..39
• Indecency with a Child…………………………………………………………………………….40
• Injury to a Child………………………………………………………………………………………40
• Involuntary Manslaughter………………………………………………………………………..41
• Manslaughter………………………………………………………………………………………….41
• Mayhem………………………………………………………………………………………………….42
• Menacing………………………………………………………………………………………………..42
• Murder for Hire………………………………………………………………………………………42
• Possession of a Deadly Weapon………………………………………………………………..43
• Possession of a Firearm……………………………………………………………………………43
• Rape/Statutory Rape………………………………………………………………………………..44
• Reckless Conduct…………………………………………………………………………………….46
• Recklessly Burning or Exploding………………………………………………………………47
• Resisting Arrest……………………………………………………………………………………….47
• Retaliation………………………………………………………………………………………………47
• Rioting……………………………………………………………………………………………………47
• Robbery…………………………………………………………………………………………………..47
• Sexual Abuse…………………………………………………………………………………………..48
• Sexual Assault…………………………………………………………………………………………48
• Sexual Battery…………………………………………………………………………………………49
• Stalking…………………………………………………………………………………………………..50
• Tampering with Consumer Goods……………………………………………………………..50
• Terrorism………………………………………………………………………………………………..51
• Unauthorized Use of a Motor Vehicle………………………………………………………..51
• Unlawful Imprisonment……………………………………………………………………………52
• Unlawful Wounding…………………………………………………………………………………52
• Vehicular Homicide…………………………………………………………………………………52
• Vehicular Manslaughter…………………………………………………………………………..53
(G) Theft/Burglary/Receipt of Stolen Property–Term of Imprisonment at least 1 year…53
• Theft/Receipt of Stolen Property……………………………………………………………….53
• Burglary………………………………………………………………………………………………….58
(H) Demand for or Receipt of Ransom (18 U.S.C. §§ 875, 876, 877, or 1202)……………59
(I) Child Pornography (18 U.S.C. §§ 2251, 2251A, or 2252)……………………………………59
(J) RICO (18 U.S.C. § 1962) sentence of 1 year or more may be imposed for transmission of wagering info (18 U.S.C. § 1084)–for second or subsequent offenses and sentence of 1 year or more may be imposed or Gambling Offenses (18 U.S.C. § 1955)–sentence of 1 year or more may be imposed……………………………………………………………………………….60
(K)(i) Owning, Controlling, Managing, Supervising Prostitution Business…………………60
(ii) Transportation for Prostitution if Committed for Commercial Advantage (18
U.S.C. §§ 2421, 2422, 2423)……………………………………………………………………………60
• For Commercial Advantage………………………………………………………………………60
(iii) Peonage/Slavery/Involuntary Servitude (18 U.S.C. §§ 1581, 1582, 1583, 1584,
1585, 1588)……………………………………………………………………………………………………60
(L)(i) Gathering/Transmitting National Defense Information (18 U.S.C. § 793);
Disclosure Classified Info (18 U.S.C. § 798); Sabotage (18 U.S.C. § 2153); or Treason
(18 U.S.C. §§ 2381, 2382)……………………………………………………………………………….60
(ii) Protecting Identity of Undercover Intelligence Agents (50 U.S.C. § 421)…………60
(iii) Protecting Identify of Undercover Agents (Nationality Security Act of 1947 §
601)………………………………………………………………………………………………………………60
(M)(i) Offense Involving Fraud or Deceit Causing Loss to Victim Over $10,000……….61
(ii) Tax Evasion Exceeding $10,000 (IRS Code of 1986 § 7201)…………………………66
(N) Alien Smuggling (8 U.S.C. § 1324; INA § 274(a) (1) (A) or (2))………………………..66
(O) Improper Entry/Reentry By Alien Previously Deported for a § 101(a)(43) Offense (8 U.S.C. §§ 1325(a) or 1326; INA §§ 275(a) or 276)………………………………………………….67
(P) Falsely Making/Forging/Counterfeiting/Mutilating/Altering Passport or Instrument (18 U.S.C. § 1543) or Document Fraud-term of imprisonment is at least 12 months (18 U.S.C. § 1546(a))………………………………………………………………………………………………..68
(Q) Failure to Appear for Service of Sentence When Underlying Offense Punishable by Five Years or More……………………………………………………………………………………………..68
(R) Commercial Bribery, Counterfeiting, Forgery or Trafficking in Vehicles the ID Numbers of Which Have Been Altered–term of imprisonment at least 1 year…………….68
• Commercial Bribery…………………………………………………………………………………68
• Counterfeiting…………………………………………………………………………………………68
• Forgery…………………………………………………………………………………………………..69
• Trafficking in Vehicles with Altered ID Numbers……………………………………….69
(S) Obstruction of Justice/Perjury or Subornation of Perjury/Bribery of Witness–term of imprisonment at least one year……………………………………………………………………………..70
• Obstruction of Justice………………………………………………………………………………70
• Perjury……………………………………………………………………………………………………71
(T) Failure to Appear After Court Order to Answer Felony Charge–for which term of 2 years or more may be imposed……………………………………………………………………………..71
(U) Attempt or Conspiracy to Commit Any of the Above Offenses…………………………..71

Immigration and Nationality Act § 101(a)(43)

(A) Murder, Rape, or Sexual Abuse of a Minor

• Murder

Note: There is little precedent on what constitutes murder under section 101(a)(43)(A) of the Act. However, existing case law has noted the importance of whether a state statute designates a crime as murder.

Seale v. INS, 323 F.3d 150 (1st Cir. 2003) – Assault with intent to murder under Massachusetts law is an AF. Expanded definition of AF under IIRIRA eliminated any temporary limitations on convictions criminal alien was still removable for pre-IIRIRA conviction.

Lettman v. Reno, 207 F.3d 1368 (11th Cir. 2000) – Third degree murder under FLA. STAT. § 782.04(4) constitutes an AF. The court found that intent to kill was not required, but that a person need only intend to commit/perpetrate a felony, with death resulting during the commission of the felony.

• Rape

Definition: (1) “At common law, unlawful sexual intercourse committed by a man with a woman not his wife through force and against her will” and (2) “unlawful sexual activity (esp. intercourse) with a person (usually female) without consent and usually by force or threat of injury.” Sexual activity (see sexual relations): “(1) Sexual intercourse (2) Physical sexual activity that does not necessarily culminate in intercourse. Sexual relations usu[ally] involve the touching of another’s breast, vagina or penis, or anus. Both persons (the person touching and the person being touched) engage in sexual relations.” Black’s Law, (8th ed. 2004).

Matter of B-, 21 I&N Dec. 287 (BIA 1996) – Second degree rape under Maryland Code, Article 21, § 463(a)(3) (person engages in vaginal intercourse with person under 14 years old, and person performing act is 4 years older than victim) for which a criminal alien was sentenced to 10 years in prison, is a COV under 18 U.S.C. § 16(b).

Silva v. Gonzales, 455 F.3d 26 (1st Cir. 2006) – “Rape and Abuse of a Child” under MASS. GEN. LAWS ch 265, § 23 is an AF. All rape, including statutory rape, is an AF under the explicit language of the INA.

United States v. Rodriguez-Guzman, 506 F.3d 738 (9th Cir. 2007) – Although the provision for unlawful sexual intercourse with a minor under CAL. PENAL CODE § 261.5(c) qualifies as a per se COV, it is overly inclusive since it sets the age of consent at 18, which exceeds the common and accepted definition of statutory rape—setting the age of consent at 16—so it cannot be categorically applied to enhance a sentence. Under the modified categorical approach, the record was insufficient to establish that criminal alien’s conviction satisfied the U.S.S.G.’s definition of statutory rape, which sets the age of consent at 16.

United States v. Yanez-Saucedo, 295 F.3d 991 (9th Cir. 2002) – Third degree rape under WASHINGTON REV. CODE § 9A.44.060 constitutes an AF even though the statute does not require the use of force. The court relied on the definition of rape in Black’s Law Dictionary.

Castro-Baez v. Reno, 217 F.3d 1057 (9th Cir. 2000) – Rape under CAL. PENAL CODE § 261 (sexual intercourse where the respondent should have known victim’s ability to resist was substantially impaired by drugs or alcohol) is an AF. The court relied on the definition of rape in Black’s Law Dictionary.

• Sexual Abuse of a Minor

Matter of Small, 23 I&N Dec. 448 (BIA 2002) – Misdemeanor offense of sexual abuse of a minor constitutes an AF. See also United States v. Gonzales-Vela, 276 F.3d 763 (6th Cir. 2001) (same under Kentucky law); Guerrero-Perez v. Ashcroft, 242 F.3d 727 (7th Cir. 2001) (same under Illinois law).

Matter of Rodriguez-Rodriguez, 22 I&N Dec. 991 (BIA 1999) – Indecency with a child by exposure pursuant to TEX. PENAL CODE § 21.11(a)(2) constitutes sexual abuse of a minor and is therefore an AF.

United States v. Londono-Quintero, 289 F.3d 147 (1st Cir. 2002) – Lewd and lascivious assault on a child under FLA. STAT. § 800.04 is sexual assault and sexual abuse of a minor and is, therefore, an AF.

Ganzhi v. Holder, ___ F.3d ___, 2010 WL 3465604 (2d Cir. 2010) – N.Y. PENAL LAW § 130.20(1) criminalizing sexual misconduct – sexual intercourse with another without that person’s consent – is divisible because it does not require that the victim be a minor. Review of the criminal alien’s record of conviction showed that the victim was unable to consent because of her age and, therefore, the alien had been convicted of an AF of sexual abuse of a minor.

Mugalli v. Ashcroft, 258 F.3d 52 (2d Cir. 2001) – The New York equivalent of statutory rape, N.Y. PENAL LAW § 130.25, constitutes sexual abuse of a minor. The court cites with favor the BIA’s analysis of sexual abuse in Matter of Rodriguez-Rodriguez, 22 I&N Dec. 991 (BIA 1999). Note: The Second Circuit has noted that the BIA was seeking a definition which captured a “broad . . . spectrum of sexually abusive behavior” against minors.

Restrepo v. U.S. Attorney Gen., 617 F.3d 787 (3d Cir. 2010) – Alien’s conviction for “aggravated sexual contact” under New Jersey Statute 2C:14-3(a) is categorically an AF for sexual abuse of a minor, as defined under 18 U.S.C. § 3509(a)(8), which provides that “the term ‘sexual abuse’ includes the employment, use, persuasion, inducement, enticement, or coercion of a child to engage in … sexually explicit conduct [.]”

Stubbs v. Attorney Gen., 452 F.3d 251 (3d Cir. 2006) – Conviction for endangering the welfare of children under N.J. STAT. ANN. § 2C:24-4 is not sexual abuse of a minor under INA § 101(a)(43)(A), and therefore, the criminal alien did not commit an AF.

Singh v. Ashcroft, 383 F.3d 144 (3d Cir. 2004) – Third degree unlawful sexual contact under Delaware law is not divisible and is not categorically an AF because the age of the victim is not specified as an element of the crime.

United States v. Diaz-Ibarra, 522 F.3d 343 (4th Cir. 2008) – Conviction under former GA. CODE ANN. § 16-6-4 (1992) for felony attempted child molestation is categorically “sexual abuse of a minor.”

United States v. Castro-Guevarra, 575 F.3d 550 (5th Cir. 2009) – Consensual sexual intercourse with a child, defined as a person younger than the age of 17 under TEX. PENAL CODE ANN. §§ 22.011(a)(2)(A) and (c)(1) is sexual abuse of a minor.

United States v. Ayala, 542 F.3d 494 (5th Cir. 2008) – Indecency with a child under TEX. PENAL CODE ANN. § 21.11(a)(1) is classified as sexual abuse of a minor. The defendant argued that the term “minor” is inconsistent with the contemporary and ordinary meaning of “child.” The court stated that a child younger than seventeen is clearly a minor and pointed out that it already addressed this issue in United States v. Zavala-Sustaita, 214 F.3d 601 (5th Cir. 2000).

United States v. Balderas-Rubio, 499 F.3d 470 (5th Cir. 2007) – Balderas-Rubio argued that his conviction for “Indecency or Lewd Acts with a Child Under the Age of Sixteen” under OKLA. STAT., tit. 21, § 1123(A)(4) fell outside the generic definition of sexual abuse of a minor because it could include the act of “merely lewdly or lasciviously looks upon a minor from afar, without the minor’s knowledge.” However, he failed to show a realistic probability that Oklahoma would in fact prosecute such an act. Thus, the court rejected his argument that the statute is overly broad and held that his conviction constituted “sexual abuse of a minor” as a matter of law.

United States v. Ramos-Sanchez, 483 F.3d 400 (5th Cir. 2007) – Soliciting or enticing a minor to perform an illegal sex act pursuant to KAN. STAT. ANN. § 21-3510(a)(1) constitutes sexual abuse of a minor because the elements of the offense constitute “sexual abuse of a minor” as the term is understood by its ordinary, contemporary, and common meaning.

United States v. Izaguirre-Flores, 405 F.3d 270 (5th Cir. 2005) – Taking indecent liberties with a child pursuant to N.C. GEN. STAT. § 14-202.1(a)(1) constitutes sexual abuse of a minor for purposes of sentencing enhancement because basic language and common sense indicate that the term “sexual abuse of a minor” would include indecent liberties with a child.

United States v. Zavala-Sustaita, 214 F.3d 601 (5th Cir. 2000) – Sexual indecency with a child by exposure under TEX. PENAL CODE ANN. § 21.11(a)(2) constitutes sexual abuse of a minor.

Uritsky v. Gonzales, 399 F.3d 728 (6th Cir. 2005) – Third degree criminal sexual conduct under MICH. COMP. LAWS § 750.520d(1)(a) is an AF; adjudication as a “youthful trainee” is a conviction under § 101(a)(48) because the criminal action is not vacated until probation is completed. But see Matter of Devison-Charles, 22 I&N Dec. 1362 (BIA 2000) (adjudication as a youthful offender under NY law is not a conviction because it does not involve a finding of guilt or innocence and cannot ripen into a conviction).

Sharashidze v. Gonzales, 480 F.3d 566 (7th Cir. 2007) – Indecent solicitation of a sex act pursuant to Illinois Statute, Title 720, § 5/11-14.1(a) constitutes sexual abuse of a minor.

Hernandez-Alvarez v. Gonzales, 432 F.3d 763 (7th Cir. 2005) – Indecent solicitation of a child in contravention of 720 ILL. COMP. STAT. 5/11-6(a) is an AF (sexual abuse of a minor), despite the impossibility of completing the offense as the crime involved an adult investigator posing as a child on the internet.

Gattem v. Gonzales, 412 F.3d 758 (7th Cir. 2005) – Solicitation of a sexual act under 720 ILL. COMP. STAT. 5/11-14.1(a) is sexual abuse of a minor.

Espinoza-Franco v. Ashcroft, 394 F.3d 461 (7th Cir. 2005) – A conviction under 720 ILL. COMP. STAT. 5/12-16(b), a statute that criminalizes an act of sexual conduct on family member younger than 18, and defined sexual conduct to include touching of any part of victim’s body for purposes of sexual gratification or arousal if victim was under the age of 13, constitutes sexual abuse of a minor. Note: Case superseded by statute on other grounds.

Guerrero-Perez v. INS, 242 F.3d 727 (7th Cir. 2001) – Misdemeanor criminal sexual abuse is an AF. Therefore, criminal alien’s conviction for criminal sexual abuse under 720 ILL. COMP. STAT. 5/12-15(c) – sexual penetration of a victim over 13 years but under 17 years of age when the perpetrator is less than 5 years older than the victim.

Lovan v. Holder, 574 F.3d 990 (8th Cir. 2009) – Retroactively applying the amended definition of AF to a pre-IIRIRA conviction for sexual abuse of a minor does not violate an alien’s due process right.

Rivera-Cuartas v. Holder, 605 F.3d 699 (9th Cir. 2010) – A conviction under ARIZ. REV. STAT. ANN. § 13-1405, which criminalizes sexual conduct with a minor under 18, is not an AF of “sexual abuse of a minor” because the statute does not contain an element relating to an age difference requirement, applies to defendants under 18, and lacks an element of abuse.

United States v. Valencia-Barragan, 608 F.3d 1103 (9th Cir. 2010) – A conviction for rape of a child in the second degree under WASH. REV. CODE § 9A.44076(1) is categorically an AF for sexual abuse of a minor under INA § 101(a)(43)(A) for purposes of the U.S.S.G.

Ledezma-Galicia v. Holder , 599 F.3d 1055 (9th Cir. 2010) – Neither IMMAct nor IIRIRA repealed the ADAA’s temporal limitation that its terms would apply only to those convictions occurring on or after its 1988 passage. Because the ADAA did not include “sexual abuse of a minor” as an enumerated AF offense and the alien was convicted of sodomy and sexually molesting a minor before the enactment of all three acts, the alien was not removable for his offense. But see Matter of Lettman, 22 I&N Dec. 365 (BIA 1998)(finding that the temporal limitation of the ADAA was repealed).

Pelayo-Garcia v. Holder , 589 F.3d 1010 (9th Cir. 2009) – Unlawful sexual intercourse with a minor under CAL. PENAL CODE § 261.5(d) is not categorically an AF because it contains no scienter requirement and “criminalizes sexual conduct that is not necessarily abusive.”

United States v. Medina-Villa, 567 F.3d 507 (9th Cir. 2009) – Lewd and lascivious act on a child under 14 under CAL. PENAL CODE § 288(a) constitutes sexual abuse of a minor.

Nicanor-Romero v. Mukasey, 523 F.3d 992 (9th Cir. 2008) – Court reaffirmed the conclusion of United States v. Pallares-Galan, 359 F.3d 1088, 1102-03 (9th Cir. 2004) that a conviction under California law for “annoying or molesting a child under age 18” is not categorically an AF as defined in INA § 101(a)(43)(A) for sexual abuse of a minor. Note: Overruled on other grounds by Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir. 2009).

Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008) – Four statutory rape statutes— CAL. PENAL CODE §§ 261.5(c), 286(b)(1), 288a(b)(1), and 289(h)—are not AF. The federal crime of “sexual abuse of a minor” under 18 U.S.C. § 2243 requires: “(1) a mens rea level of knowingly; (2) a sexual act; (3) with a minor between the ages of 12 and 16; and (4) an age difference of at least four years between the defendant and the minor.” Overrules Estrada-Espinoza v. Gonzalez, 498 F.3d 933 (9th Cir. 2007).

Rebilas v. Mukasey, 527 F.3d 783 (9th Cir. 2008) – An offense of attempted public sexual indecency to a minor under ARIZ. REV. STAT. ANN. §§ 13-1001 and 13-1403(B) did not constitute sexual abuse of a minor, and thus was not an AF; offense did not categorically fall within federal generic definition of sexual abuse of minor because the Arizona statute did not require child to be touched or aware of offender’s conduct. Neither the judgment of conviction nor plea agreement contained factual basis for crime.

United States v. Baza-Martinez, 464 F.3d 1010 (9th Cir. 2006) – A conviction for taking indecent liberties with a child pursuant to N.C. GEN. STAT. § 14-202.1 does not constitute sexual abuse of a minor. Ninth Circuit acknowledged this decision creates a circuit court conflict with Fifth and Eleventh Circuits. See Izaguirre-Flores, 405 F.3d 270 (5th Cir. 2005) and Bahar, 264 F.3d 1309 (11th Cir. 2001).

Parrilla v. Gonzales, 414 F.3d 1038 (9th Cir. 2005) – A conviction for communicating with a minor for immoral purposes under WASH. REV. CODE § 9.68A 090 is not categorically sexual abuse of a minor because some of the “immoral purposes,” as determined by state courts, do not involve inducement of a child to engage in sexual conduct. Under a modified categorical approach using the information and guilty plea, the criminal alien was found to have been convicted of molesting a 7-year-old girl by touching her between the legs.

United States v. Alvarez-Gutierrez, 394 F.3d 1241 (9th Cir. 2005) – A conviction for violating NEV. REV. STAT. §§ 200.364 and 200.368 for statutory sexual seduction, a gross misdemeanor for which punishment is imprisonment up to one year, is an AF for sentence enhancement purposes.

United States v. Pallares-Galan, 359 F.3d 1088 (9th Cir. 2004) – Annoying or molesting a child under 18 years old in violation of CAL. PENAL CODE § 647.6(a) is not to be sexual abuse of a minor nor an AF as the statute includes conduct that is not sexual abuse (words alone can constitute a violation of the statute). Affirmed by Nicanor-Romero v. Mukasey, 523 F.3d 992 (9th Cir. 2008).

Cedano-Viera v. Ashcroft, 324 F.3d 1062 (9th Cir. 2003) – A conviction under NEV. REV. STAT. § 201.230 for lewdness with a child under 14 years old was found to be sexual abuse of a minor and an AF. The court relied on its reasoning in United States v. Baron-Medina, 187 F.3d 1144 (9th Cir. 1999), in which the court explained that “[t]he use of young children as objects of sexual gratification is corrupt, improper, and contrary to good order. It constitutes maltreatment, no matter its form.” Id. at 1066.

Lualhati v. INS, 217 F.3d 845 (9th Cir. 2000) – California lewd and lascivious acts and one count of unlawful sexual penetration with a minor are AFs.

Vargas v. DHS, 451 F.3d 1105 (10th Cir. 2006) – Contributing to the delinquency of a minor under COLO. REV. STAT. § 18-6-701 was found to be sexual abuse of minor in this case. The court found that delinquency of a minor does not categorically include sexual abuse of a minor, so court looked at the charging document, which referenced COLO. REV. STAT. § 18-3-404(1)(a), titled Unlawful Sexual Contact. The court concluded that Vargas was charged and convicted of encouraging a child to engage in non-consensual sexual contact, which is sexual abuse of a minor, an AF.

Chuang v. Attorney Gen., 382 F.3d 1299 (11th Cir. 2004) – Indecent assault on a child under 16 in violation of FLA STAT. ANN. § 800.04 was found to be a sexual abuse of a minor and therefore an AF.

United States v. Padilla-Reyes, 247 F.3d 1158 (11th Cir. 2001) – Sexual abuse of a minor means a perpetrator’s physical or nonphysical misuse or maltreatment of a minor for a purpose associated with sexual gratification. The court’s decision cites Zavala-Sustaita, 214 F.3d 601 (5th Cir. 2000) with approval. See also Bahar v. Ashcroft, 264 F.3d 1309 (11th Cir. 2001).

Bahar v. Ashcroft, 264 F.3d 1309 (11th Cir. 2001) – Taking indecent liberties with a child under North Carolina law was an AF (no actual contact with the child required by the statute).

(B) Illicit Trafficking in Controlled Substance (as defined in § 102 of the Controlled Substances Act), Including a Drug Trafficking Crime (as defined in 18 U.S.C. § 924(c))

See Particularly Serious Crime (Matter of Y-L-, 23 I&N Dec. 270 (BIA 2002)).

Carachuri-Rosendo v. Holder, 130 S.Ct. 2577 (2010) – The Supreme Court reversed the Fifth Circuit, holding that “second or subsequent simple possession offenses are not aggravated felonies under §1101(a)(43) when, as in this case, the state conviction is not based on the fact of a prior conviction.” In its holding, the Court affirmed that recidivism must be found at the state level. Overrules Carachuri-Rosendo v. Holder, 570 F.3d 263 (5th Cir. 2009) (repeat conviction is deemed as an AF whether or not recidivism was admitted or determined by a judge or jury); Matter of Carachuri-Rosendo, 24 I&N Dec. 382 (BIA 2007) (alien’s status as a recidivist drug offender must be either admitted by the alien or determined by a judge or jury).

Lopez v. Gonzales, 549 U.S. 47 (2006) – A state drug offense is a “felony punishable under the Controlled Substances Act”, and thus, an AF, “only if it proscribes conduct punishable as a felony under that federal law.”

Matter of Sanchez-Cornejo , 25 I&N Dec. 273 (BIA 2010) – Delivery of a simulated controlled substance under Texas law is not an AF under INA § 101(a)(43)(B) because simulated cocaine, the simulated controlled substance the respondent trafficked, is not a federally-controlled substance and because the respondent’s offense would not have been punishable under the CSA.

Matter of Aruna, 24 I&N Dec. 452 (BIA 2008) – Absent controlling precedent to the contrary, a state law misdemeanor offense of conspiracy to distribute marijuana qualifies as an AF under INA § 101(a)(43)(B) where its elements correspond to the elements of the federal felony offense of conspiracy to distribute an indeterminate quantity of marijuana, as defined by 21 U.S.C. §§ 841(a)(1), (b)(1)(D), and 846.

Matter of Thomas, 24 I&N Dec. 416 (BIA 2007) – Conviction for simple possession of marijuana under FLA. STAT. ANN. § 893.13(6)(b) did not qualify as an AF by virtue of being recidivist possession, even though it was committed after a prior drug conviction, because the conviction for the later offense did not arise from a state proceeding in which his status as a recidivist drug offender was either admitted or determined by a judge or jury.

Matter of Roberts, 20 I&N Dec. 294 (BIA 1991) – A sole conviction for the felony sale of a controlled substance makes respondent a drug trafficker, and as such, an AF.

Julce v. Mukasey, 530 F.3d 30 (1st Cir. 2008) – A conviction for possession with intent to distribute marijuana under MASSS GEN. LAWS ch. 94C, § 32C(a) is an AF under INA § 101(a)(43)(B) as a drug trafficking crime, unless the defendant meets his burden to show that the offense should be reduced to a misdemeanor under federal law.

Behre v. Gonzales, 464 F.3d 74 (1st Cir. 2006) – For purposes of determining whether a state drug offense was an AF under the INA, circuit precedent permitted an analysis that considered whether the underlying offense would have been punishable as a felony under federal law.

Urena-Ramirez v. Ashcroft, 341 F.3d 51 (1st Cir. 2003) – Court held that a person convicted under Travel Act (18 U.S.C. § 1952(a)(3)) for promoting an unlawful activity involving a controlled substance has been convicted of a violation of law relating to a controlled substance under the Act and has therefore committed an AF.

Alsol v. Mukasey, 548 F.3d 207 (2d Cir. 2008) – A second conviction for simple controlled substance possession under the New York state law is not an AF under the CSA. The offense does not proscribe conduct punishable as a felony because it does not correspond in any meaningful way with the federal crime of recidivist possession, even if it could have been prosecuted in the state court as a recidivist offense. See also United States v. Ayon-Robles, 557 F.3d 110 (2d Cir. 2009) (holding that a second offense of simple possession of a controlled substance is not a felony punishable under the CSA, and is therefore, not an AF conviction justifying an enhanced sentence).

Martinez v. Mukasey, 551 F.3d 113 (2d Cir. 2008) – A conviction under N.Y. PENAL LAW § 221.40 (criminal sale, including distribution, of a small amount of marijuana) is not an AF. The Second Circuit applied the categorical approach and looked at the necessary elements of the petitioner’s state conviction. The court found that the minimum conduct for which the petitioner was convicted was not an AF.

Gousse v. Ashcroft, 339 F.3d 91 (2d Cir. 2003) – Alien’s Connecticut conviction for sale of a hallucinogen/narcotic in contravention of § 21a-277(a) is a conviction for illegal trafficking in a controlled substance, and an AF. Applying the categorical approach, the court decided that the Connecticut definition of “narcotic substance” is not broader than the federal definition of “controlled substance.”

Khan v. Ashcroft, 352 F.3d 521 (2d Cir. 2003) – Using a telephone to facilitate the distribution of heroin under New York law was found to be an AF.

Aguirre v. INS, 79 F.3d 315 (2d Cir. 1996) – A crime is not an AF unless the state drug offense would have been a felony under federal law (hypothetical federal felony analysis).

Thomas v. Attorney Gen., — F.3d —, 2010 WL 4188242 (3d Cir. 2010) – Conviction of Fourth Degree Criminal Sale of Marijuana in violation of N.Y. PENAL LAW § 221.40 does not constitute a drug trafficking crime because state law classifies it as a misdemeanor. A conviction in violation of N.Y. PENAL LAW § 221.40 is not categorically a drug trafficking crime under the hypothetical felony route because the statute is divisible.

Catwell v. Attorney Gen., — F.3d —, 2010 WL 3987664 (3d Cir. 2010) – Pennsylvania conviction of Possession with Intent to Distribute in violation of 35 PA. CONS. STAT. § 780-113(a)(30) is not categorically an AF. Applying the modified categorical approach, the conviction in this case was an AF. The conviction record established intent to distribute, and a conviction for possessing 120.5 grams of marijuana was not a small amount subject to the exception in 21 U.S.C. § 841(b)(4).

Evanson v. Attorney Gen., 550 F.3d 284 (3d Cir. 2008) – The IJ held that possession of marijuana with intent to deliver (35 PA. CONS. STAT. § 780-113(a)(30)) and criminal conspiracy (18 PA. CONS. STAT. § 903) in violation of Pennsylvania law was an AF. The BIA reversed. The Third Circuit held that the BIA erred in failing to properly apply the modified categorical approach and therefore erred in considering the sentencing document. The court remanded to the BIA to determine whether the petitioner’s conviction was an AF.

Jeune v. Attorney Gen., 476 F.3d 199 (3d Cir. 2007) – Pennsylvania offense of “manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance” pursuant to 35 PA. CONS. STAT. § 780-113(a)(30) is not categorically an AF. Because the alien’s conviction record did not indicate whether the offense had a “trafficking element,” the government could not establish that he had been convicted of an AF.

Garcia v. Attorney Gen., 462 F.3d 287 (3d Cir. 2006) – The alien’s conviction pursuant to 35 PA. CONS. STAT. § 780-113(a)(30) is an AF because the record of conviction made clear that the offense contained a trafficking element because the alien pled guilty to delivery and possession with intent to deliver.

Gerbier v. Holmes, 280 F.3d 297 (3d Cir. 2002) – A conviction for trafficking cocaine under Delaware law, where factual basis for the plea was mere possession, does not constitute an AF. The crime must contain a trafficking element or be punished as a felony under federal law. Applies hypothetical felony theory from Matter of Davis, 20 I&N Dec. 536 (BIA 1992).

Steele v. Blackman, 236 F.3d 130 (3d Cir. 2001) – An alien’s second N.Y. misdemeanor conviction for distribution of 30 grams or less of marijuana without remuneration did not pass hypothetical federal felony test and was therefore not an AF.

United States v. Matamoros-Modesta, 523 F.3d 260 (4th Cir. 2008) – Conviction for simple possession is not an AF, even if labeled a felony by the convicting state. Court recognized that Lopez v. Gonzales, 549 U.S. 47 (2006) overruled prior circuit precedent.

United States v. Amaya-Portillo, 423 F.3d 427 (4th Cir. 2005) – Maryland misdemeanor conviction for cocaine possession is not an AF for sentence enhancement purposes because the offense is not classified as a felony by federal or state law.

Davila v. Holder, 381 F.App’x 413 (5th Cir. 2010) (unpublished): Conviction for selling cocaine in violation of N.Y. Penal Law § 220.41 is not a felony under the CSA and therefore is not categorically a drug trafficking crime because a conviction could result from a mere offer to sell cocaine.

United States v. Andrade-Aguilar, 570 F.3d 213 (5th Cir. 2009) – A second conviction for simple possession of a controlled substance does not qualify as an AF when the first conviction for simple possession was not “final” at the time the second offense occurred. A conviction is final when it is no longer subject to examination on direct appeal and is not subject to discretionary review by any court.

Vasques-Martinez v. Holder, 564 F.3d 712 (5th Cir. 2009) – A conviction under the TEX. HEALTH & SAFETY CODE ANN. § 481.112(a) for intentionally and knowingly possessing, with intent to deliver, a controlled substance, namely cocaine in, on, and within 1,000 feet of a school is an AF. AF includes a “drug trafficking crime,” which is defined as any felony punishable under the CSA. The CSA defines “felony” as any “federal or state offense classified by applicable federal or state law as a felony.” Relying on United States v. Ford, 509 F.3d 714 (5th Cir. 2007), the court found that a conviction for possession with intent to deliver under the TEX. HEALTH & SAFETY CODE ANN. § 481.112(a) constitutes a controlled substance offense—a felony under the CSA.

United States v. Pillado-Chaparro, 543 F.3d 202 (5th Cir. 2008) – 21 U.S.C. § 843(b), federal offense of using a telephone to facilitate a conspiracy to distribute marijuana and/or cocaine, is a controlled substance offense. The issue before the Fifth Circuit was whether the defendant’s offense was properly classified as a drug trafficking offense, and therefore, a controlled substance offense. This was a case of first impression for the Fifth Circuit; it relied on guidance from the Eleventh Circuit, United States v. Orihuela, 320 F.3d 1302 (11th Cir. 2003). In Orihuela, the court compared the definitions of “controlled substance offense” and “drug trafficking offense,” which are interchangeable because the language in both definitions is essentially the same. The Fifth Circuit wholly agreed with the Eleventh Circuit’s holding and reasoned that precedent interpreting “controlled substance offense” is analogous and applicable to the definition “drug trafficking offence.” Because prior precedent recognized telephone facilitation offenses as controlled substance offenses, therefore, telephone facilitation offenses are also drug trafficking offenses.

United States v. Fuentes-Oyervides, 541 F.3d 286 (5th Cir. 2008) – OHIO’S REV. CODE ANN. § 2925.03(A)(2) constitutes a drug trafficking offense. When an offender prepares drugs for shipment, he knows or has reason to know that the drugs are intended for the sale or distribution by another. Preparation for shipment cannot simply involve the possessory act of one person moving his own drugs. Therefore, the Ohio statute meets the “possession with intent” clause of the “drug trafficking offense.” In addition, an individual who prepares for shipment, ships, transports, delivers, prepares for distribution a controlled substance, while he knows or should know that the substance is intended for sale, commits an act of distribution—conduct included in the definition of the “drug trafficking offense.”

United States v. Garcia-Arellano, 522 F.3d 477 (5th Cir. 2008) – A written judicial confession constitutes a “comparable judicial record” under Shepard v. United States, 544 U.S. 13 (2005) so that it may be considered in determining whether a defendant’s prior conviction is a drug trafficking offense.

United States v. Cepeda-Rios, 530 F.3d 333 (5th Cir. 2008) – The Supreme Court’s decision in Lopez v. Gonzales, 549 U.S. 47 (2006) does not require the Fifth Circuit to abandon its holding in United States v. Sanchez-Villalobos, 412 F.3d 572 (5th Cir. 2005) that a second conviction for simple possession qualifies as an AF.

United States v. Price, 516 F.3d 285 (5th Cir. 2008): Defendant’s conviction for delivery of a controlled substance in violation of TEX. HEALTH & SAFETY CODE ANN. § 481.112(a) was not a “controlled substance offense” for purposes of the USSG because the defendant could have been convicted merely for an offer to sell. The Court noted that the definition of a controlled substance offense was almost identical to the definition of a drug trafficking offense and then relied on cases determining whether convictions constitute a drug trafficking offense.

United States v. Estrada-Mendoza, 475 F.3d 258 (5th Cir. 2007) – Mere possession of a controlled substance is not an AF, regardless of how it is classified under state law. Approach of circuit in United States v. Hinojosa-Lopez, 130 F.3d 691 (5th Cir. 1997) acknowledged as rejected by Lopez v. Gonzales, 549 U.S. 47 (2006).

Smith v. Gonzales, 468 F.3d 272 (5th Cir. 2006) – A judgment is not final within the meaning of the CSA until the time for seeking discretionary review of the conviction has elapsed. In this case, the respondent would be punishable as a felon under the CSA only through that Act’s recidivist sentencing provision. Because the March 2004 offense that “qualified” the petitioner as a recidivist and thus enabled him to be punished as a felon had not become “final”, it could not be used and thus the recidivist provision was not applicable.

Rashid v. Mukasey, 531 F.3d 438 (6th Cir. 2008) – A state drug offense constitutes an AF under INA § 101(a)(43)(B) by virtue of its correspondence to the federal felony offense of “recidivist possession” under 21 U.S.C. § 844(a) only if the individual has been convicted under a state’s recidivism statute and that the elements of that offense included a prior drug-possession conviction that had become final at the time of the commission of the second offense.

United States v. Pacheco-Diaz (Pacheco-Diaz I), 506 F.3d 545 (7th Cir. 2007) – Because defendant was convicted of a prior drug possession offense, his subsequent Illinois conviction for possession of marijuana in violation of 720 ILL. COMP. STAT. § 550/4 could have been punished as a recidivist offense under federal law with a penalty of up to two years imprisonment, making it an AF had the charge been brought in federal court; thus, defendant’s conviction for possession of marijuana was an AF.

United States v. Pacheco-Diaz (Pacheco-Diaz II), 513 F.3d 776 (7th Cir. 2007) – Seventh Circuit denied alien’s petition for rehearing, affirmed its decision in Pacheco-Diaz I, and expressed disagreement with the Board’s approach in Matter of Carachuri-Rosendo, 24 I&N Dec. 382 (BIA 2007), instead endorsing the concurring opinion of Board Member Pauley in that decision.

Gonzalez-Gomez v. Achim, 441 F.3d 532 (7th Cir. 2006) – Illinois state felony conviction for possession of a small amount of cocaine was found not to be an AF because the crime would be a misdemeanor under the Federal CSA.

Tostado v. Carlson, 481 F.3d 1012 (8th Cir. 2007) – Alien’s convictions for possession of cocaine and possession of cannabis under Illinois law are not aggravated felonies because each offense would be punishable as a misdemeanor under the CSA.

Lopez-Jacuinde v. Holder, 600 F.3d 1215 (9th Cir. 2010) – A conviction for possession of pseudoephedrine with intent to manufacture methamphetamine in violation of the CAL. HEALTH AND SAFETY Code § 11383(c)(1) was categorically an AF. The use of a firearm is not a necessary element of a “drug trafficking crime” under 18 U.S.C. § 924(c) and the quantity requirement in the record-keeping provision does not relate to the criminal provisions.

Daas v. Holder, 620 F.3d 1050 (9th Cir. 2010) – An alien’s conviction for distributing ephedrine and pseudoephedrine, which are List 1 chemicals used in the manufacturing of controlled substances but are not considered “controlled substances” under 21 U.S.C. § 802, with reasonable cause to believe the chemicals would be used to manufacture methamphetamine qualified as “drug trafficking crime,” and thus constituted AF for removal purposes.

Cheuk Fung S-Yong v. Holder , 600 F.3d 1028 (9th Cir. 2010) – A single conviction for possession or sale of a controlled substance under CAL. HEALTH AND SAFETY CODE § 11379 is not categorically an AF. Under a modified categorical approach, a verbal admission of a second controlled substance conviction, by itself, without entering the conviction documents into the record, is insufficient to find that the alien committed an AF. See also

Mielewczyk v. Holder, 575 F.3d 992 (9th Cir. 2009) – Offering to transport heroin in violation of CAL. HEALTH AND SAFETY CODE § 11352(a) is a violation that relates to a controlled substance.

United States v. Almazan-Becerra, 537 F.3d 1094 (9th Cir. 2008) – Conviction for transporting or selling or offering to sell marijuana in violation of CAL. HEALTH & SAFETY CODE § 11360(a) does not constitute a drug trafficking offense for sentencing purposes. The Court relied on United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir. 2000) (en banc) (superseded by statute on other grounds), holding that CAL. HEALTH & SAFETY CODE § 11360(a) is broader than the definition of a drug trafficking crime in INA § 101(a)(43)(B) because it prohibits simple transportation for use, does not depend on profit motive, and criminalizes mere solicitation.

United States v. Reveles-Espinoza, 522 F.3d 1044 (9th Cir. 2008) – Conviction under CAL. HEALTH AND SAFETY CODE §11358 for “planting, cultivating, harvesting, drying, or processing any marijuana” categorically falls within the generic definition of a drug trafficking crime and is thus an AF, even if defendant was convicted under California’s aiding and abetting theory.

Rendon v. Mukasey, 520 F.3d 967 (9th Cir. 2008) – Kansas conviction for possession of a controlled substance with intent to sell contains a trafficking element, making it an AF. Although KAN STAT. ANN. § 65-4163(a) is not categorically an AF because it criminalizes a solicitation offense, the record of conviction established that the alien had been convicted under a subsection of the statute (possession with intent to sell) that did contain a trafficking element.

United States v. Figueroa-Ocampo, 494 F.3d 1211 (9th Cir. 2007) – California offense of simple possession for personal use pursuant to CAL. HEALTH AND SAFETY CODE § 11350(a) is not an AF pursuant to Lopez v. Gonzales, 549 U.S. 47 (2006). United States v. Ibarra-Galindo, 206 F.3d 1337 (9th Cir. 2000) recognized as overruled by United States v. Lopez, 549 U.S. 47 (2006).

Sandoval-Lua v. Gonzales, 499 F.3d 1121 (9th Cir. 2007) – Controlled Substance conviction under CAL. HEALTH AND SAFETY CODE § 11379(a) is categorically broader than the definition of 101(a)(43)(B), and under the modified categorical approach, the documents in the record satisfied the alien’s burden of establishing by a preponderance of the evidence that his earlier conviction did not constitute an AF.

Salviejo-Fernandez v. Gonzales, 455 F.3d 1063 (9th Cir. 2006): Conviction for maintaining a place for selling or using controlled substances in violation of CAL. HEALTH & SAFETY CODE § 11366 is categorically an AF. Under the CSA, it is an offense to knowingly open, lease, rent, use, or maintain any place for the purpose of manufacturing, distributing, or using any controlled substance. The elements of CAL. HEALTH & SAFETY CODE § 11366 are (1) opening or maintaining a place (2) for the purpose of continuously or repeatedly using it for selling, giving away, or using a controlled substance. The Court concluded that the full range of conduct covered by § 11366 falls within 21 U.S.C. § 856(a) because § 11366 requires that the defendant act with purpose.

Ferreira v. Ashcroft, 382 F.3d 1045 (9th Cir. 2004) – Possession under CAL. HEALTH AND SAFETY CODE § 1137(a) lacks trafficking element and is not punishable under CSA and is not an AF.

United States v. Soberanes, 318 F.3d 959 (9th Cir. 2003) – A prior Arizona conviction for attempted possession of over 8 pounds of marijuana, where the offense is a state law felony, is an AF under the sentencing guidelines. Called into doubt by United States v. Figueroa-Ocampo, 494 F.3d 1211 (9th Cir. 2007).

Olivera-Garcia v. INS, 328 F.3d 1083 (9th Cir. 2003) – Generic offense of solicitation to purchase drugs under Arizona statute was not a violation of the CSA and not an AF. See also Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir. 1997) (holding that solicitation to possess cocaine not an AF); Leyva-Licea v. INS, 187 F.3d 1147 (9th Cir. 1999) (holding that solicitation to possess marijuana for sale is not an AF).

United States v. Martinez-Macias, 472 F.3d 1216 (10th Cir. 2007) – Kansas conviction for possession of cocaine is not an AF because possession is not a felony under the CSA pursuant to Lopez v. Gonzales, 549 U.S. 47 (2006). United States v. Cabrera-Sosa, 81 F.3d 998 (10th Cir. 1996) and progeny abrogated.

Batrez-Gradiz v. Gonzales, 490 F.3d 1206 (10th Cir. 2007) – The offense of manufacturing, delivering, or possessing with the intent to manufacture or deliver a controlled substance, in violation of WYO. STAT. ANN. § 35-7-1031(a) is an AF because each chargeable offense would be a felony under the CSA.

Gonzalez-Gonzalez v. Weber, 472 F.3d 1198 (10th Cir. 2006) – Colorado offense of simple possession of cocaine is not an AF because possession is not a felony under the CSA pursuant to Lopez v. Gonzales, 549 U.S. 47 (2006).

United States v. Madera-Madera, 333 F.3d 1228 (11th Cir. 2003) – Under sentencing guidelines, a prior Georgia state conviction under GA. CODE ANN. § 16-13-31(e) for trafficking-by-possessing more than 28 grams of methamphetamine constitutes a drug trafficking offense and an AF. The court found that the intent to distribute was inferred from the quantity of drugs possessed. See United States v. Orihuela, 320 F.3d 1302 (11th Cir. 2003) (holding that a conviction for telephone facilitation can constitute drug trafficking offense where underlying drug offense is a felony and sentence imposed for the facilitation crime exceeded 13 months).

(C) Illicit Trafficking in Firearms/Destructive Devices (18 U.S.C. § 921) or Explosive Materials (18 U.S.C. §841(c))

Kuhali v. Reno, 266 F.3d 93 (2d Cir. 2001) – Under 8 U.S.C. § 1227(a)(2)(C); § 237 (a)(2)(C), a conviction for conspiracy to export firearms and ammunition under 18 U.S.C. § 2778 inherently requires possession of firearms and qualifies as a firearm offense. The petitioner was therefore convicted of an AF. The court further held that the BIA has reasonably construed § 101(a)(43)(C) to include all firearms offenses that exhibits a business or merchant nature.

Joseph v. Attorney Gen., 465 F.3d 123 (3d Cir. 2006) – Applying the categorical approach, the court held that a conviction under 18 U.S.C. § 922(a)(3) is not an AF under the INA because § 922(a)(3) does not include a “trafficking element.”

(D) Laundering Monetary Instruments (18 U.S.C. § 1956) or Monetary Transactions over $10,000 in Property Derived from Unlawful Activities (18 U.S.C. § 1957)

• Laundering Monetary Instruments (18 U.S.C. § 1956)

Discussion: For purposes of 101(a)(43)(D), the amount of money laundered must exceed $10,000 to be an AF. The monetary loss to victim or the amount of restitution is not considered under this section. Loss to the victim is however considered for purposes of 101(a)(43)(M). See Chowdhury v. INS, 249 F.3d 970 (9th Cir. 2001).

Note: Determining the amount of money laundered: Circuit case law has not outrightly prohibited reliance on the PSR, but the narrative statement in the PSR cannot be used to determine if petitioner was convicted of a crime. See Dickson v. Ashcroft, 346 F.3d 44 (2d Cir. 2003). Also, statements in PSR cannot contradict explicit language in alien’s plea agreement. See Chang v. INS, 307 F.3d 1185 (9th Cir. 2002). The BIA may not look to the PSR for proof of specific facts regarding the underlying conviction; the PSR can only be used as evidence of the existence of the underlying conviction. Conteh v. Gonzales, 346 F.3d 45 (1st Cir. 2006).

(E) Explosive Materials Offenses (18 U.S.C. §§ 842(h)-(i), 844(d)-(i)), Firearms Offenses (18 U.S.C. §§ 922(g)(1)-(5), (j), (n)-(p), (r) and 924(b), (h)), or Firearms Offenses (IRS Code § 5861 (1986))

Matter of Luviano-Rodriguez, 23 I&N Dec. 718 (A.G. 2005) – Conviction for a firearms offense violation that has been expunged pursuant to CAL. PENAL CODE § 1203.4 is a conviction for immigration purposes. Matter of Luviano, 21 I&N Dec. 235 (BIA 1996) reversed; Matter of Marroquin, 23 I&N Dec. 705 (A.G. 2005) followed.

Matter of Mendez-Orellana , 25 I&N Dec. 254 (BIA 2010) – In the context of determining removability under INA § 237(a)(2)(C) (firearm offense), the Board held that the DHS has met its burden where it presents evidence that an alien has been convicted of an offense involving a firearm. The burden then shifts to the respondent to show that the weapon was antique and, therefore, not a “firearm” under 18 U.S.C. § 921(a)(3) because it falls under the antique firearm exception.

Matter of Vasquez-Muniz, 23 I&N Dec. 207 (BIA 2002): Possession of a firearm by a felon in violation of CAL. PENAL CODE § 12021(a)(l) is an AF because it is described in 18 U.S.C. § 922(g)(l). Specifically, the BIA held that an offense defined by state or foreign law may be an AF as “described in” a federal statute enumerated in section 101(a)(43) of the INA, even if it lacks the jurisdictional element of the federal statute. Overruling Matter of Vasquez-Muniz, 22 I&N Dec. 1415 (BIA 2000).

Nieto-Hernandez v. Holder, 592 F.3d 681 (5th Cir. 2009) – A conviction under TEX. PENAL CODE ANN. § 46.04 for unlawful possession of a firearm is an AF under INA § 101(a)(43)(E)(ii) because it includes the substantive elements of 18 U.S.C. § 922(g)(1), even if it lacks the interstate commerce element, because the interstate element is purely jurisdictional. See Matter of Vasquez-Muniz, 23 I&N Dec. 207 (BIA 2002)(holding that an offense defined by state law may be classified as an AF “described in” a federal statute enumerated under INA § 101(a)(43) even if it lacks the jurisdictional element of the federal statute).

United States v. Diaz-Diaz, 327 F.3d 410 (5th Cir. 2003) – Conviction for possession of short-barrel firearm under TEX. PENAL CODE § 46.05 is almost identical to federal statute and qualifies as an offense described in § 5861 (relating to firearms offenses) and is therefore an AF.

Negrete-Rodriguez v. Mukasey, 518 F.3d 497 (7th Cir. 2008) – A conviction for unlawful possession of a firearm by a felon under 720 ILL. COMP. STAT. § 5/24-1.1(a) is an AF under INA § 101(a)(43)(E)(ii) because it is the state law counterpart to 18 U.S.C. § 922(g)(1) even without having an element of affecting interstate commerce. The court approved the BIA’s decision in Matter of Vasquez-Muniz, 22 I&N Dec. 207 (BIA 2002).

Alvarado v. Gonzales, 484 F.3d 535 (9th Cir. 2007) – Conviction for possession of firearms and ammunition by an unlawful user of a controlled substance pursuant to 18 U.S.C. § 922(g)(3) is an AF, regardless of whether the alien possessed the firearms for sporting purposes.

United States v. Castillo-Rivera, 244 F.3d 1020 (9th Cir. 2001) – Conviction under CAL. PENAL CODE § 12021(a) for being a felon in possession of a handgun is an AF even though the offense lacks the commerce element of 18 U.S.C. 922(g) (requiring foreign or interstate shipment of firearm). The court noted that CAL. PENAL CODE § 12021(a) is divisible statute, and not all conduct under it is an AF. Rather, one must use the categorical approach and look to the conviction record to determine specific offense. See Matter of Vasquez-Muniz, 23 I&N Dec. 207 (BIA 2002) (BIA affirms Castillo, saying the element of commerce in the federal statute is jurisdictional, and need not be present in either a state or foreign offenses firearms statute).

United States v. Sandoval-Barajas, 206 F.3d 853 (9th Cir. 2000) – Possession of unlicenced firearm under WASH. REV. CODE § 9.41.170 is not an AF. The full range of conduct proscribed by the state statute was not similar enough to federal statute to be an offense described in 18 U.S.C. § 922.

(F) Crimes of Violence (18 U.S.C. § 16) (Not including purely political offenses)–Term of imprisonment at least 1 year.

18 U.S.C. § 16(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. See U.S.S.G. § 2L1.2 (using the identical language in 18 U.S.C. § 16(a) to define COV for sentencing purposes).

• Indeterminate Sentences

Matter of Jean, 23 I&N Dec. 373 (A.G. 2002) – Indeterminate sentences are generally measured by the maximum period that could be imposed.

Matter of D-, 20 I&N Dec. 827 (BIA 1994) – Under Massachusetts law, for immigration purposes, an indeterminate sentence of imprisonment is measured by the maximum term imposed.

United States v. Galicia-Delgado, 130 F.3d 518 (2d Cir. 1997) – Under the sentencing guidelines, an indeterminate sentence is measured by the maximum term imposed, such a sentence of 30-90 months constituted a sentence of “at least five years” even though time actually served was less than five years.

United States v. Frias, 338 F.3d 206 (3d Cir. 2003) – An indeterminate sentence is measured by the maximum term of imprisonment rather than the sentence actually served.

Shaya v. Holder , 586 F.3d 401 (6th Cir. 2009) – Indeterminate prison sentences in Michigan must be measured by the term actually served or the minimum sentence, whichever is greater, rather than by the maximum term.

• Abduction/Kidnapping

United States v. Moreno-Florean, 542 F.3d 445 (5th Cir. 2008) – A kidnapping conviction under CAL. PENAL CODE § 207(a) is not categorically a COV under U.S.S.G. § 2L1.2 because kidnapping can be carried out by instilling fear in a victim rather than with physical force. As part of the modified categorical approach, the court could not find whether physical force was used because a guilty plea, by itself, does not constitute an averment of all the facts in the indictment and it did not have the plea agreement, transcript of the plea colloquy, or judicial factual findings to determine otherwise.

United States v. Soto-Sanchez, — F.3d —-, 2010 WL 3894467 (6th Cir. 2010) – Michigan conviction of Kidnapping in violation of MICH. COMP. LAWS § 750.349 constitutes a COV for federal sentencing purposes. The statute requires that the kidnapping be committed forcibly, which is an element requiring the use, attempted use, or threatened use of physical force against the person of another.

• Armed with Intent

United States v. Gomez-Hernandez, 300 F.3d 974 (8th Cir. 2002) – Iowa conviction for being armed with any dangerous weapon (hammer) with intent was found to be a COV.

Reyes-Alcaraz v. Ashcroft, 363 F.3d 937 (9th Cir. 2004) – Exhibiting a deadly weapon with the intent to resist arrest in violation of CAL. PENAL CODE § 417.8 is a COV and therefore an AF.

• Arson

Matter of Palacios , 22 I&N Dec. 434 (BIA 1998) – Intentional starting of fire or causing explosion has substantial risk of harm to person or property and is a COV. Arson in the first degree under ALASKA STAT. § 11.46.400 is therefore a COV.

United States v. Mitchell, 23 F.3d 1 (1st Cir. 1994) – Conspiracy to commit arson under 18 U.S.C. § 371, and aiding/abetting arson under 18 U.S.C. § 844 are COV’s because they both involve substantial risk force will be used.

Mbea v. Gonzales, 482 F.3d 276 (4th Cir. 2007) – Arson as defined by D.C. CODE § 22-401 is a COV because the malicious setting of fire to homes, public buildings, and churches has, as an element, the use, attempted use, or threatened use of physical force against the person or property of another.

United States v. Velez-Alderete, 569 F.3d 541 (5th Cir. 2009) – An arson conviction under TEX. PENAL CODE ANN. § 28.02 is a COV. The generic definition of arson involves willful and malicious burning of property, personal or real, without requiring that the burning threaten harm to a person. The Texas arson statute proscribes starting a fire with intent to destroy or damage various types of property. These variations involve willful and malicious burning of property. Therefore, the Texas arson statute falls within that definition and constitutes a COV.

Jordison v. Gonzales, 501 F.3d 1134 (9th Cir. 2007) – Conviction under CAL. PENAL CODE § 452(c) for recklessly setting fire to a structure or forest land is not categorically a COV because the statute is not limited to fires that damaged the property of others. Under the modified categorical approach, nothing in the record precluded the possibility that the alien was convicted for setting fire to his own property, so conviction was not a COV and thus not an AF.

• Assault (Misdemeanor)

Matter of Velasquez, 25 I&N Dec. 278 (BIA 2010) – A conviction under 18.2-57.2(A) of the Virginia Code for misdemeanor assault and battery against a family or household member is not categorically a COV under 18 U.S.C. § 16(a) because the offense does not include as an element the actual, attempted, or threatened use of “violent force” that is capable of causing pain or injury. See Johnson v. U.S., 130 S. Ct. 1265 (2010) (the physical force necessary for a COV must be “violent” force).

Matter of Martin, 23 I&N Dec. 491 (BIA 2002) – Third degree assault under CONN. GEN. STAT. § 53a-61 (class A misdemeanor) involves the intentional infliction of physical injury is a COV. But see Chrzanoski v. Ashcroft, 327 F.3d 188 (2d Cir. 2003); Flores v. Ashcroft, 350 F. 3d 666 (7th Cir. 2003).

Chrzanoski v. Ashcroft, 327 F.3d 188 (2d Cir. 2003) – Court ruled that third degree assault under CONN. GEN. STAT. § 53a-61 does not require use of force (statute requires intent to, and causation of injury) and is not a COV (18 U.S.C. § 16(a) requires the use of force). The court rejects Matter of Martin, 23 I&N Dec. 491 (BIA 2002) where the BIA addressed the same Connecticut statute.

Popal v. Gonzalez, 416 F.3d 249 (3d Cir. 2005) – A violation of 18 PA. CONS. STAT. § 2701(a) for misdemeanor simple assault is not a COV. The offense requires a mens rea of recklessness, which the Third Circuit held in Tran v. Gonzales, 414 F.3d 464 (3d Cir. 2005), does not meet the use of force requirement. Also, because the violation is not a felony, it does not qualify as a COV under 16(b).

Singh v. Gonzales, 432 F.3d 533 (3d Cir. 2005) – Simple assault, as defined by 18 PA. CONS. STAT. § 2701(a)(3) requires specific intent to use, threaten to use, attempt to use force against an individual and is therefore a COV within 18 U.S.C. § 16(a).

United States v. Ramirez, 557 F.3d 200 (5th Cir. 2009) – A third degree aggravated assault under N.J. STAT. ANN. § 2C:12-(1)(b)(7) is a COV because it requires a significant serious injury. Although significant bodily injury requirement differs from the substantial bodily injury requirement, however it is not enough to take the NJ statute out of the common-sense definition of the enumerated offense of an aggravated assault.

United States v. Villegas-Hernandez, 468 F.3d 874 (5th Cir. 2006) – Misdemeanor assault under TEX. PENAL CODE ANN. § 22.01(a)(1) does not have as an element the “use of physical force against the person of another” and thus is not a COV under section 16(a). United States v. Shelton, 325 F.3d 553 (5th Cir. 2003) rejected.

Suazo Perez v. Mukasey, 512 F.3d 1222 (9th Cir. 2008) – Misdemeanor domestic violence assault in the fourth degree in violation of the WASH. REV. CODE § 9A.36.041 is not categorically a COV because it can be committed by nonconsensual offensive touching.

• Assault

Lopes v. Keisler, 505 F.3d 58 (1st Cir. 2007) – Conviction under R.I. GEN. LAWS § 11-5-3 for simple assault or battery was a COV because the conviction records established that Lopes committed an assault, which, as defined by Rhode Island (RI) case law, qualifies as a COV. Because § 11-5-3 does not provide a definition of assault, the BIA appropriately looked to Rhode Island case law to determine how the state defines the crime. RI case law defines assault as “an unlawful attempt or offer, with force or violence, to do a corporal hurt to another, whether from malice or wantonness.” Thus, the conviction was a COV because it has as an element the “attempted use, or threatened use of physical force against the person or property of another.”

Ramirez v. Mukasey, 520 F.3d 47 (1st Cir. 2008) – Conviction for indecent assault and battery on a person 14 years or older, in violation of MASS. GEN. LAWS ch. 265, § 13H, is an AF COV because the offense, by its nature, presents a substantial risk that force may be used to overcome the victim’s lack of consent. The Court approves/adopts the same conclusion reached by the Second Circuit in Sutherland v. Reno, 228 F.3d 171 (2d Cir. 2000).

Canada v. Gonzales, 448 F.3d 560 (2d Cir. 2006) – Alien’s conviction for assault of a peace officer in violation of CONN. GEN. STAT. § 53a-176c(a)(1) is a COV and therefore an AF as the statute involved a substantial risk of the use of physical force.

Dale v. Holder, 610 F.3d 294 (5th Cir. 2010) – Assault in the first degree under N.Y. PENAL LAW § 120.10 – intent to cause serious physical injury to a another, with a deadly weapon, or recklessly engaging in conduct with a depraved indifference to human life, and causing serious physical injury or causing serious physical injury in the course of a felony– is divisible, as defendants are routinely allowed to plead to the legally impossible crime of attempted reckless assault. Case remanded.

United States v. Villegas-Hernandez, 468 F.3d 874 (5th Cir. 2006) – Assault under TEX. PENAL CODE ANN. § 22.01(a)(1) is not a COV because the use of force is not an element of that subsection.

United States v. Vargas-Duran, 356 F.3d 598 (5th Cir. 2004) – Intoxication assault under TEX. PENAL CODE ANN. § 49.07 (Drunk person by accident/mistake causes serious bodily injury) lacks intentional use of force and is not a COV.

Camacho-Cruz v. Holder, 621 F.3d 941 (9th Cir. 2010) – An alien’s conviction of assault with use of a deadly weapon under NEV. REV. STAT. § 200.471 is a COV because the statute requires that the alien, by using a deadly weapon, intentionally create in another person a reasonable fear of immediate bodily harm. Whether the alien actually intended to harm the victim or whether harm resulted is irrelevant.

United States v Laurico-Yeno, 590 F.3d 818 (9th Cir. 2010) – A conviction for willful infliction of corporal injury on a spouse/cohabitant/etc. under CAL PENAL CODE § 273.5(a) is categorically a COV under U.S.S.G. § 2L1.2(b)(1)(A)(ii) because it “has as an element the use, attempted use, or threatened use of physical force against the person of another.”

Prakash v. Holder, 579 F.3d 1033 (9th Cir. 2009) – Soliciting another to commit and join in the commission of assault by means of force likely to produce great bodily injury with intent that the crime be committed in violation of CAL. PENAL CODE § 653f(a) is a COV under 18 U.S.C. § 16(b), even if the actual violence occurs after the solicitation itself. Although the crime of solicitation can be committed without the use of force and before any actual force is used, this does not diminish the substantial risk of violence that solicitation of assault inherently presents.

United States v. Heron-Salinas, 566 F.3d 898 (9th Cir. 2009) – Assault with a firearm under CAL. PENAL CODE § 245(a)(1) is a COV under 18 U.S.C. § 16(a) and (b). See also Ortiz-Magana v. Mukasey, 523 F.3d 1042 (9th Cir. 2008) (aiding and abetting under CAL. PENAL CODE § 245(a)(1) a COV and AF).

Ortiz-Magana v. Mukasey, 542 F.3d 653 (9th Cir. 2008) – A conviction for assault with a deadly weapon under CAL. PENAL CODE § 245(a)(1) as an aider and abettor (instead of as a principal) is a COV and thus an AF because no principled distinction can be drawn for immigration purposes between an alien’s status as an accessory and his role as a principal under that California statute. See also United States v. Heron Salinas, 566 F.3d 898 (9th Cir. 2009).

United States v. Sandoval , 390 F.3d 1077 (9th Cir. 2004) – Third degree assault in Washington is not a COV for sentencing enhancement purposes. It was possible under Washington law to commit third degree assault by an unlawful touching that did not include substantial physical force or serious risk of physical injury.

United States v. Rodriguez-Enriquez, 518 F.3d 1191 (10th Cir. 2008) – Conviction for assault two (drugging a victim) under COLO. REV. STAT. ANN. § 18-3-203(1)(e) is not a crime that has as an element the use, attempted use, or threatened use of physical force and thus is not a COV.

United States v. Zuniga-Soto, 527 F.3d 1110 (10th Cir. 2008) – In determining whether a prior conviction is a COV as a crime that has as an element the use, attempted use, or threatened use of physical force against the person of another, a court’s inquiry is limited to the statutory definition of the prior offense, and not the facts underlying a defendant’s prior conviction; a court may examine certain judicial records only for the limited purpose of determining which part of the statute was charged against a defendant if the statute includes multiple definitions of an offense. A conviction for assaulting a public servant under TEXAS PENAL CODE ANN. § 22.01(b)(1) is not a COV because the statute permits convictions for reckless conduct.

United States v. Palomino Garcia, 606 F.3d 1317 (11th Cir. 2010) – A conviction for aggravated assault for intentionally, knowingly, or recklessly causing physical injury to an officer while in custody pursuant to ARIZ. REV. STAT. ANN. § 13-1204(A)(7) is not a COV under the sentencing guidelines because the statute criminalized recklessly causing injury, which does not satisfy the “use of physical force” requirement.

• Battery

Johnson v. United States, __ U.S. __, 130 S. Ct. 1265 (2010) – Alien’s conviction of battery under FLA. STAT. § 776.08 was not categorically a “violent felony” under the Career Criminal Act, 18 U.S.C. § 922(g)(1) because the term “physical force” under § 922(g)(1) requires as an element the application of strength, power, or violence, not simply slight touching. (“Violent felony” is defined as any crime that is punishable by more than 1 year in prison and that “has as an element, the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). This language replicates most of 18 U.S.C. § 16(a) but omits force against properly and includes a minimum punishment threshold).

United States v. Earle, 488 F.3d 537 (1st Cir. 2007) – Massachusetts offense of assault and battery by means of a dangerous weapon pursuant to MASS. GEN. LAWS ch. 265 § 15A(b) is a COV as it involves the use of physical force against another person.

Blake v. Gonzales, 481 F.3d 152 (2d Cir. 2007) – Massachusetts offense of assault and battery on a police officer pursuant to MASS. GEN. LAWS ch. 265 § 13D is a COV, regardless of whether it is committed intentionally, or wantonly and recklessly because the offense inescapably involves a substantial risk that physical force may be used.

Wireko v. Reno, 211 F.3d 833 (4th Cir. 2000) – Misdemeanor sexual battery in Virginia is a COV.

Larin-Ulloa v. Gonzales, 462 F.3d 456 (5th Cir. 2006) – Kansas aggravated battery conviction was found not to be an AF (not a COV). The alien had been convicted of “intentionally causing physical contact with another person when done in a rude, insulting or angry manner with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted.” The Court found that physical contact is not the same as physical force as is required for a finding of COV.

U.S. v. Rodriguez-Gomez, 608 F.3d 969 (7th Cir. 2010) – Aggravated battery under Illinois law, 720 ILL. COMP. STAT 5/12-4(b)(6) – intentionally or knowingly causes physical harm or makes physical contact of an insulting or provoking nature against a person the defendant knows to be a community policing volunteer – is divisible. Under a modified categorical approach, the indictment showed that the defendant had been convicted under the first prong of the statute for kicking the victim, a police officer, which the court found required the “use, attempted use, or threatened use of physical force” and, therefore, constituted a COV.

United States v. Evans, 576 F.3d 766 (7th Cir. 2009) – Aggravated battery involving harm to a pregnant individual under 720 ILL. COMP. STAT. §§ 5/12-3(a) and 5/12-4(b)(II) is not a COV. The battery statute can be violated through physical contact that is “insulting or provoking.” “‘Insulting or provoking’ physical contact, though intentional, could be no more violent than spitting” or kissing.

LaGuerre v. Mukasey, 526 F.3d 1037 (7th Cir. 2008) – A conviction for domestic battery under 720 ILL. COMP. STAT. 5/12-3.2(a)(1) is a COV because it has as an element the use of physical force.

Flores v. Ashcroft, 350 F.3d 666 (7th Cir. 2003) – Misdemeanor battery under IND. CODE § 35-42-2-1 (any touching in a rude, insolent, or angry manner) even if it causes bodily injury is not a COV because intent to use violent force (force intended to cause bodily injury, or likely to do so) must be an element of offense.

Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9th Cir. 2006) – Alien convicted of simple battery under CAL. PENAL CODE § 242 did not commit a COV. Although § 242 defined battery as “any willful and unlawful use of force or violence upon the person of another,” state courts had interpreted “force” to mean a “harmful or offensive touching.” Because a mere “offensive touching” does not rise to the level of COV in the Ninth Circuit, simple battery under § 242 is not a COV.

United States v. Gonzales-Tamariz, 310 F.3d 1168 (9th Cir. 2002) – In a case involving substantial bodily harm, battery was found to be a COV even as a misdemeanor because the sentence was a year or more.

Hernandez v. U.S. Attorney Gen., 513 F.3d 1336 (11th Cir. 2008) – Conviction for simple battery in violation of GA. CODE ANN. § 16-5-23(a)(2) is a COV because the offense requires intentionally causing physical harm to the victim through physical contact, and thus has, as an element, the use or attempted use of physical force.

• Burglary of a Habitation

United States v. Cardenas-Cardenas, 543 F.3d 731 (5th Cir. 2008) – The U.S. Supreme Court in James v. United States, 550 U.S. 192 (2007) did not overrule the Fifth Circuit precedent finding that a conviction for burglary under TEX. PENAL CODE ANN. § 30.02(a)(1) was a COV. In James, the Court dealt with a Florida burglary statute that criminalizes unlawful entry onto the curtilage of a structure. The Texas burglary statute, on the other hand, criminalizes entry into habitation or a building.

United States v. Constante, 544 F.3d 584 (5th Cir. 2008) – A Texas burglary conviction under TEX. PENAL CODE ANN. § 30.02(a)(3) a not a COV. Because there is no element of specific intent, section 30.02(a)(3) is not a generic burglary under Taylor v. United States, 495 U.S. 575, 598 (1990) (holding that generic burglary requires that a state statute contain, at minimum, the elements of “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.”).

United States v. Castillo-Morales, 507 F.3d 873 (5th Cir. 2007) – Burglary conviction under FLA. STAT. § 810.02(1), (3) includes crimes beyond COVs by defining dwelling to include cartilage. The Court held that “when a defendant stipulates that a “factual basis” for his plea is present in “court documents,” courts may use any uncontradicted facts in those documents to establish an element of a prior conviction.” Thus, the conviction was a COV under modified categorical approach.

United States v. Carbajal-Diaz, 508 F.3d 804 (5th Cir. 2007) – MO. ANN. STAT. §§ 569.160, 569.010(2), under which Carbajal-Diaz was convicted for burglary, swept more broadly than COV offense of “burglary of dwelling” by including buildings that may not be considered dwellings. However, under the modified categorical approach, the burglary indictment specified burglary of an apartment, and because the apartment in question was a dwelling, the offense was a COV.

United States v. Guadardo, 40 F.3d 102 (5th Cir. 1994) – Burglary of a habitation under TEX. PENAL CODE ANN. is a per se COV under 18 U.S.C. § 16(b). The court relies on reasoning in United States v. Flores, 875 F.2d 1110 (5th Cir. 1989) (whenever a private residence is broken into, there is always a substantial risk that force will be used).

United States v. Snellenberger, 548 F.3d 699 (9th Cir. 2008) – A conviction for burglary in violation of CAL. PENAL CODE § 459 is a COV. The circuit court held that courts could rely on clerk’s minute orders in determining if a prior state burglary conviction qualified as predicate COV if the minute order was prepared by a neutral officer of the court, and the defendant had the right to examine and challenge its content.

United States v. Cornelio-Pena, 435 F.3d 1279 (10th Cir. 2006) – Solicitation to commit burglary of a dwelling is a COV and AF for sentencing enhancement purposes because COV’s include crimes that are sufficiently similar to aiding and abetting, conspiracy, and attempt when the underlying crime is a COV, and solicitation (commanding, encouraging or requesting another person to commit a crime with intent to promote the commission of crime) is sufficiently similar to each.

• Burglary of a Nonresidential Building

United States v. Rodriguez-Rodriguez, 388 F.3d 466 (5th Cir. 2004) – Texas conviction for burglary of a building pursuant to 1974 TEX. PENAL CODE ANN. § 30.02 is not a COV because it does not have, as an element, the use, attempted use, or threatened use of physical force. Note: Overruled by United States v. Turner, 305 F.3d 349 (5th Cir. 2002) on other grounds.

United States v. Rodriguez-Guzman, 56 F.3d 18 (5th Cir. 1995) – Texas conviction for burglary of nonresidential building is a COV under 18 U.S.C. § 16(b) because the offense often involves the application of destructive physical force to the property of another.

• Burglary of a Vehicle

Lopez-Elias v. Reno, 209 F.3d 788 (5th Cir. 2000) – Burglary of vehicle with intent to commit theft in violation of TEX. PENAL CODE ANN. § 30.04(a) is a COV. Note: Conviction was neither a burglary nor a theft offense under 101(a)(43)(G).

United States v. Alvarez-Martinez, 286 F.3d 470 (7th Cir. 2002) – Burglary [of a vehicle] under Ill. law where person pried open the window of a locked car and stole a stereo was a COV under 18 U.S.C. §16(a) (physical force used). Note: This case interprets old case law and reading actual case is suggested before relying upon holding.

Solorzano-Patlan v. INS, 207 F.3d 869 (7th Cir. 2000) – Illinois offense of burglary of automobile was not a “burglary offense” nor a COV. IJ is required to review and analyze charging papers, not just language and title of statute. The Illinois statute broadly defines burglary. The case was remanded to determine whether petitioner’s conduct involved substantial risk that physical force be used. See (G) for further discussion.

Sareang Ye v. INS, 214 F.3d 1128, (9th Cir. 2000) – Vehicle burglary under CAL. PENAL CODE § 459 was found not to be burglary nor a COV. Vehicle burglary can be accomplished without physical force. No substantial risk that violent physical force will be used against person/property. See also Ngaeth v. Mukasey, 545 F.3d 796 (9th Cir. 2008). See also (G) for further discussion.

• Child Abuse

Matter of Sweetser, 22 I&N Dec. 709 (BIA 1999) – Conviction for criminally negligent child abuse under COLO. REV. STAT. § 18-6-401(1) (a divisible statute), for unreasonably placing child in situation which poses a threat (child left in bathtub and drowned) is a crime that does not involve a threat that a substantial risk that physical force would be used in its commission, and was therefore found not to be a COV. No force or violence is necessary. Instead, only an act of omission is required for a conviction under this portion of the state criminal statute.

Fregozo v. Holder, 576 F.3d 1030 (9th Cir. 2009) – A misdemeanor child endangerment conviction under CAL. PENAL CODE § 273a(b) is not categorically a crime of child abuse.

United States v. Saenz-Mendoza, 287 F.3d 1011 (10th Cir. 2002) – Misdemeanor conviction for child abuse (cruelty toward child) under Utah state law was found to be a COV.

• Child Abduction

United States v. Patterson, 576 F.3d 431 (7th Cir. 2009) – Knowingly transporting a minor in interstate commerce with intent that the minor engage in prostitution in violation of 18 U.S.C. § 2423(a) is a COV. The crime is purposeful and aggressive. The violator also exposes the victim to a foreseeable risk of violence, physical injury, and disease.

United States v. Franco-Fernandez, 511 F.3d 768 (7th Cir. 2008) – The Illinois offense of “putative father” child abduction under 720 ILL. COMP. STAT. 5/10-5(b)(3) is not a COV and thus not an AF.

United States v. Martinez-Jimenez, 294 F.3d 921 (7th Cir. 2002) – Luring a child into a motor vehicle in contravention of Illinois law was found to be a COV and therefore an AF.

• Contempt (criminal)

Matter of Aldabesheh, 22 I&N Dec. 983 (BIA 1999) – Criminal contempt in the first degree under N.Y. PENAL LAW § 215.51(b)(i) was found to be a COV under 18 U.S.C. § 16(b).

• Criminal Coercion

Cortez-Guillen v. Holder, 623 F.3d 933 (9th Cir 2010) – Alaska conviction of Criminal Coercion in violation of ALASKA STAT. § 11.41.530(a)(1) is not categorically a COV. The statute permits a conviction based on either fear of physical injury or any other crime, which may not involve violence or the use of force.

• Criminally Negligent Homicide

United States v. Dominguez-Ochoa, 386 F.3d 639 (5th Cir. 2004) – Texas criminally negligent homicide is not a COV under sentencing guidelines because it requires a mens rea of negligence, not intentional force.

• Criminal Mischief

United States v. Landeros-Gonzales, 262 F.3d 424 (5th Cir. 2001) – Defendant’s conviction for violation of Texas “criminal mischief” statute, TEX. PENAL CODE ANN. § 28.03(a)(3), for the intentional marking of another’s property was not a COV under 18 U.S.C. § 16(b) because it lacked substantial risk that destructive/violent force would be used.

• Criminal Sexual Misconduct

United States v. Rosas-Pulido, 526 F.3d 829 (5th Cir. 2008) – A conviction for criminal sexual conduct under MINN. STAT. ANN. § 609.345(1)(c) does not have as an element the use, attempted use, or threatened use of physical force against the person of another “for the same reasons” as it is not a “forcible sex offense,” that is, because it can include conduct that is not “forcible” as that term is commonly understood.

United States v. Fernandez-Cusco, 447 F.3d 382 (5th Cir. 2006) – Conviction for third degree sexual misconduct in violation of MINN. STAT. ANN. § 609.344(1)(c) for criminal sexual misconduct, which includes the use of force or coercion to accomplish penetration was found to be a COV for sentencing enhancement purposes.

• Criminal Trespass

United States v. Delgado-Enriquez, 188 F.3d 592 (5th Cir. 1999) – Criminal trespass under a divisible COLO. REV. STAT. § 18-4-502 (knowingly & unlawfully entering/remaining in a dwelling) creates substantial risk that physical force will be used against residents of dwelling and is, therefore, a COV under 18 U.S.C. § 16(b). Case was approved by United States v. Venegas-Ornelas, 348 F.3d 1273 (10th Cir. 2003) (dealing with same divisible part of COLO. REV. STAT. § 18-4-502).

• Discharging a Firearm/Shooting into an Occupied Dwelling

United States v. Alfaro, 408 F.3d 204 (5th Cir. 2005) – Shooting into an occupied dwelling in violation of VA. CODE ANN. § 18.202-79 (1993) -is not a COV for sentence enhancing purposes, because a defendant could violate the statute by shooting a gun at a building without actually shooting, attempting to shoot, or threatening to shoot another.

United States v. Gear, 577 F.3d 810 (7th Cir. 2009) – Reckless discharge of a firearm under 720 ILL. COMP. STAT. § 5/24-1.5(a) is not a COV under 18 U.S.C. § 16(b) because it does not encompass any purposeful, aggressive, and violent conduct.

Quezada-Luna v. Gonzales, 439 F.3d 403 (7th Cir. 2006) – Aggravated discharge of a firearm in violation of 720 ILL. COMP. STAT. § 5/24-1.2(a)(1) was found to be a COV and thus an AF, because the offense required discharge of a firearm into a building with reasonable knowledge that the building was occupied and therefore involved a substantial risk of force against the person or property of another.

United States v. Jaimes-Jaimes , 406 F.3d 845 (7th Cir. 2005) – Violation of WIS. STAT. ANN. § 941.20(2)(a) for discharging firearm into a vehicle or building was not a COV for sentence enhancement purposes, because elements did not require the defendant to use or threaten to use physical force against the person of another.

Covarrubias Teposte v. Holder, 623 F.3d 1094 (9th Cir. 2010) – California conviction of Shooting at Inhabited Dwelling or Vehicle in violation of CAL. PENAL CODE § 246 is not a COV under the categorical approach. A conviction can be based on a reckless mens rea, which is not the same as the intentional use of physical force.

• Domestic Violence

Banuelos-Ayon v. Holder, 611 F.3d 1080 (9th Cir. 2010) – A conviction under California’s domestic violence statute, CAL. PENAL CODE § 273.5(a) – criminalizing willful infliction of corporal injury on the mother or father or his child resulting in traumatic injury – is a COV, as it requires more than simple battery for conviction.

Matter of Perez Ramirez, 25 I&N Dec. 203 (BIA 2010) – Where a criminal alien’s sentence has been modified to include a term of imprisonment following a violation of probation, the resulting sentence is part of the penalty imposed for the original underlying crime, rather than punishment for a separate offense. Additionally, a misdemeanor conviction under CAL. PENAL CODE § 273.5(a) – willfully inflicting corporal injury upon the perpetrator’s spouse resulting in a traumatic condition – is a COV under 18 U.S.C. §16(a), as it requires as an element that the criminal alien have “willfully and directly appl[ied] upon another person a force that is of such violence as to cause a wound or external or internal injury to the victim.”

• DWI/DUI

Begay v. United States, 553 U.S. 137 (2008) – Driving under the influence of alcohol under N. M. STAT. ANN. §§ 66-8-102(A) and (C) is not a COV. Courts must examine the way the law defines the offense, not how an individual offense committed it. The offense contains no element of “use, attempted use, or threatened use of physical force against the person of another.” While drunk driving presents a serious risk of physical injury, the offense falls outside conduct involving purposeful, violent, and aggressive conduct.

Leocal v. Ashcroft, 543 U.S. 1 (2004) – State DUI offenses, such as Florida’s, that do not have a mens rea component, or require only a showing of negligence in the operation of a vehicle, are not COV’s under 18 U.S.C. § 16.

Matter of Ramos, 23 I&N Dec. 336 (BIA 2002) – Cases in Circuits that have not decided whether driving under the influence is a COV, DUI is a COV if committed at least recklessly and involves a substantial risk that perpetrator may resort to the use of force to carry out the crime. BIA ruled in Ramos that Massachusetts DWI (MASS. GEN. LAWS ch. 90, § 24(1)(a)(1)) does not involve substantial risk that physical force will be used against person/property while committing the offense and is not a COV. For cases arising in the circuits that have ruled on DWI/DUI as a COV, defer to the circuit law.

Dalton v. Ashcroft, 257 F.3d 200 (2d Cir. 2001) – N.Y. DWI (NY VEH. & TRAF. LAW § 1192.3) is not a COV since a COV involves application of force in the course of committing the offense.

United States v. Vargas-Duran, 356 F.3d 598 (5th Cir. 2004) – Use of force under 18 U.S.C. § 16 requires that a person intentionally avail himself of that force. Intoxication Assault under TEX. PENAL CODE ANN. § 49.07 was not a COV because intent need not be proven, only that offense happened “by accident or mistake.”

United States v. Chapa-Garza, 243 F.3d 921 (5th Cir. 2001) – A felony conviction for driving while intoxicated (DWI) in violation of TEX. PENAL CODE ANN.§ 49.09 is not a COV for sentencing purposes. See United States v. Hernandez-Avalos, 251 F.3d 505 (5th Cir. 2001) (federal statutes interpreted uniformly for sentencing/immigration purposes); Matter of Oliveras-Martinez, 23 I&N Dec. 148 (BIA 2001) (affirming Chapa-Garza for Fifth Circuit cases).

Bazan-Reyes v. INS, 256 F.3d 600 (7th Cir. 2001) – COV requires use of force in the commission of the offense. 18 U.S.C. § 16(b) means there is a substantial risk that person will intentionally employ physical force during commission of offense. DWI is not therefore a COV.

United States v. Portillo-Mendoza, 273 F.3d 1224 (9th Cir. 2001) – Use of force is an element of both prongs of 18 U.S.C. § 16. The use of force requires a volitional act. California DUI contains no intent requirement, and can be violated through mere negligence and is therefore not a COV. See also United States v. Trinidad-Aquino, 259 F.3d 1140 (9th Cir. 2001).

United States v. Lucio-Lucio, 347 F.3d 1202 (10th Cir. 2003) – DWI in Texas, by its nature, does not pose a substantial risk that physical force may be used in the commission of the offense is not a COV under 18 U.S.C. 16(b). This case notes distinction between crimes that create a risk of intentionally causing harm (like burglary) and crimes that create risk of accidentally causing harm (like DWI). Declined to extend Tapia v. INS, 237 F.3d 1216 (10th Cir. 2001) (which deferred DWI issue to BIA’s analysis in Matter of Puente, 22 I&N Dec. 1006 (BIA 1999), overruled by Matter of Ramos, 23 I&N Dec. 336 (BIA 2002) .

• Endangerment

United States v. Calderon-Pena, 383 F.3d 254 (5th Cir. 2004) – Endangering a child under TEX. PENAL CODE ANN. § 22.041(c) (intentionally, recklessly, through criminal negligence, or by act/omission, places child in imminent danger of death/bodily injury) is not a COV. Endangerment can, but need not, involve application of force. Includes conduct that does not require the intentional use of, or risk that force will be used. The court cites Chapa-Garza, 243 F.3d 921. See United States v. Gracia-Cantu, 302 F.3d 308 (5th Cir. 2002) (injury to child under TEX. PENAL CODE ANN. § 22.04(a) is not a COV).

United States v. Hernandez-Castellanos , 287 F.3d 876 (9th Cir. 2002) – For reckless conduct to satisfy 18 U.S.C. § 16(b) the conduct must require recklessness as to, or conscious disregard of, a risk that physical force will be used against another, not merely the risk that another might be injured. Endangerment under ARIZ. REV. STAT. ANN. § 13-1201 (substantial risk of imminent death or physical injury) does not mean “substantial risk that physical force may be used.” Endangerment could be caused by failure to act. Arizona endangerment is not a COV.

• Escape

United States v. Hopkins, 577 F.3d 507 (3d Cir. 2009) – A second degree misdemeanor escape under 18 PA. CONST. STAT. ANN. § 5121 is not a COV. Escape from detention is purposeful conduct, however, the “crime of conviction is unaccompanied by ‘force, threat, deadly weapon, or other dangerous instrumentality.’” And since the detention relates to an unadjudicated misdemeanor, it is expected that the office will employ force that will present materially less of a potential for physical injury to the officer than if it were a felony crime.

United States v. Hart, 578 F.3d 674 (7th Cir. 2009) – A federal escape conviction under 18 U.S.C. § 751(a) is not a COV. The federal escape statute covers a wide range of conduct, from violent jailbreaks to quiet walkaways.

United States v. Park, 620 F.3d 911 (8th Cir. 2010) – A class D felony for escape under MO. REV. STAT. § 575.210 can be a COV the residual clause of U.S.S.G. § 4B1.2(a)(2) (“involves conduct that presents a serious potential risk of physical injury to another)” if the criminal alien escaped from guarded confinement. Under a modified categorical approach, the court determined that the criminal alien had escaped from guarded confinement and was convicted of a COV for running past a guard who was opening the confinement door at a specific time.

• Evading Arrest of an Officer

United States v. Harrimon, 568 F.3d 531 (5th Cir. 2009) – Evading arrest or detention by use of a vehicle under TEX. PENAL CODE ANN. § 38.04(b)(1) is a COV. The conviction requires fleeing that is purposeful, violent, and aggressive. Fleeing by vehicle (1) requires disregarding an officer’s lawful order, which is a challenge to the officer’s authority and initiates pursuit; (2) is violent because the use of a vehicle to evade arrest involves a violent force, which an arresting officer must in some way overcome; (3) will typically lead to a confrontation with the officer being disobeyed, which contains a risk of violence; and (4) poses a serious risk of injury to others—as a fleeing offender evading arrest will not hesitate to endanger others to make the escape.

United States v. Hudson, 577 F.3d 883 (8th Cir. 2009) – Resisting arrest by fleeing in such a manner that created a substantial risk of serious physical injury or death to any person under MO. REV. STAT. § 575.150.5 is a COV. Knowingly fleeing a police officer who is attempting to make an arrest is purposeful conduct. The statute also involves conduct that is purposeful and aggressive because resting arrest by fleeing inevitably invites confrontation as it calls the officer to give chase and endangers him needlessly in the pursuit.

Penuliar v. Mukasey, 528 F.3d 603 (9th Cir. 2008) – Evading an officer under CAL. VEH. CODE § 2800.2 is not categorically a COV and charging document and abstract of judgment were insufficient to show COV under modified categorical approach. Conviction for unlawful driving or taking of a vehicle under CAL. VEH. CODE § 10851(a) is not categorically a theft offense and charging documents were insufficient to show theft offense.

• Facilitation

Nguyen v. Ashcroft, 366 F.3d 386 (5th Cir. 2004) – Facilitation in drive-by shooting under OKLA. STAT. tit. 21, § 652(b) (person uses vehicle to facilitate intentional discharge of any kind of firearm) is a COV under 18 U.S.C. § 16(b). Intentional discharge of firearm is required for conviction, even if driver of car did not discharge firearm, he facilitated, and committed a COV.

• Failure to Report

Chambers v. United States, 129 S. Ct. 687 (2009) – Failure to report under 720 ILL. COMP. STAT. § 5/31-6(a) is not a COV. The offense contains no element of “use, attempted use, or threatened use of physical force against the person of another.” The offense does not involve conduct that presents a serious potential risk of physical injury to another, and is a “far cry from the ‘purposeful, violent, and aggressive conduct’” because an individual who fails to report would unlikely call attention to his whereabouts by engaging in additional violent or unlawful conduct.

• False Imprisonment

United States v. Hernandez-Hernandez, 431 F.3d 1212 (9th Cir. 2005) – A conviction under CAL. PENAL CODE §§ 236 and 237 for unlawfully violating the personal liberty of another by violence, menace, fraud or deceit was found to be a COV. The court utilized the modified categorical approach, and relied on a stipulated motion in determining that the petitioner had violently violated the personal liberty of another and was thus guilty of a COV. The court noted that had the crime been committed by use of fraud or deceit, the offense would not have been a COV.

United States v. Ruiz-Rodriguez, 494 F.3d 1273 (10th Cir. 2007) – False imprisonment pursuant to NEB. REV. STAT. § 28-314(1) is not categorically a COV because the offense may be committed by restraint through deception and thus, it does not require the use, attempted use, or threatened use of physical force.

Brooks v. Ashcroft, 283 F.3d 1268 (11th Cir. 2002) – False imprisonment under FLA. STAT. § 787.02 is a COV. The court relied on Matter of Alcantar, 20 I&N Dec. 801 (BIA 1994). Note: Superseded by statute on other grounds.

• Grand Theft

Van Don Nguyen v. Holder, 571 F.3d 524 (6th Cir. 2009) – Grand theft of an automobile under CAL. PENAL CODE § 487 is not a COV under 18 U.S.C. § 16(b). The statutory elements do not mention violent conduct and encompass inherently nonviolent conduct. While there is a chance that violent force could be used, however, the risk is not substantial in the commission of the offense.

• Harassment

Scucz-Toldy v. Gonzales, 400 F.3d 978 (7th Cir. 2005) – Harassment by telephone under 720 ILL. COMP. STAT. § 135/1-1(2)) is not a COV under 18 U.S.C. § 16(a) because it is not necessary to prove the use or threatened use of physical force to sustain a conviction.

Singh v. Ashcroft, 386 F.3d 1228 (9th Cir. 2004) – Oregon misdemeanor crime of harassment was found not to be a COV since the crime did not require force.

• Indecency with a Child

United States v. Castro-Guevarra, 575 F.3d 550 (5th Cir. 2009) – Consensual sexual intercourse with a child, defined as a person younger than the age of 17 under TEX. PENAL CODE ANN. §§ 22.011(a)(2)(A) and (c)(1) is a COV. The Texas statute meets a common sense definition of statutory rape. Further, sexual assault under the TEX PENAL CODE ANN. § 22.011(a)(2) also qualifies as sexual abuse of a minor. Finally, the “use of force” element is not required because the Fifth Circuit has previously held that sexual abuse of a minor is a COV even if no element of physical force is shown.

United States v. Munoz-Ortenza, 563 F.3d 112 (5th Cir. 2009) – Oral copulation with a minor under CAL. PENAL CODE § 288a(b)(1) is not a COV. In a “crime of violence” context, the court must follow the Taylor v. United States, 495 U.S. 575 (1990) “common sense approach.” In view of Taylor, the California Penal Code definition of a minor (an individual under the age of eighteen) is overbroad, thus, criminalizing conduct that normally not be criminalized under the generic, contemporary meaning of “sexual abuse of a minor.”

United States v. Velazquez-Overa, 100 F.3d 418 (5th Cir. 1996) – Texas felony for indecency with a child involving sexual contact is a COV under 18 U.S.C. § 16(b) because the offense entails a substantial risk that physical force may be used against the victim. The court relied on United States v. Wood, 52 F.3d 272 (9th Cir. 1995) (holding that the threat of violence is implicit in the size, age and authority position of the adult in dealing with such a young and helpless child).

• Injury to a Child

United States v. Andino-Ortega, 608 F.3d 305 (5th Cir. 2010) – Even an intentional act of injury to a child under TEX. PENAL CODE § 22.04(a) (as opposed to injury by omission) is not a COV because it does not require “as an element” the use or attempted use of physical force. Because the statute is not divisible, no modified categorical approach was taken.

Perez-Munoz v. Keisler, 507 F.3d 357 (5th Cir. 2007) – An offense for injury to a child under TEX. PENAL CODE § 22.04(a)(3) is not categorically a COV since it can be committed in two ways: first, by one who by act causes injury to a child, and second, by one who by omission causes injury to a child. Under the modified categorical approach, the charging document revealed that Perez-Munoz was charged with an intentional act rather than an omission, and, thus, the conviction was a COV.

United States v. Gracia-Cantu, 302 F.3d 308 (5th Cir. 2002) – Injury to a child under TEX. PENAL CODE § 22.04(a) is not a COV under 18 U.S.C. § 16(b). The offense is result oriented and does not require the use or attempted use of force.

• Involuntary Manslaughter

Matter of Alcantar, 20 I&N Dec. 801 (BIA 1994) – Conviction for involuntary manslaughter under ILL. REV. STAT. ch. 38, para. 9-3(a) is a COV under 18 U.S.C. § 16(b). Section 16(b) does not require a specific intent to do violence, but at minimum a reckless behavior which poses a substantial risk of harm to person or property. Note: This dicta is often not followed by Circuits which require an intentional use of force, not recklessness.

Bejarano-Urrutia v. Gonzales, 413 F.3d 444 (4th Cir. 2005) – Simple involuntary manslaughter under VA. PENAL CODE § 18.2-36 is not a COV because, although the offense intrinsically involved a substantial risk of physical harm, it did not intrinsically involve a substantial risk that force would be applied as a means to an end.

United States v. Woods, 576 F.3d 400 (7th Cir. 2009) – Involuntary manslaughter under 720 ILL. COMP. STAT. § 5/9-3 is not a COV under § 18 U.S.C. 16(b) because the offense is not a purposeful crime but rather requires recklessness as mens rea. See also United States v. Booker, 579 F.3d 835 (7th Cir. 2009).

United States v. Springfield , 829 F.2d 860 (9th Cir. 1987) – Involuntary manslaughter (unlawful killing of a person without malice) is a COV under 18 U.S.C. § 16(b). Offense carries a substantial risk of physical force.

• Manslaughter

Matter of Vargas-Sarmiento, 23 I&N Dec. 651 (BIA 2004) – First degree manslaughter under N.Y. PENAL LAW § 125.20(1) or § 125.20(2) is a COV under 18 U.S.C. § 16(b). Conviction requires proof of intent to cause serious injury or death, and there is a substantial risk that intentional force will be used. Note: A conviction under § 125.20(3) (causing death of pregnant mother while performing abortion) is not a COV–ignoring Matter of Alcantar, 20 I&N Dec. 801 (BIA 1994) (stating that reckless behavior can be a COV).

Vargas-Sarmiento v. USDOJ, 448 F.3d 159 (2d Cir. 2006) – Conviction of alien for first-degree manslaughter in violation of N.Y. PENAL LAW § 125.20, based on alien’s conduct of stabbing victim and causing wounds from which she died, constituted COV for which alien was removable because inherent in the nature of the offense was the substantial risk that the perpetrator could intentionally use physical force in committing the crime, since the perpetrator had to cause death while acting with the specific intent to do so, or with the specific intent to cause serious physical injury.

Jobson v. Ashcroft, 326 F.3d 367 (2d Cir. 2003) – Second degree manslaughter under N.Y. PENAL LAW § 125.15(1) (recklessly cause the death of another person) is not a COV. Substantial risk of intentional use of force is required to be a COV under 18 U.S.C. § 16(b). Unintentional accident caused by recklessness cannot involve a substantial risk of intentional use of force.

United States v. Torres-Villalobos, 487 F.3d 607 (8th Cir. 2007) – Second degree manslaughter under MINN. STAT. ANN. § 609.205(1), punishing a person who causes the death of another by “the person’s culpable negligence” whereby the person “creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm to another,” is not a COV because the offense does not have as an element the use of force nor does it involve a risk that the perpetrator will intentionally use physical force in the course of committing the offense. United States v. Moore, 38 F.3d 977 (8th Cir. 1994) & Omar v. INS, 298 F.3d 710 (8th Cir. 2002) recognized as superseded by Leocal v. Ashcroft, 543 U.S. 1 (2004).

• Mayhem

Ruiz-Morales v. Ashcroft, 361 F.3d 1219 (9th Cir. 2004) – Mayhem (unlawfully and maliciously depriving person of a member of his body, or disables/disfigures/or renders it useless, or cuts/disables tongue or puts eye out or slits nose/ear/lip) under CAL. PENAL CODE § 203 is a COV under 18 U.S.C. § 16(b) because it involves substantial risk that force will be used.

• Menacing

United States v. Melchor-Meceno, 620 F.3d 1180 (9th Cir. 2010) – a conviction for felony menacing under COL. REV. STAT. § 18-3-206, which requires knowingly placing another in fear of imminent serious bodily injury, is a COV for sentencing purposes under USSG § 2L1.2 because it requires both active violent force and a mens rea of intent.

United States v. Drummond, 240 F.3d 1333 (11th Cir. 2001) – Menacing, under N.Y. PENAL LAW § 120.14 (intentionally places/attempts to place person in fear of physical injury/serious death by displaying deadly weapon/instrument) is a COV under 18 U.S.C. § 16(a) because it involves the use or attempted use of force.

• Murder for Hire

Ng v. Attorney Gen., 436 F.3d 392 (3d Cir. 2006) – Respondent’s conviction under 18 U.S.C. § 1958, the use of interstate commerce facilities in the commission of a murder-for-hire, constitutes an AF under INA § 101(a)(43)(F) (COV under 18 U.S.C. § 16(b)). The court stated that the respondent committed a COV within the meaning of the Act, regardless of whether the person solicited to commit the murder agrees to the plan or not because the natural consequence of using interstate commerce facilities in the commission of a murder-for-hire is that physical force will be used upon another.

• Possession of a Deadly Weapon

Brooks v. Holder, 621 F.3d 88 (2d Cir. 2010) – A conviction for second-degree criminal possession of a weapon under N.Y. PENAL LAW § 265.03(1)(b), is COV under 18 U.S.C. § 16(b) because possession of a loaded firearm with intent to use it involves a “substantial risk” that force will be used.

United States v. Gamez, 577 F.3d 394 (2d Cir. 2009) – Second degree criminal possession of a weapon under N.Y. PENAL LAW § is not a COV under the sentencing guidelines. The offense lacks the element of “use, attempted use, or threatened use of physical force.” See 18 U.S.C. § 16(a).

United States v. Polk, 577 F.3d 515 (3d Cir. 2009) – Possession of a shank in prison under 18 U.S.C. § 1791(a)(2) is not a COV. While possession of a weapon in prison does present inherent dangers, this alone cannot transform it into a COV.

United States v. Medina-Anicacio, 325 F.3d 638 (5th Cir. 2003) – California conviction for possession of a deadly weapon (dagger) is not a COV under 18 U.S.C. § 16(a) (in that possession of deadly weapon does not involve use/attempted use of force) or 18 U.S.C. § 16(b) (no substantial risk that an offender may use violence to perpetrate the offense (knowingly possessing & concealing weapon). The court relied on United States v. Chapa-Garza, 243 F.3d 921 (5th Cir. 2001); United States v. Hernandez-Neave, 291 F.3d 296 (5th Cir. 2001).

• Possession of a Firearm

United States v. Lipscomb, 619 F.3d 474 (5th Cir. 2010) – For sentencing purposes under U.S.S.G. § 4B1.2, a conviction under 18 U.S.C. § 922(g), possessing a firearm as a felon, is a COV if the indictment specifically charged that the firearm was a “sawed-off shotgun.” The categorical approach in Taylor v. U.S., 495 U.S. 575 (1990) did not apply because Application Note 1 of § 4B1.2 contained specific language that possession of a sawed-off shotgun by a felon was a COV.

United States v. Diaz-Diaz, 327 F.3d 410 (5th Cir. 2003) – Conviction of possession of short barrel firearm under TEX. PENAL CODE ANN. § 46.05(a)(3) is not a COV under 18 U.S.C. § 16(b) because force need not be used to complete offense.

United States v. Hernandez-Neave , 291 F.3d 296 (5th Cir. 2001) – Unlawfully carrying a firearm on premises licensed or permitted to sell alcoholic beverages under TEX. PENAL CODE ANN. § 46.02 is not a COV under 18 U.S.C. § 16(b). Crime is committed/completed upon entry of premises with firearm. There is no supposed intentional use of force against person/property in the commission of the offense and no substantial risk of harm that force would be used.

United States v. Rivas-Palacios , 244 F.3d 396 (5th Cir. 2001) – Unlawful possession of any unregistered firearm (in this case a sawed-off shotgun) is a COV. Registration is required for certain firearms because of the virtual inevitability that such possession will result in violence.

United States v. Vincent, 575 F.3d 820 (8th Cir. 2009) – Possession of a sawed-off shotgun under ARK. CODE. ANN § 5-73-104(a) is a COV because it presents a serious potential risk of physical injury to another and enables violence or a threat of violence.

United States v. Serafin, 562 F.3d 1105 (10th Cir. 2009) – A conviction for knowingly possessing of an unregistered firearm under 26 U.S.C. §§ 5841, 5845(a), 5861(d), and 5871, is not a COV. The statute does not have an element accounting for the time of possession and the use or risk of force is not implicated in an individual’s possession of the unregistered firearm. Possession of a firearm does not make the possession offense violent.

• Rape/Statutory Rape

Matter of B-, 21 I&N Dec. 287 (BIA 1996) – Second degree rape under MD. CODE, ART. 21, § 463(a)(3) (repealed 2002) (engaging in vaginal intercourse with person under 14 years old and person performing act is 4 years older than victim) for which a criminal alien was sentenced to 10 years in prison, is a COV under 18 U.S.C. § 16(b).

Aguiar v. Gonzales, 438 F.3d 86 (1st Cir. 2006) – Conviction under Rhode Island’s third degree sexual assault statute (11-36-6 person over the age of 18 engages in sexual penetration with person over 14 and under 16) was found to be a COV and AF as use of force was inherent in the minor’s inability to give consent. Joined the Second, Fifth, Eighth, Tenth, and Eleventh Circuits in interpreting similar statutes to be COV’s because there is a substantial risk of the use of physical force given the minor’s age.

Cherry v. Ashcroft, 347 F.3d 404 (2d Cir. 2003) – Second degree sexual assault under CONN. GEN STAT. § 53a-71 (sexual intercourse with someone 13-16 years old and perpetrator over 2 years older than victim) is a COV under 18 U.S.C. § 16(b). Offense involves substantial risk that force will be used in committing offense.

United States v. Chacon, 533 F.3d 250 (4th Cir. 2008) – A conviction for second-degree rape under MD. CODE, ART. 27, § 463 (repealed 2002) has as an element the use, attempted use, or threatened use of physical force against the person of another, and thus is a COV, if the offense is committed under the statute’s first and third subsections, namely, 1) engaging in sexual intercourse with another by force or threat of force and 2) sexual intercourse with a person who is under 14 years of age and the defendant is at least four years older than the victim. The statute’s third subsection, sexual intercourse with another who is mentally defective, mentally incapacitated, or physically helpless and the defendant knows or should reasonably know of such disability, however, can be violated without the use or threat of physical force.

United States v. Gomez-Gomez, 547 F.3d 242 (5th Cir. 2008) – A conviction under California’s rape statute, CAL. PENAL CODE § 261(a)(2), qualifies as a forcible sex offense, and therefore, a COV, even if the perpetrator used constructive, non-physical force of duress. The plain meaning of “force” is defined, inter alia, as pressure directed against a person or thing. Since pressure can be both physical or mental in nature, a sex offense committed using constructive force qualifies as a forcible sex offense and is a COV.

United States v. Velazquez-Overa, 100 F.3d 418 (5th Cir. 1996) – Indecency with a child (sexual contact with child) under TEX. PENAL CODE ANN. § 21.11 is a COV under 18 U.S.C. § 16(b). Adult sexually touching a child involves substantial risk that force will be used against child.

Jimenez-Gonzalez v. Mukasey, 548 F.3d 557 (7th Cir. 2008) – Criminal recklessness for “shooting a firearm into an inhabited building or other building or place where people are likely to gather,” under IND. CODE ANN. § 35-42-2-2(b)(1), (c)(3), is not an AF as a COV. The court found that reckless crimes are not AF as crimes of violence under 18 U.S.C. § 16(b). The court’s ruling accords with decisions by the Third, Fourth, Sixth, Ninth, and Tenth Circuits.

Xiong v. INS , 173 F.3d 601 (7th Cir. 1999) – Statutory rape/second degree sexual assault of child under WIS. STAT. ANN. § 948.02(2) (sexual contact or sexual intercourse with person under 16) is not a COV. The statute includes conduct that does not involve a risk that force will be used (i.e. consensual sex between 16 and 15 year old couple).

United States v. Alas-Castro , 184 F.3d 812 (8th Cir. 1999) – Sexual abuse of child under NEV. REV. STAT. § 28-320.01 (person subjects another 14 or younger to sexual contact and actor is 19 or older) is a COV under 18 U.S.C. § 16(b). Conviction requires intentional sexual contact, and there is substantial risk that force will be used.

Prakash v. Holder, 579 F.3d 1033 (9th Cir. 2009) – Soliciting another to commit rape by force and violence with the intent that the crime be committed in violation of CAL. PENAL CODE § 653f (c) is a COV under 18 U.S.C. § 16(b). Although the crime of solicitation can be committed without the use of force and before any actual force is used, this does not diminish the substantial risk of violence that solicitation of rape inherently presents.

Valencia v. Gonzales, 439 F.3d 1046 (9th Cir. 2006) – The court held that felony unlawful sexual intercourse with a person under eighteen, who was more than three years younger than he in violation of CAL. PENAL CODE § 261.5(c) was not a COV. The Court stated that “absent aggravating factors such as incest or a substantial age difference, a violation of [§261.5(c)] does not, ‘by its nature, involve [ ] a substantial risk that [violent] physical force against the person or property of another may be used in the course of committing the offense.” The Court cited Xiong v. INS, 173 F.3d 601 (7th Cir. 1999) and United States v. Sawyers, 409 F.3d 732 (6th Cir. 2005) (unlawful sexual contact between a twenty-year-old perpetrator and sixteen-year-old victim not a COV under Armed Career Criminal Act) in support of the need for some aggravating factor. The Court also distinguished the present case from Chery v. Ashcroft, 347 F.3d 404 (2d Cir. 2003), and Wood v. United States, 52 F.3d 272 (9th Cir. 1995).

United States V. Chavarriya-Mejia , 367 F.3d 1249 (11th Cir. 2004) -Third degree rape (statutory rape) under KY. REV. STAT. § 510.060 is a COV for sentencing purposes because it has as an element the use, attempted use, threatened use, or substantial risk that force will be used.

• Reckless Conduct

Massis v. Mukasey, 549 F.3d 631 (4th Cir. 2008) – Under 1995 Maryland law, an offense of reckless endangerment and criminal contempt is a COV.

United States v. White, 258 F.3d 374 (5th Cir. 2001) – An offense of reckless conduct under TEX. PENAL CODE ANN. § 22.05 does not contain the element of the use or attempted use of physical force and is therefore not a COV.

Saqr v. Holder , 580 F.3d 414 (6th Cir. 2009) – for purposes of determining whether the pre- or post-IIRIRA definition of AF applies, “actions taken” derives from the point at which the removal action begins. This point is the date upon which the alien is served with the notice to appear before an IJ, not when jurisdiction vests with the IJ. Under the pre-IIRIRA imprisonment requirement, neither a conviction for reckless homicide nor a conviction for second degree assault in violation of Kentucky law constituted an AF. See Alanis-Bustamante v. Reno, 201 F.3d 1303, 1310 (11th Cir. 2000); Wallace v. Reno, 194 F.3d 279, 287 (1st Cir. 1999); But see Garrido-Morato v. Gonzales, 485 F.3d 319, 324 (5th Cir. 2007).

• Recklessly Burning or Exploding

Tran v. Gonzalez, 414 F.3d 464 (3d Cir. 2005) – Conviction for recklessly burning or exploding under 18 PA. CONS. STAT. § 3301(d)(2) is not a COV. The court held that § 16(a) requires specific use of force, and 18 U.S.C. § 16(b) requires a substantial risk that the actor will intentionally use physical force.

• Resisting Arrest

Reyes-Alcaraz v. Ashcroft, 363 F.3d 937 (9th Cir. 2004) – Exhibiting a deadly weapon with intent to resist arrest in violation of CAL. PENAL CODE § 417.8 was found to be a COV.

• Retaliation

United States v. Martinez-Mata, 393 F.3d 625 (5th Cir. 2004) – Texas state law offense of retaliation does not have has an element the use of physical force and is not a COV.

United States v. Acuna-Cuadros , 385 F.3d 875 (5th Cir. 2004) – Retaliation (knowingly harms or threatens to harm another by an unlawful act in retaliation for or on account of the services of another) under Texas law is not a COV. Causing harm does not mean force will be used or that there is a substantial risk force will be used in committing the offense.

• Rioting

United States v. Hernandez-Rodriguez, 388 F.3d 779 (10th Cir. 2004) – Utah conviction for attempted riot is a COV and therefore an AF.

• Robbery

Matter of L-S-J- , 21 I&N Dec. 973 (BIA 1997) – A conviction for the federal crime of robbery with a deadly weapon (handgun) is a COV.

United States v. Galicia-Delgado, 130 F.3d 518 (2d Cir. 1997) – First degree robbery under N.Y. PENAL LAW § 160.15 is a COV under 18 U.S.C. § 16(a). One element of the crime is forcibly stealing property which involves the use of force.

Thap v. Mukasey, 544 F.3d 674 (6th Cir. 2008) – Alien was convicted for robbery in the second degree under CAL. PENAL CODE § 211 in 1996. The Circuit Court held that the conviction for robbery was a COV/AF, as it is a crime which categorically and by its nature involves the substantial risk that physical force may be used in committing the offense. See also United States v. Valladares, 304 F.3d 1300 (9th Cir. 2002).

Nieves-Medrano v. Holder, 590 F.3d 1057 (9th Cir. 2010) – A California conviction for carjacking under CAL. PENAL LAW § 215 is categorically a COV under 18 U.S.C. § 16(a).

United States v. Rivera-Ramos, 578 F.3d 1111 (9th Cir. 2009) – Attempted robbery under N.Y. PENAL LAW §§ 101.00 and 160.15(3) is a COV. The operational meaning of ‘attempt’ under New York law is no broader than the common law definition.

United States v. Saavedra-Velazquez, 578 F.3d 1103 (9th Cir. 2009) – Attempted robbery under CAL. PENAL CODE § 211 is a COV. California’s definition of ‘attempt’ is coextensive with the common-law definition.

United States v. Valladares, 304 F.3d 1300 (9th Cir. 2002) – Second degree robbery under CAL. PENAL CODE § 211 (felonious taking of personal property of another, from his person or immediate presence, against his will, accomplished by force or fear) is a COV under 16(b) (involves substantial risk force will be used). See also United States v. Saavedra-Velazquez, 578 F.3d 1103 (9th Cir. 2009); Thap v. Mukasey, 544 F.3d 674 (6th Cir. 2008).

• Sexual Abuse

United States v Remoi, 404 F.3d 789 (3d Cir. 2005) – Sexual abuse pursuant to N.J. STAT. ANN. § 2C: 14-2(c)(2)(1990) where the defendant penetrated a physically helpless, mentally defective, or mentally incapacitated victim is a COV for sentence enhancement purposes, because it is a “forcible sex offense” enumerated in U.S.S.G. § 2L1.2(II).

United States v. Medina-Villa, 567 F.3d 507 (9th Cir. 2009) – Lewd and lascivious act on a child under fourteen under CAL. PENAL CODE § 288(a) constitutes sexual abuse of a minor, qualifying it as a COV and an AF.

United States v. Beltran-Munguia, 489 F.3d 1042 (9th Cir. 2007) – Sexual abuse pursuant to OR. REV. STAT. § 163.425 is not a COV because the offense, which punishes penetration when the victim is incapable of giving consent (under 18, mentally defective, mentally incapacitated, or physically helpless), neither has, as an element, the use, attempted use, or threatened use of physical force, nor constitutes a forcible sex offense.

United States v. Romero-Hernandez, 505 F.3d 1082 (10th Cir. 2007) – Conviction for misdemeanor unlawful sexual contact in violation of COLO. REV. STAT. § 18-3-404(1) is categorically a forcible sex offense, and thus a COV under § 2L1.2. This conduct includes non-consensual sexual contact that is not necessarily achieved by physical force.

• Sexual Assault

Costa v. Holder, 611 F.3d 110 (2d Cir. 2010) – CONN. GEN. STAT. § 53a-71, for sexual assault in the second degree – sexual intercourse with a person between 13 years and 16 years of age when the perpetrator is more than 3 years older than the victim or intercourse with a victim with mental deficiencies – is not divisible because “when the victim cannot consent, the statute inherently involves a substantial risk that that physical force may be used in the course of committing the offense.” Therefore, a conviction under any section of § 53a-71 is a COV.

United States v. Sarmiento-Funes, 374 F.3d 336 (5th Cir. 2004) – Sexual assault (having sexual intercourse knowing there has been no consent) under MO. REV. STAT. § 566.040(1) is not a COV. The statute does not require use of force (only lack of consent, which can occur due to deception or impaired judgment due to drugs; this type of assent does not require physical coercion, or risk of force). The court notes that Missouri has a forcible rape statute where use of force is an element.

United States v. Rayo-Valdez , 302 F.3d 314 (5th Cir. 2002) – Aggravated sexual assault of a child under 14 years old under TEX. PENAL CODE ANN. § 22.021 is a COV. Sexual abuse of a minor inherently requires use of force.

Ramsey v. INS , 55 F.3d 580 (11th Cir. 1995) – Attempted lewd assault under FLA. STAT. § 777.04(1) and lewd assault under § 800.04 (lewd conduct on/in presence of person under 16 years old) is a COV under 18 U.S.C. § 16(b). Substantial risk that force will be used to commit lewd assault, the same is true for an attempt.

• Sexual Battery

Zaidi v. Ashcroft, 374 F.3d 357 (5th Cir. 2004) – Sexual battery (intentional touching, mauling or feeling of the body or private parts of any person 16 or older, in a lewd/lascivious manner and without consent) under 21 OKLA. STAT. ANN. § 1123(B) is a COV under 18 U.S.C. § 16(b) because it creates substantial risk force may be used to overcome lack of consent.

U.S. v. Espinoza-Morales, 621 F.3d 1141 (9th Cir. 2010) – Convictions of Sexual Battery in violation of CAL. PENAL CODE § 243.4(a) and Penetration with a Foreign Object in violation of CAL. PENAL CODE § 289(a)(1) do not categorically constitute a COV for purposes of the U.S.S.G. Specifically, the Court held that the use, attempted use, or threatened use of physical force is not an element required for conviction under either statute. .

Lisbey v. Gonzales, 420 F.3d 930 (9th Cir. 2005) – Violation of CAL. PENAL CODE § 243.4(a) for sexual battery is a COV under 18 U.S.C. § 16(b), because the intimate touching of an unlawfully restrained person involves a substantial risk that physical force may be used.

United States v. Yanez-Rodriguez, 555 F.3d 931 (10th Cir. 2009) – An aggravated sexual battery (a forcible sex offense) under the KAN. CRIM. CODE ANN. § 21-3518 is a COV. A conviction is a forcible sex offense when the statute prohibits non-consensual sexual contact with another person. Note: Overruled by United States v. Bullcoming, 579 F.3d 1200 (10th Cir. 2009) on other grounds

• Stalking

Matter of Malta, 23 I&N Dec. 656 (BIA 2004) – A stalking offense for harassing conduct under CAL. PENAL CODE § 646.9(b) (willfully, maliciously, and repeatedly following or harassing another person and making a credible threat with intent to place person in reasonable fear for his or his family’s safety in violation of restraining order) is a COV under 16(b). Conduct that is serious, continuing, and poses a credible threat to another’s safety poses substantial risk that force will be used. But see Malta-Espinoza v. Gonzales, 478 F.3d 1080 (9th Cir. 2007) (reversing and remanding Matter of Malta, 23 I&N Dec. 656 (BIA 2004)) for improper application of categorical & modified categorical approach.

De Hoyos v. Mukasey, 551 F.3d 339 (5th Cir. 2008) – A stalking offense pursuant to S.C. CODE ANN. § 16-3-1700(B) (a pattern of words, whether verbal, written, or electronic, or a pattern of conduct that serves no legitimate purpose and is intended to cause and does cause a targeted person and would cause a reasonable person in the targeted person’s position to fear: 1. death of the person or a member of his family; 2. assault upon the person or a member of his family; 3. bodily injury to the person or a member of his family; 4. criminal sexual contact on the person or a member of his family; 5. kidnaping of the person or a member of his family; or 6. damage to the property of the person or a member of his family) is a COV. The outcome of the stalking offense is analogous to the enumerated offenses which comprise violent felonies (i.e. COV). Also if a state judgment contains a checkmark inside a box next to “non-violent” rather than a box which states “violent,” that by itself is immaterial.

Malta-Espinoza v. Gonzales, 478 F.3d 1080 (9th Cir. 2007) – Stalking offense pursuant to CAL. PENAL CODE § 646.9(a) (willfully, maliciously, and repeatedly follows or harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family) is not a COV. Although the charging document listed the conduct as “following and harassing”, an offense written in the disjunctive but plead in the conjunctive may be proven in the disjunctive. Under California law, a person can be convicted for harassing on account of conduct carried only at a long distance, by mail or telephone. Reversed and remanded Matter of Malta, 23 I&N Dec. 656 (BIA 2004) as improper application of categorical & modified categorical approach.

• Tampering with Consumer Goods

Cunningham v. Scibana, 259 F.3d 303 (4th Cir. 2001) – A person employed in the medical field replaced Demerol with saline to satisfy an addiction and was charged with tampering with consumer products. The court found this to be a COV.

• Terrorism

Matter of S-S- , 21 I&N Dec. 900 (BIA 1997) – A conviction for terrorism under IOWA CODE ANN. § 708.6 (shooting or discharging a dangerous weapon at or into building where there are people, or threatening to do so, placing people in fear of harm) involves a substantial risk that physical force may be used against victim and is a COV under 18 U.S.C. § 16(b).

Bovkun v. Ashcroft, 283 F.3d 166 (3d Cir. 2002) – A conviction for making terrorist threats under 18 PA. CONS. STAT. § 2706 is a COV under 18 U.S.C. § 16(a). Conviction requires proof of a threat to commit a COV (even if mens rea was reckless disregard), and that equals threat to use force.

United States v. White, 258 F.3d 374 (5th Cir. 2001) – An offense for a terrorist threat under TEX. PENAL CODE ANN. § 22.07 does not contain the element of “the use or attempted use of physical force” and is not a COV under 18 U.S.C. § 16(a).

Olmsted v. Holder, 588 F.3d 556 (8th Cir. 2009) – A conviction for making terrorist threats under MINN. STAT. § 609.713(1) (threatening violence with the intent to terrorize or with reckless disregard of the risk of causing such terror) is not categorically a COV because the mens rea requirement for the statute is divisible. Reviewing the complaint, which was included with the plea colloquy, the offense was found to be a COV under a modified categorical analysis.

Rosales-Rosales v. Ashcroft , 347 F.3d 714 (9th Cir. 2003) – A conviction for making terrorist threats under CAL. PENAL CODE § 422 (threats to commit crime which would result in death or great bodily injury, with the specific intent statement to be taken as threat) is a COV under 18 U.S.C. § 16(a).

• Unauthorized Use of a Motor Vehicle

Matter of Brieva -Perez, 23 I&N Dec. 766 (BIA 2005) – The offense of unauthorized use of a motor vehicle in violation of TEX. PENAL CODE ANN. § 31.07(a) is a COV under 18 U.S.C. § 16(b) and is therefore an AF under 101(a)(43)(F). Affirmed by Brieva-Perez v. Gonzales, 482 F.3d 356 (5th Cir. 2007), reaffirming United States v. Galvan-Rodriguez, 169 F.3d 217 (5th Cir. 1999).

United States v. Armendariz-Moreno, 571 F.3d 490 (5th Cir. 2009) – Unauthorized use of a motor vehicle is not an AF for sentencing purposes because the crime has no essential element of violent or aggressive conduct. See also United States v. Rodriguez-Rodriguez, 388 F.3d 466 (5th Cir. 2003) (holding the same). But see United States v. Galvan-Rodriguez, 169 F.3d 217 (5th Cir. 1999).

United States v. Galvan-Rodriguez, 169 F.3d 217 (5th Cir. 1999) – Unauthorized use of motor vehicle in Texas is a COV under 18 U.S.C. § 16(b) because there is a substantial risk of harm to person or property (person who doesn’t own car more likely to let car be damaged or cause accident). Cited with approval by United States v. Mancia-Perez, 331 F.3d 464 (5th Cir. 2003); De la Paz Sanchez v. Gonzales, 473 F.3d 133 (5th Cir. 2006); Brieva-Perez v. Gonzales, 482 F.3d 356 (5th Cir. 2007); but see United States v. Charles, 301 F.3d 309 (5th Cir. 2002) (limiting Galvan-Rodriguez to its property aspects and §16 cases). Note: United States v. Armendariz-Moreno, 571 F.3d 490 (5th Cir. 2009), and United States v. Rodriguez-Rodriguez, 388 F.3d 466 (5th Cir. 2003) do not alter the holding in Galvan-Rodriguez.

United States v. Sanchez-Garcia, 501 F.3d 1208 (10th Cir. 2007) – A conviction for Unlawful Use of Means of Transportation in violation of ARIZ. REV. STAT. § 13-1803(A)(1) is not a COV under 18 U.S.C. § 16(b) for sentencing purposes because there is a relatively low probability that destructive or violent force will be used in committing the offense.

• Unlawful Imprisonment

Dickson v. Ashcroft, 346 F.3d 44 (2d Cir. 2003) – First degree unlawful imprisonment of competent adult under N.Y. PENAL LAW § 135.10 is a COV under 18 U.S.C. § 16(b) since, whether restraining by force, intimidation, or deception, there is substantial risk force will be used. Note: Unlawful imprisonment of incompetent person or child under 16 years old is not a COV because there is not a substantial risk force will be used.

• Unlawful Wounding

Singh v. Holder, 568 F.3d 525 (5th Cir. 2009) – A conviction under VA. CODE. ANN. § 18.2-51, unlawful wounding, is a COV. Defendant failed to offer the court any hypothetical situation in which a person could violate VA. CODE ANN. § 18.2-51 without using force sufficient to constitute a COV. Due to a lack of a meritorious reason and because the offense was punishable by a term of imprisonment for at least one year, an offence under VA. CODE ANN. § 18.2-51 is an AF.

• Vehicular Homicide

Francis v. Reno, 269 F.3d 162 (3d Cir. 2001) – Pennsylvania misdemeanor conviction for vehicular homicide under 75 PA. CONS. STAT. § 3732 (recklessly or negligently causing death of another by violating a motor vehicle law other than DUI/DWI) is not a COV under 18 U.S.C. § 16(b). Section 16(b) is specifically limited to felonies. Note: Same violation is now a felony, but still not a COV. Not all violations of traffic/motor vehicle laws pose substantial risk force will be used.

United States v. Gonzalez-Lopez , 335 F.3d 793 (8th Cir. 2003) – Automobile homicide, under UTAH CODE ANN. § 76-5-207(1) (operate motor vehicle in negligent manner causing the death of another while intoxicated) is a COV under 18 U.S.C. § 16(a). Operating motor vehicle equals using force and employing force against another. This case was disagreed with by United States v. Vargas Duran, 356 F.3d 598 (5th Cir. 2004).

Omar v. INS , 298 F.3d 710 (8th Cir. 2002) – Criminal vehicular homicide under MINN. STAT. ANN. § 609.21 subd. 1(4) (drunk driver causes death) is a COV under 18 U.S.C. § 16(b). The inherent nature of crime is such that involves substantial risk that physical force may be used, because it always results in a person’s death. Intent not required for 16(b). Recognized as superseded by Leocal v. Ashcroft, 543 U.S. 1 (2004) in United States v. Torres-Villalobos, 487 F.3d 607 (8th Cir. 2007).

United States v. Gomez-Leon, 545 F.3d 777 (9th Cir. 2008) – A conviction under CAL. PENAL CODE § 192(c)(3), vehicular manslaughter while intoxicated without gross negligence, is not a COV.

• Vehicular Manslaughter

Oyebanji v. Gonzales, 418 F.3d 260 (3d Cir. 2005) – Both parties agreed that vehicular manslaughter under N.J. STAT. ANN. § 2C:11-5(b)(1) is not a COV under 18 U.S.C. § 16(a). The court held that the reasoning in Leocal v. Ashcroft, 543 U.S. 1 (2004) suggests that the offense is not a COV under 18 U.S.C. § 16(b) as the offense requires recklessness.

Lara-Cazares v. Gonzales , 408 F.3d 1217 (9th Cir. 2005)–Applying the reasoning from Leocal v. Ashcroft, the court found a conviction under CAL. PENAL CODE § 191.5(a) for gross vehicular manslaughter while intoxicated is not a COV, because the mens rea is gross negligence and the intentional use of a vehicle to cause injury is not an element of the offense.

(G) Theft/Burglary/Receipt of Stolen Property–Term of Imprisonment at least 1 year

• Theft/Receipt of Stolen Property

Generic Definition of Theft: A theft offense, including the receipt of stolen property, is “the taking of property or an exercise of control over property without consent with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent.” See Hernandez-Mancilla v. INS, 246 F.3d 1002 (7th Cir. 2001); adopted in the Ninth Circuit in United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002); adopted in the Tenth Circuit by United States v. Vasquez-Flores, 265 F.3d 1122 (10th Cir. 2001).

Matter of Cardiel-Guerrero, 25 I&N Dec. 12 (BIA 2009) – Receipt of stolen property under CAL. PENAL CODE § 496(a) is categorically an AF. The statute, inter alia, prohibits the concealing, selling, or withholding of stolen or extorted property, or aiding in the same, knowing it to have been so stolen or obtained, this falling squarely within the generic and contemporary meaning of receipt of stolen property.

Matter of Garcia-Madruga, 24 I&N Dec. 436 (BIA 2008) – Conviction of welfare fraud under R.I. GEN. LAWS § 40-6-15 of is not a “theft offense” under INA § 101(a)(43)(G) because it does not consist of the taking of, or exercise of control over, property without consent and with criminal intent to deprive the owner of the rights and benefits of ownership, even if such deprivation is less than total or permanent.

Matter of Song, 23 I&N Dec. 173 (BIA 2001) – If criminal court vacates one-year prison sentence for a theft offense and revises it to under one year then the conviction is not an AF.

Matter of Bahta, 22 I&N Dec. 1381 (BIA 2000) – Attempted possession of stolen property under NEV. REV. STAT. §§ 193.330 and 205.275 are attempted theft offenses and AF’s under §§ 101(a)(43)(G) and (U). Theft is the knowing receipt, possession, or retention or property from its rightful owner. The Tenth Circuit declined to follow this decision in United States v. Vasquez-Flores, 265 F.3d 1122 (10th Cir. 2001).

Matter of V-Z-S-, 22 I&N Dec. 1338 (BIA 2000) – Unlawful driving and taking of a vehicle in violation of CAL. VEH. CODE § 10851 is a theft offense and therefore an AF. Theft is the taking of property with the criminal intent to deprive owner of the rights and benefits of ownership, even if deprivation is less than total or permanent. But see United States v. Vidal, 504 F.3d 618 (9th Cir. 2007) (holding that a conviction in violation of CAL. VEH. CODE § 10851(a) is not categorically a theft offense).

Almeida v. Holder, 588 F.3d 778 (2d Cir. 2009) – Conspiring to commit second-degree larceny in violation of CONN. GEN. STAT. §§ 53a-123 categorically constitutes a “theft offense” under INA § 101(a)(43)(G), as ‘theft offense” is more broadly-defined than common-law larceny and the state law is not divisible. The Court distinguished the case from Jaggernauth v. U.S. Attorney Gen., 432 F.3d 1346 (11th Cir. 2005).

Abimbola v. Ashcroft, 378 F.3d 173 (2d Cir. 2004) – A larceny conviction under Connecticut law was found to be an AF theft. The court also disagreed with United States v. Corona-Sanchez, 234 F.3d 449 (9th Cir. 2000) and found that theft of services may be a theft crime.

Ilchuk v. Attorney Gen., 434 F.3d 618 (3d Cir. 2006) – A person who diverted ambulance calls from an ambulance service in order to provide a service of his own committed a theft of services under 18 PA. CONST. STAT. § 3926 (a person is guilty of theft if, having control over the dispositions of services of another to which he is not entitled, he knowingly diverts such services to his own benefit or to the benefit of another not entitled thereto) and was guilty of a theft offense under 8 U.S.C. § 1101(a)(43)(G), because the crime required the taking or exercising of control over something of value knowing that the owner had not consented.

Nugent v. Ashcroft, 367 F.3d 162 (3d Cir. 2004) – Theft by deception (intentionally obtains or withholds property of another by deception) under 18 PA. CONS. STAT. § 3922 is not an AF. The court concluded that a theft offense that also involves fraud and deceit must satisfy the elements of both §§ 101(a)(43)(G) and 101(a)(43)(M)(i) to constitute an AF. Theft by deception is a theft offense under § 101(a)(43)(G), however, to be an AF, the loss to the victim must be greater than $10,000 to satisfy § 101(a)(43)(M)(I).

United States v. Graham, 169 F.3d 787 (3d Cir. 1999) – State law misdemeanor is an AF under § 101(a)(43)(G) if it is a theft offense and the actual term of imprisonment is at least one year. New York petit larceny (class A misdemeanor) is a theft offense/AF because term of imprisonment was exactly one year.

Soliman v. Gonzales, 419 F.3d 276 (4th Cir. 2005) – Under Virginia law, a conviction for credit card fraud totaling less than $2,000 was not a theft offense that constituted an AF since the fraud encompassed activities that did not involve the taking of property.

Nolos v. Holder, 611 F.3d 279 (5th Cir. 2010) – A conviction for theft under Nevada law, Nev. Rev. Stat. § 205.0832(1)(b) – alien knowingly, feloniously, and without lawful authority, using services or property entrusted to him or her or placed in his or her possession, with a value of $250 or more – is an AF theft offense.

Martinez v. Mukasey, 519 F.3d 532 (5th Cir. 2008) – Conviction of bank fraud in violation of 18 U.S.C. § 1344 is not an AF under INA § 101(a)(43)(G) because it does not require that property be acquired without consent. Property be obtained by fraud, which occurs with unlawfully obtained consent. Bank Fraud in violation 18 U.S.C. § 1344 is, however, an AF under INA § 101(a)(43)(M)(i) because it “necessarily entails fraud or deceit.” Also, please see Martinez v. Mukasey holding that aliens who adjust their status to an LPR after entering the United States are not barred from seeking a 212(h) waiver of inadmissibility for an aggravated felony conviction. Based on the plain statutory language, an alien must be admitted as an LPR and then commit an aggravated felony in order for the 212(h) waiver bar to apply.

Burke v. Mukasey, 509 F.3d 695 (5th Cir. 2007) – Conviction of criminal possession of stolen property in the third degree under N.Y. PENAL LAW § 165.50 is a theft offense and thus an AF because “the broad terms used in the generic definition of “theft offense” under 8 U.S.C. § 1101(a)(43)(G) easily embrace the New York criminal statute.”

United States v. Dabeit, 231 F.3d 979 (5th Cir 2000), cert. denied, 531 U.S. 1202 (2001) – Theft is defined as the act of stealing (Black’s Law). Conspiring to perpetrate a checking and savings account kite scheme under 18 U.S.C. § 2113(b) involves the taking of another’s property and is an AF. Note: Abrogated on other grounds by United States v. Reyna, 358 F.3d 344 (5th Cir. 2004).

Hernandez-Mancilla v. INS, 246 F.3d 1002 (7th Cir. 2001) – Possession of a stolen motor vehicle under Illinois law is an AF. The alien exercised control over another’s property without consent. Note: This case created the generic definition of theft.

Sanchez v. Holder, 614 F.3d 760 (8th Cir. 2010) – Because alien had conceded removability based on convictions of (1) 2 or more crimes of moral turpitude and (2) a controlled substance violation, the DHS was not required to prove that alien had committed an AF. Rather, for purposes of showing eligibility for cancellation of removal, the burden of proof was on the alien to show that he had not committed an AF.

United States v. Mejia-Barba, 327 F.3d 678 (8th Cir. 2003) – Identity theft (person takes another’s identity with intent to fraudulently benefit by obtaining credit/property/services) under IOWA CODE § 715A.8 is an AF.

United States v. Demirbas, 331 F.3d 582 (8th Cir. 2003) – Stealing under Missouri law is an AF even though the alien’s four year sentence was suspended (still counts as part of term of imprisonment)

Ramirez-Villalpando v. Holder, 601 F.3d 891 (9th Cir. 2010) – A conviction under CAL. PENAL CODE § 487(a) is not categorically an AF. However, under the modified categorical approach, the court looked to the abstract of judgment and felony complaint to find that the alien’s conviction for grand theft pursuant to CAL. PENAL CODE § 487(a) was for theft of personal property, rather than services, and was, therefore, an AF.

Alvarez-Reynaga v. Holder , 596 F.3d 534 (9th Cir. 2010) – Receipt of a stolen vehicle under section 496d(a) of the CAL. PENAL CODE is categorically an AF as a theft offense under INA § 101(a)(43)(G).

Verdugo-Gonzalez v. Holder , 581 F.3d 1059 (9th Cir. 2009) – A conviction for receipt of stolen property under CAL. PENAL CODE § 496(a) is categorically a “theft offense” under INA § 101(a)(43)(G).

Carrillo-Jaime v. Holder, 572 F.3d 747 (9th Cir. 2009) – A conviction under CAL. VEH. CODE § 10801, prohibiting owning and operating a “chop shop,” is not categorically an AF. The offense does not necessarily contain the element of “taking and exercising control over property without consent.” An individual may obtain a vehicle or a vehicle part by theft, fraud, or conspiracy to defraud and do so with a valid consent of the owner. However, if the Government demonstrates a lack of consent, then removability under INA § 101(a)(43)(G) may be established for this offense under the modified categorical approach.

Mandujano-Real v. Mukasey, 526 F.3d 585 (9th Cir. 2008) – A conviction for identity theft under OR. REV. STAT. § 165.800 is not categorically a theft offense under INA § 101(a)(43)(G).

Penuliar v. Mukasey, 528 F.3d 603 (9th Cir. 2008) – Unlawfully taking or driving a vehicle in violation of California Vehicle Code § 10851(a) is not an AF because an alien could be convicted of violating this statute for merely being an accessory after the fact (which would be conduct that falls outside generic definition of theft offense). Petition for certiorari granted, judgment vacated and case remanded by Gonzales v. Penuliar, 549 U.S. 1178 (2007).

United States v. Vidal, 504 F.3d 1072 (9th Cir. 2007) – Conviction under CAL. VEH. CODE § 10851(a), which criminalizes “theft and unlawful driving or taking of a vehicle” is not categorically a theft offense, and thus not categorically an AF because it applies not only to principals and accomplices but also to accessories after the fact. Under the modified categorical approach the record did not establish that by pleading guilty, Vidal admitted to all the elements of generic theft.

Nevarez-Martinez v. INS, 326 F.3d 1053 (9th Cir. 2003) – Theft of means of transportation under ARIZ. REV. STAT. ANN. § 13-1814 subsections 2, 4, and 5, is not an AF since there is no criminal intent to deprive the owner.

Huerta-Guevara v. Ashcroft, 321 F.3d 883 (9th Cir. 2003) – Possession of a stolen vehicle under ARIZ. REV. STAT. ANN. § 13-1802 requires use of the categorical approach to determine if there is an intent to deprive.

Randhawa v. Ashcroft, 298 F.3d 1148 (9th Cir. 2002) – Using the categorical approach, the court determined that possession of stolen mail obtained in violation of 18 U.S.C. § 1708 is an AF.

United States v. Perez-Corona, 295 F.3d 996 (9th Cir. 2002) – Unlawful use of means of transportation under ARIZ. REV. STAT. ANN. § 13-1803 is not an AF since the statute does not require a showing criminal intent to deprive the owner.

United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002) – Petty theft under CAL. PENAL CODE § 484(a) is not an AF. Note: The court adopted the generic definition of theft. Note: Superseded by statute on other grounds.

United States v. Sanchez-Garcia, 501 F.3d 1208 (10th Cir. 2007) – Conviction for unlawful use of means of transportation under ARIZ. REV. STAT. ANN. § 13-1803(A)(1) is not categorically a COV under 18 U.S.C. § 16(b) and thus not an AF because “knowingly taking unauthorized control over another’s means of transportation” encompasses a broad range of conduct that does not involve a substantial risk that physical force against the person or property of another will be used in the course of committing the offense. United States v. Dabeit, 231 F.3d 979 (5th Cir 2000), cert. denied, 531 U.S. 1202 (2001) – Theft is defined as the act of stealing (Black’s Law). Conspiring to perpetrate a checking and savings account kite scheme under 18 U.S.C. § 2113(b) involves the taking of another’s property and is an AF. The case was subsequently abrogated on other grounds by United States v. Reyna, 358 F.3d 344 (5th Cir. 2004).

United States v. Vasquez-Flores, 265 F.3d 1122 (10th Cir. 2001) – Attempting to knowingly receive or transfer a stolen motor vehicle under UTAH STAT. § 41-1a-1316 is an AF because by admitting to knowingly possessing stolen vehicle, alien exercised control over car without consent. Note: Court adopted generic definition of theft.

Jaggernauth v. U.S. Attorney Gen., 432 F.3d 1346 (11th Cir. 2005) – Conviction in violation of FLA. STAT. § 812.014(1) is not categorically a theft offense because a conviction requires either intent to deprive another of property or to appropriate property.

United States v. Christopher, 239 F.3d 1191 (11th Cir. 2001), cert. denied, 581 U.S. 877 (2001) – State law misdemeanor can be an AF if it is a theft offense for which the term of imprisonment is at least one year.

• Burglary

Taylor v. United States, 495 U.S. 575 (1990) – Supreme Court defines burglary as unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.

Matter of Perez, 22 I&N Dec. 1325 (BIA 2000) – Burglary of a vehicle under TEX. PENAL CODE ANN. § 30.04 is not a burglary offense for AF purposes. Board relied on Taylor v. United States, 495 U.S. 575 (1990) (a car is not a building).

United States v. Hidalgo-Macias, 300 F.3d 281 (2d Cir. 2002) – Term of imprisonment is the actual sentence imposed. Serve jail time, get probation, probation revoked and more jail time served, the actual sentence is equal to the total time served in jail.

Lopez-Elias v. Reno, 209 F.3d 788 (5th Cir. 2000) – Burglary of a vehicle with intent to commit theft under TEX. PENAL CODE ANN. § 30.04(a) is not a burglary offense. Uses Taylor v. United States, 495 U.S. 575 (1990) definition (a car is not a building).

Solorzano-Patlan v. INS, 207 F.3d 869 (7th Cir. 2000) – Burglary of automobile with intent to commit theft under 720 ILL. COMP. STAT. § 5/19-1(a) is not a burglary offense based on Taylor v. United States, 495 U.S. 575 (1990) because a car is not a building.

Ngaeth v. Mukasey, 545 F.3d 796 (9th Cir. 2008) – A conviction for an attempted theft offense of second degree burglary under CAL. PENAL CODE § 459 is an AF under INA §§ 101(a)(43)(G) and (U). The California statute states “[e]very person who enters any . . . vehicle . . . when the doors are locked . . . with intent to commit grand or petit larceny or any felony is guilty of burglary.” However, under Ye v. INS, 214 F.3d 1128 (9th Cir. 2000), CAL. PENAL CODE § 459 is not an AF as a burglary offense or a COV. It is an AF as an attempted theft offense.

Nunes v. Ashcroft, 375 F.3d 805 (9th Cir. 2004) – First degree burglary under CAL. PENAL CODE § 459 is an AF.

Ye v. INS, 214 F.3d 1128 (9th Cir. 2000) – Vehicle burglary under CAL. PENAL CODE § 459 is not a burglary for AF purposes since a car is not a building or structure.

(H) Demand for or Receipt of Ransom (18 U.S.C. §§ 875, 876, 877, or 1202)

(I) Child Pornography (18 U.S.C. §§ 2251, 2251A, or 2252)

Aguilar-Turcios v. Holder , 582 F.3d 1093 (9th Cir. 2009) – A conviction under Article 92 of the Uniform Code of Military Justice (U.C.M.J.) for violating a “lawful general order” is not categorically an AF under INA § 101(a)(43)(I). A modified categorical approach cannot be used because the Article 92 prohibits uses involving “pornography” but not specifically “a visual depiction of a minor engaging in sexually explicit conduct,” which is an essential element of the generic crime of child pornography.

(J) RICO (18 U.S.C. § 1962) sentence of 1 year or more may be imposed for transmission of wagering info (18 U.S.C. § 1084)–for second or subsequent offenses and sentence of 1 year or more may be imposed or Gambling Offenses (18 U.S.C. § 1955)–sentence of 1 year or more may be imposed (K)(i) Owning, Controlling, Managing, Supervising Prostitution Business (K)(ii) Transportation for Prostitution if Committed for Commercial Advantage (18 U.S.C. §§ 2421, 2422, 2423)

• For Commercial Advantage

Matter of Gertsenshteyn, 24 I&N Dec. 111 (BIA 2007) – The categorical approach to determining whether a criminal offense satisfies a particular ground of removal does not apply to the inquiry of whether a violation of 18 U.S.C. § 2422(a) was committed for “commercial advantage”. Where, as here, Congress has defined an AF to include a component (e.g., “commercial advantage”) that is neither an element of the offense nor a basis for a sentencing enhancement, it would defeat the statute to require application of the categorical or modified categorical approach. But see Gertsenshteyn v. U.S. Dept. of Justice, 544 F.3d 137 (2d Cir. 2008), rev’g Matter of Gertsenshteyn (remanding for improperly rejecting the categorical and modified categorical approaches in determining commercial advantage). Gertsenshteyn v. U.S. Dept. of Justice, 544 F.3d 137 (2d Cir. 2008) – The Second Circuit disagreed with the BIA’s holding in Matter of Gertsenshteyn, 24 I&N Dec. 111 (BIA 2007) (the categorical approach to determining whether a criminal offense satisfies a particular ground of removal does not apply to the inquiry of whether a violation of 18 U.S.C. § 2422(a) was committed for “commercial advantage”). The court found that the BIA improperly rejected the categorical and modified categorical approaches in determining commercial advantage, so it remanded for the BIA to determine whether either approach should be applied, and then to apply the proper legal framework.

(K)(iii) Peonage/Slavery/Involuntary Servitude (18 U.S.C. §§ 1581, 1582, 1583, 1584, 1585, 1588)

(L)(i) Gathering/Transmitting National Defense Information (18 U.S.C. § 793); Disclosure Classified Info (18 U.S.C. § 798); Sabotage (18 U.S.C. § 2153); or Treason (18 U.S.C. §§ 2381, 2382)

(L)(ii) Protecting Identity of Undercover Intelligence Agents (50 U.S.C. § 421)

(L)(iii) Protecting Identify of Undercover Agents (Nationality Security Act of 1947 § 601)

(M)(i) Offense Involving Fraud or Deceit Causing Loss to Victim Over $10,000

Nijhawan v. Holder, 129 S. Ct. 2294 (2009) – The $10,000 threshold refers to the particular circumstances in which an offender committed a fraud or deceit crime on a particular occasion rather than to an element of the fraud or deceit crime.

Matter of Babaisakov, 24 I&N Dec. 306 (BIA 2007) – When considering whether a conviction for an offense involving fraud or deceit is one “in which the loss to the victim or victims exceeds $10,000” under INA § 101(a)(43)(M)(i), an IJ is not restricted to “record of conviction” evidence but may consider any evidence admissible in removal proceedings bearing on the amount of loss to the victim. The BIA recognized that the ruling represents a “departure from the precepts that have been presumed to apply in immigration hearings involving AF charges arising under section 101(a)(43)(M)(i) of the Act.” It left “for another day any questions that may arise with respect to circuit law that may be in tension with this decision, as we ordinarily follow circuit law in cases arising within the particular circuit and the grounds for any departure would need to be developed in the context of specific cases.”

Matter of Onyido, 22 I&N Dec. 552 (BIA 1999) – Submitting a false claim with intent to defraud under IND. CODE ANN. § 35-43-5-4-(1) (unsuccessful scheme to obtain money from insurance company) was an attempt to commit a fraud in which the loss exceeds $10,000 and therefore an AF.

De Vega v. Gonzales, 503 F.3d 45 (1st Cir. 2007) – Conviction for false representation to the department of public welfare under MASS. GEN. LAWS ch. 18, § 5B was AF because fraud was a necessary element and record showed loss to the victim of more than $10,000.

Conteh v. Gonzales, 461 F.3d 45 (1st Cir. 2006) – Conspiracy to commit bank fraud under 18 U.S.C. section 371 was found to be an AF under section 101(a)(43)(M)(i) of the Act.

Ljutica v. Holder, 588 F.3d 119 (2d Cir. 2009) – Attempted bank fraud under 18 U.S.C. § 1344 qualifies as an AF under INA § 101(a)(43)(M) and (U). Only the intended loss, not the actual loss, need be over $10,000. If R was not charged with an AF in deportation proceedings because the Act did not yet apply to him, res judicata does not preclude a finding in naturalization proceedings that R was convicted of an AF.

Pierre v. Holder , 588 F.3d 767 (2d Cir. 2009) – INA § 101(a)(43)(M) requires an actual loss of $10,000 to the victim and subsection (U)(attempt or conspiracy to commit an AF) is not a necessarily included offense of subsection (M).

Dulal-Whiteway v. DHS, 501 F.3d 116 (2d Cir. 2007) – Information in PSR or restitution order could not be relied upon to establish that alien’s offense involved fraud of deceit with loss exceeding $10,000. When applying the modified categorical approach, for convictions following a trial, the BIA may rely only upon facts actually and necessarily found beyond a reasonable doubt by a jury or judge in order to establish the elements of the offense, as indicated by a charging document or jury instructions. For convictions following a plea, the BIA may rely only upon facts to which a defendant actually and necessarily pleaded in order to establish the elements of the offense, as indicated by a charging document, written plea agreement, or plea colloquy transcript. Abrogated by Nijhawan v. Holder, 129 S. Ct. 2294 (2009) (holding that the $10,000 threshold refers to particular circumstances rather than an element of the fraud crime).

Evangelista v. Ashcroft, 359 F.3d 145 (2d Cir. 2004) – Attempting to evade/defeat tax under 26 U.S.C. § 7201 was found to be an AF. An offense relating to tax evasion is an inclusive phrase, not restrictive. See also Sansone v. United States, 380 U.S. 343 (1965) (holding that § 7201 includes the offense of willfully attempting to evade or defeat the assessment or the payment of any tax).

Kaplun v. Attorney Gen., 602 F.3d 260 (3d Cir. 2010) – Using the information, a guilty plea to that information, the PSR, and the documented lack of objection to the PSR, the court determined that the alien’s conviction for securities fraud with a monetary loss in excess of $10,000 was an AF.

Alaka v. Attorney Gen., 456 F.3d 88 (3d Cir. 2006) – A conviction under 18 U.S.C. §1344 for bank fraud is a “fraud offense” within under 8 U.S.C. § 1101(a)(43)(M)(i), but to be an AF, the convicted offense must have resulted in losses greater than $10,000. Only losses stemming from convicted offenses may be considered. To determine the amount of loss, the Court looked to the plea agreement, not the indictment or sentence. In this case, alien was not convicted of AF, despite the district court’s finding that the intended loss from the fraud was over $47,000; the alien was convicted on only one of three and the actual loss was less than $5,000.

Nugent v. Ashcroft, 367 F.3d 162 (3d Cir. 2004) – Theft by deception (intentionally obtains or withholds property of another by deception) under 18 PA. CONS. STAT. § 3922 is not an AF. The court concluded that a theft offense that also involves fraud and deceit (such as theft by deception) must satisfy the elements of both §§ 101(a)(43)(G) and (M) to be an AF. Theft by deception is a theft offense under (G), however, to be an AF the loss to the victim must be greater than $10,000 to satisfy (M).

Ki Se Lee v. Ashcroft, 368 F.3d 218 (3d Cir. 2004) – Filing false tax returns in violation of 26 U.S.C. § 7206(1) of the IRC is not an AF. This section (M) does not apply to tax offenses.

Munroe v. Ashcroft, 353 F.3d 225 (3d Cir. 2003) -Amount of loss must be over $10,000 to be an AF. Amount of restitution is not controlling to determine amount of loss (but can be useful to determine amount o floss if conviction record is unclear). Theft by deception under N.J. STAT. ANN. § 2C:20-4 is a crime involving fraud or deceit.

Valansi v. Ashcroft, 278 F.3d 203 (3d Cir. 2002) – Under 18 U.S.C. § 656, embezzlement with specific intent to defraud is an offense involving fraud or deceit (and an AF is loss was over $10,000). Embezzlement with only the specific intent to injure is not an offense involving fraud or deceit. In this case, the court declined to follow Moore v. Ashcroft, 251 F.3d 919 (11th Cir. 2001).

Martinez v. Mukasey, 519 F.3d 532 (5th Cir. 2008) – Conviction of bank fraud in violation of 18 U.S.C. § 1344 is an AF under INA § 101(a)(43)(M)(i) because it “necessarily entails fraud or deceit.” Bank Fraud violation 18 U.S.C. § 1344 is not an AF, however, under INA § 101(a)(43)(G) (theft offense) because it does not require that property be acquired without consent. Also, please see Martinez v. Mukasey holding that aliens who adjust their status to an LPR after entering the United States are not barred from seeking a 212(h) waiver of inadmissibility for an aggravated felony conviction. Based on the plain statutory language, an alien must be admitted as an LPR and then commit an aggravated felony in order for the 212(h) waiver bar to apply.

Arguelles-Olivares v. Mukasey, 526 F.3d 171 (5th Cir. 2008) – A federal tax offense other than tax evasion can be an AF under INA § 101(a)(43)(M); thus, a conviction under 26 U.S.C. § 7206(1) for filing a false federal tax return is an AF under INA § 101(a)(43)(M) if the loss exceeds $10,000.

Patel v. Mukasey, 526 F.3d 800 (5th Cir. 2008) – The offense of misprision of a felony under 18 U.S.C. § 4 involving a loss to the victim that exceeds $10,000 is categorically an AF because the offense necessarily entails the act of intentionally giving a false impression, i.e., the false impression that the earlier felony never occurred. Thus, the crime entails fraud or deceit and is thus an AF.

Martinez v. Mukasey, 508 F.3d 255 (5th Cir. 2007) – Offenses of insurance fraud under TEX. PENAL CODE ANN. §§ 35.02(a) & (b) are convictions that “involve fraud or deceit,” since both offenses share the element that the offender act “with intent to defraud or deceive an insurer.” The Court applied the modified categorical approach to find that the loss to the victim exceeded $10,000, and thus the crime was an AF. The Court rejected Petitioner’s argument that in determining whether the loss to the victim exceeded $10,000 the Court should ignore the total restitution amount and instead equate loss to victim with the restitution amount he actually paid.

James v. Gonzales, 464 F.3d 505 (5th Cir. 2006) – Aiding and abetting bank fraud (18 U.S.C. §§ 2 and 1344) necessarily entails, or has as at least one element, fraud or deceit for the purposes of 8 U.S.C. § 1101(a)(43)(M)(i). The court may look beyond the conviction and plea agreement to the indictment or restitution amount to determine the amount of actual loss.

Omari v. Gonzales, 419 F.3d 303 (5th Cir. 2005) – A violation of paragraph one of 18 U.S.C. § 2314 is not an AF pursuant to § 101(a)(43(M) or (U) of the Act. The provision does not necessarily entail fraud or deceit, because it can be violated by transporting or transferring goods known to be stolen.

Kellerman v. Holder, 592 F.3d 700 (6th Cir. 2010) – Convictions under 18 U.S.C. §§ 371 (conspiracy to commit an offense or to defraud United States) and 1001 (fraud and false statements or entries) both constitute AFs as defined under INA § 101(a)(43)(M)(i). See Nijhawan v. Holder, 129 S. Ct. 2294 (2009).

Eke v. Mukasey, 512 F.3d 372 (7th Cir. 2008) – Alien’s conviction for identity theft in violation of ch. 720 ILL. COMP. STAT. § 5/16G-15 is an AF crime involving fraud or deceit in which the loss to the victim[s] exceeds $10,000. Court suggested in dicta that it believed intended loss to the victim could be considered in assessing whether the loss exceeded $10,000.

Tian v. Holder , 576 F.3d 890 (8th Cir. 2009) – Losses attributed to an internal investigation to assess the damage caused by alien’s unauthorized access to a computer network are related to alien’s fraud, and, thus, are included in determining whether the loss to the victim “exceeds $10,000.”

Carlos-Blaza v. Holder , 611 F.3d 583 (9th Cir. 2010) – A conviction under 18 U.S.C. § 656 for misapplication of funds is divisible in that not every conviction involves intent to defraud but may include only intent to injure. However, under a modified categorical approach, the court found that the alien had been convicted of an AF under § 101(a)(43)(M)(i) because in the plea agreement, the alien admitted she knowingly stole, embezzled, or misapplied moneys as a bank employee.

Kawashima v. Holder, 615 F.3d 1043 (9th Cir. 2010) – The court considered, for the third time, the removal orders of the petitioners after the issuance of Nijhawan v. Holder, 129 S. Ct. 2294 (2009), first holding that a federal tax offense other than tax evasion under 26 U.S.C. § 7201, which is specifically referenced in INA § 101(a)(43)(M)(ii), may constitute AF under INA § 101(a)(43)(M)(i). Alien’s conviction for subscribing to a false statement on a tax return, in violation of 26 U.S.C. § 7206(1), constituted an AF because it necessarily involved “fraud or deceit” and, applying the “circumstance-specific” approach since amount of loss is not an element of the crime under Nijhawan, the Board had followed fundamentally fair procedures in determining that the loss amounted to more than $10,000. A conviction for aiding and assisting in the preparation of a false tax return, in violation of 26 U.S.C. § 7206(2), necessarily involved “fraud or deceit” but the Court remanded to the Board to determine what type of evidence it may consider to find the total loss suffered by the government.

Kharana v. Gonzales, 487 F.3d 1280 (9th Cir. 2007) – Alien’s conviction for obtaining money by false pretenses in violation of CAL. PENAL CODE § 532 is a crime involving fraud or deceit, and as the respondent pled nolo contendere to defrauding four victims of “$11,000, $23,000, $17,000, and $26,250, respectively”, the crime caused more than $10,000 in losses making her an aggravated felon. The court rejected the alien’s argument that because she repaid the stolen money (after her fraudulent scheme was discovered), the amount of loss was zero.

Ferrierra v. Ashcroft, 390 F.3d 1091 (9th Cir. 2004) – California conviction for submitting false statement to obtain welfare involved fraud or deceit and was found to be an AF. The Cal offense requires fraud in an amount greater than $400.00, but court can look to plea agreement to see if restitution is in excess of $10,000, is so then it is an AF.

Chang v. INS, 307 F.3d 1185 (9th Cir. 2002) – Federal bank fraud offense of knowingly cashing a counterfeit check in the amount of $650.30 was not an AF. Court further ruled it is improper to rely on PSR statements that contradict explicit language in plea agreement. Restitution amount does not equal amount of loss.

Hamilton v. Holder , 584 F.3d 1284 (10th Cir. 2009) – In order to determine whether a loss meets the $10,000 requirement, it is proper for the IJ to consider information contained in the PSR. See Nijhawan v. Holder, 129 S. Ct. 2294 (2009).

Khalayleh v. INS, 287 F.3d 978 (10th Cir. 2002) – Bank fraud is a crime involving fraud or deceit. Petitioner pled guilty to a charge that alleged a scheme to defraud. Therefore, amount of loss was measured by the entire scheme, not just one specific check. This amount was over $10,000 and was therefore an AF.

Obasohan v. U.S. Attorney Gen., 479 F.3d 785 (11th Cir. 2007) – Conviction for conspiracy to produce, use and traffic in counterfeit access devices, in violation of 18 U.S.C. § 1029(b)(2) did not involve loss to the victim in excess of $10,000 despite a restitution order of $37,000 because the respondent pled guilty to “no loss”, the government conceded there was no proof of loss at the guilty plea hearing, and the proof of the $37,000 loss was based on conduct external to the underlying guilty plea that was alleged only in the Pre-sentence Investigation Report (PSI). Abrogated by Nijhawan v. Holder, 129 S. Ct. 2294 (2009) (holding that the $10,000 threshold refers to particular circumstances rather than an element of the fraud crime).

Balogun v. U.S. Attorney Gen., 425 F.3d 1356 (11th Cir. 2005) – Embezzling more than $10,000 from the United States government was an AF within the meaning of the exception from waiver of inadmissibility since the federal government did qualify as a “victim” within the definition for AF.

Moore v. Ashcroft, 251 F.3d 919 (11th Cir. 2001) – Misapplication of bank funds under 18 U.S.C. § 656 necessarily was a fraud/deceit offense and an AF if total amount was over $10,000.

(M)(ii) Tax Evasion Exceeding $10,000 (IRS Code of 1986 § 7201)

(N) Alien Smuggling (8 U.S.C. § 1324; INA § 274(a) (1) (A) or (2))

Matter of Ruiz-Romero, 22 I&N Dec. 486 (BIA 1999) – The parenthetical “relating to alien smuggling” is merely descriptive and does not limit the types of convictions that may be regarded as an AF under INA § 274(a)(1)(A) or (2). Likewise, the exclusion and deportation grounds in INA §§212(a)(6)(E)(i) and 241(a)(1)(E)(i) do not limit the scope of offenses described in INA § 274(a)(1)(A) or (2). Aff’d by Ruiz-Romero v. Reno, 205 F.3d 837 (5th Cir. 2000); see also United States v. Salas-Mendoza, 237 F.3d 1246 (10th Cir. 2001); United States v. Galindo-Gallegos, 244 F.3d 728 (9th Cir. 2001).

Matter of Alvarado-Alvino, 22 I&N Dec. 718 (BIA 1999) – Offenses under INA § 275(a) (8 U.S.C. § 1325(a)) (improper entry), are not AF’s. Not every offense relating to alien smuggling is an AF, only those described in §§ 274(a)(1)(A) and (2). Aff’d by Rivera-Sanchez v. Reno, 198 F.3d 545 (5th Cir. 1999).

Patel v. Ashcroft, 294 F.3d 465 (3d Cir. 2002) – Harboring an alien under § 274(a)(1)(A)(iii) is an AF relating to alien smuggling and is not limited/restricted to actions aimed at helping an alien obtain unlawful admission or entry. All offenses in § 274(a)(1)(A) relate to alien smuggling. Note: Superseded by statute on other grounds.

Garrido-Morato v. Gonzales, 485 F.3d 319 (5th Cir. 2007) – Amended definition of “AF” contained in IIRIRA rendering alien’s pre-IIRIRA alien harboring conviction an AF was not impermissibly retroactive.

Ruiz-Romero v. Reno, 205 F.3d 837 (5th Cir. 2000) – Transporting illegal aliens between two points within the United States in violation of § 274(a)(1)(A)(ii) is an offense relating to alien smuggling (and involves more than just smuggling) and is therefore an AF. Aff’ing Matter of Ruiz-Romero, 22 I&N Dec. 486 (BIA 1999).

Rivera-Sanchez v. Reno, 1998 F.3d 545 (5th Cir. 1999) – Conviction in violation of 8 U.S.C. § 1325(a) “is outside the ambit of § 1101(a)(43)(N), which is explicitly confined to convictions under § 1324(a).” Court agreed with the BIA’s analysis in Matter of Alvarado-Alvino, 22 I&N Dec. 718 (BIA 1999).

United States v. Monjaras-Castaneda, 190 F.3d 326 (5th Cir. 1999) – All offenses under 8 U.S.C. § 1324(a) involve the transporting, movement, and hiding of aliens into and within the United States) are offenses relating to alien smuggling and therefore AF’s. See also United States v. Solis-Campozano, 312 F.3d 164 (5th Cir. 2002).

Gavilan-Cuate v. Yetter, 276 F.3d 418 (8th Cir. 2002) – Conspiracy to transport and harbor illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(i) and (iii) constitute AF’s.

United States v. Guzman-Mata, 579 F.3d 1065 (9th Cir. 2009) – A conviction for bringing in and harboring aliens under 8 U.S.C. § 1324(a)(1)(A) is categorically an alien smuggling offense within U.S.S.G. 2L1.2(b)(1)(A), as defined by INA § 101(a)(43)(N). The family exception is not an element of the generic alien smuggling offense such that the government would be required to prove that the family exception to alien smuggling enhancement did not apply.

United States v. Galindo-Gallegos, 244 F.3d 728 (9th Cir. 2001): Conviction of illegal transportation of aliens in violation of INA § 1324(a)(1)(A)(iii) is an AF for sentencing purposes. The parenthetical “relating to alien smuggling” is descriptive, not limiting. See also Matter of Ruiz-Romero, 22 I&N Dec. 486 (BIA 1999).

Castro-Espinoza v. Ashcroft, 257 F.3d 1130 (9th Cir. 2001) – Harboring illegal aliens and aiding/abetting the harboring of illegal alien’s in violation of 8 U.S.C. § 1324(a)(1)(A)(iii) is an AF under § 101(a)(43)(N).

United States v. Salas-Mendoza, 237 F.3d 1246 (10th Cir. 2001) – Conviction of illegal transportation of aliens in violation of INA § 1324(a)(1)(A)(iii) is an AF for sentencing purposes. The parenthetical “relating to alien smuggling” is descriptive, not limiting. See also Matter of Ruiz-Romero, 22 I&N Dec. 486 (BIA 1999).

(O) Improper Entry/Reentry By Alien Previously Deported for a § 101(a)(43) Offense (8 U.S.C. §§ 1325(a) or 1326; INA §§ 275(a) or 276)

Note: IIRAIRA changes apply under § 276(b) only to violations of § 276(a) (reentry after deportation) occurring on or after date of enactment (9/30/96). Section 321(c) of IIRAIRA).

Matter of Alvarado-Alvino, 22 I&N Dec. 718 (BIA 1999) – Offense under INA § 275(a) (improper entry) is an AF, but only if alien was previously deported for AF. See Rivera-Sanchez v. Reno, 198 F.3d 545 (5th Cir. 1999) (upholding BIA’s decision).

(P) Falsely Making/Forging/Counterfeiting/Mutilating/Altering Passport or Instrument (18 U.S.C. § 1543) or Document Fraud-term of imprisonment is at least 12 months (18 U.S.C. § 1546(a))


(Q) Failure to Appear for Service of Sentence When Underlying Offense Punishable by Five Years or More


(R) Commercial Bribery, Counterfeiting, Forgery or Trafficking in Vehicles the ID Numbers of Which Have Been Altered–term of imprisonment at least 1 year

• Commercial Bribery

Matter of Chrysanth George Gruenangerl, 25 I&N Dec. 351 (BIA 2010) – Conviction of Bribery of a Public Official in violation of 18 U.S.C. § 201(b)(1)(A) is not an offense relating to commercial bribery because “[i]t is immaterial whether the act is expected to result in pecuniary gain or loss.” Applying the modified categorical approach, the offense is not one relating to commercial bribery because “the statute, on its face, does not define an offense that is sufficiently related to commercial bribery,” and “the respondent’s particular purpose does not render the offense one ‘relating to’ commercial bribery of a private sector individual.” The Court declined to read the phrase “relating to” broadly so as to cover a violation of 18 U.S.C. § 201(b)(1)(A).

• Counterfeiting

Magasouba v. Mukasey, 543 F.3d 13 (1st Cir. 2008) – A Rhode Island conviction for trafficking in trademark counterfeits (selling pirated copies of DVDs and CDs) is an AF under INA § 101(a)(43)(R) as an offense relating to commercial bribery, counterfeiting, or forgery. Sub-§ (a)(43)(R) subsumes all the elements of the respondent’s conviction, and thus the fact of conviction alone establishes he is an aggravated felon. Note: Respondent argued that the DHS was obligated to pursue his removal under INA ‘ 101(a)(43)(M), which relates to a crime of fraud or deceit in which the loss to the victim exceeds $10,000. The court disagreed and found that DHS has discretion to choose which section to charge.

Kamagate v. Ashcroft, 385 F.3d 144 (2d Cir. 2004) – A conviction for conspiracy to utter and possess counterfeit securities in violation of 18 U.S.C. §§ 271 and 513(a) was found to be a crime relating to counterfeiting because the crime involved counterfeiting and the intent to deceive.

Park v. Attorney Gen., 472 F.3d 66 (3d Cir. 2006) – A conviction for trafficking in counterfeit goods or services in violation of the Trademark Counterfeiting Act of 1984, 18 U.S.C. § 2320 is a conviction for an offense relating to counterfeiting. The offense prohibits the knowing use of a counterfeit mark and given the “broad meaning” of “relating to,” the offense clearly relates to counterfeiting.

Nwagbo v. Holder, 571 F.3d 508 (6th Cir. 2009) – Conspiracy to possess, and aiding and abetting in the possession of, counterfeited obligations or other securities of the United States with intent to defraud in violation of 18 U.S.C. §§ 2, 371, and 472 is an AF.

Albillo-Figueroa v. INS, 221 F.3d 1070 (9th Cir. 2000) – Possessing counterfeit obligations of the United States under 18 U.S.C. § 472, where a prison term is at least one year, is an AF. The offense requires that the alien know the bill is counterfeit and either possess or pass the phony bill with the intent to defraud and is therefore an offense relating to counterfeiting.

• Forgery

Matter of Aldabesheh, 22 I&N Dec. 983 (BIA 1999) – Second degree forgery under N.Y. PENAL LAW § 170.10(2) (falsely make/alter written instrument with intent to defraud/deceive) is an AF under (R) if prison term is at least one year.

United States v. Johnstone, 251 F.3d 281 (1st Cir. 2001) – Forgery under Colorado law is an AF.

Richards v. Ashcroft, 400 F.3d 125 (2d Cir. 2005) – Possessing forged instruments was found to be a crime related to forgery.

Drakes v. Zimski, 240 F.3d 246 (3d Cir. 2001) – Second degree forgery under DEL. CODE ANN. § 861, where a prison term is at least one year, is an AF. The offense relating to forgery includes intent to defraud and intent to deceive.

United States v. Chavarria-Brito, 526 F.3d 1184 (8th Cir. 2008) – A conviction for possession of forged documents required to legally enter, remain, or work in this country, either with the intent to defraud or with the knowledge that the person is facilitating a fraud under sections 715A.2(1)(d) and (2)(a)(4) of the Iowa Code is categorically an offense relating to forgery.

Vizcarra-Ayala v. Mukasey, 514 F.3d 870 (9th Cir. 2008) -Forgery conviction under CAL. PENAL CODE § 475(c) is not categorically an offense relating to forgery because the statute punishes the possession of real document[s] in order to defraud, and a key element of generic forgery is the falsification of a document itself.

Morales-Alegria v. Gonzales, 449 F.3d 1051 (9th Cir. 2006) – Forgery conviction under CAL. PENAL CODE § 476 was found to be an AF.

• Trafficking in Vehicles with Altered ID Numbers

United States v. Maung, 320 F.3d 1305 (11th Cir. 2003) – Conspiring to violate 18 U.S.C. § 2321(a) (knowingly receiving/possessing cars with altered ID numbers with the intent to sell)) is an offense relating to trafficking in vehicles with altered ID numbers and an AF under (R) if prison term is at least one year (court cannot reduce sentencing solely to avoid immigration consequences).

(S) Obstruction of Justice/Perjury or Subornation of Perjury/Bribery of Witness–term of imprisonment at least one year

• Obstruction of Justice

Matter of Martinez-Recinos, 23 I&N Dec. 175 (BIA 2001) – A perjury conviction under CAL. PENAL CODE § 118(a) was found to be an AF.

Matter of Espinoza-Gonzales, 22 I&N Dec. 889 (BIA 1999) – Misprision of a felony (knowing person committed a crime and took affirmative stip to conceal crime) under 18 U.S.C. § 4 is not an offense relating to obstruction of justice or an AF under (S). Obstruction of justice offenses are listed in 18 U.S.C. §§ 1501-1518 and have as an element interference with the proceedings of a tribunal or require an intent to harm or retaliate against others who cooperate in the process of justice or might otherwise so cooperate in the proceeding. See also Salazar-Luviano v. Mukasey, 551 F.3d 857 (9th Cir. 2008).

Matter of Batista-Hernandez, 21 I&N Dec. 955 (BIA 1997) – Accessory after the fact to a drug trafficking crime under 18 U.S.C. § 3 is an offense relating to obstruction of justice (offense requires knowingly preventing/hindering another’s apprehension/trial or punishment) and therefore an AF under (S) if sentence (regardless of any suspension or of execution of that sentence) is at least 1 year. This case was distinguished by Matter of Joseph, 22 I&N Dec. 799 (BIA 1999) (flight from cop to evade own arrest not obstruction of justice).

United States v. Gamboa-Garcia, 620 F.3d 546 (5th Cir. 2010) – For sentencing purposes, accessory to murder under the second section of 18-205 of the Idaho criminal code was an AF under 8 U.S.C. § 1101(a)(43)(S) as its elements were essentially the same as 18 U.S.C. § 3 (accessory after the fact) – both statutes required that the defendant have knowledge that the offense had been committed, take actions to assist the offender, and actively interfered in obstructing justice.

Alwan v. Ashcroft, 388 F.3d 507 (5th Cir. 2004) – Contempt of court conviction under 18 U.S.C. § 401(3) (disobedience of a court order) would be punishable as obstruction of justice under 18 U.S.C. § 1503(a) and is therefore an AF. Intent to interfere with the administration of justice found despite alien’s refusal to testify, after grant of immunity, because he feared he would be harmed.

Salazar-Luviano v. Mukasey, 551 F.3d 857 (9th Cir. 2008) – Aiding and abetting an attempted escape from custody, in violation of 18 U.S.C. § 751, is not an AF under § 101(a)(43)(S) of the Act (offense relating to obstruction of justice). The court deferred to Matter of Espinoza-Gonzalez, 22 I&N Dec.889 (BIA 1999), which determined that whether a specific offense is an (S) crime depends on whether the elements of that offense constitute the crime of obstruction of justice as that term is defined in 18 U.S.C. § 1501 et al. The court acknowledged that escape from custody of one who is arrested, charged with a crime, or held for the purposes of expulsion, etc, most probably impedes prospective judicial or tribunal process. However, this did not make attempted escape from custody fall within the narrow categorical confines of the (S) ground as set forth in Espinoza-Gonzalez.

Renteria-Morales v. Mukasey, 551 F.3d 1076 (9th Cir. 2008) – A conviction in violation of 18 U.S.C. § 3146, failure to appear in court, does constitute an AF under INA § 101(a)(43)(S), but it is not an AF under INA § 101(a)(43)(T). Note: Renteria-Morales v. Mukasey, 532 F.3d 949 (9th Cir. 2008) is withdrawn and superseded.

• Perjury

Matter of Martinez-Recinos, 23 I&N Dec. 175 (BIA 2001) – Perjury under CAL. PENAL CODE § 118(a) has essentially the same elements as perjury under 18 U.S.C. § 1621 and is therefore an AF under (S).

(T) Failure to Appear After Court Order to Answer Felony Charge–for which term of 2 years or more may be imposed

Renteria-Morales v. Mukasey, 551 F.3d 1076 (9th Cir. 2008) – A conviction in violation of 18 U.S.C. § 3146, failure to appear in court, does not constitute AF under INA § 101(a)(43)(T) but does constitute an AF under INA § 101(a)(43)(S). Note: Renteria-Morales v. Mukasey, 532 F.3d 949 (9th Cir. 2008) is withdrawn and superseded.

(U) Attempt or Conspiracy to Commit Any of the Above Offenses

Matter of Richardson, 25 I&N Dec. 226 (BIA 2010) – A conviction of conspiracy can constitute an AF under § 101(a)(43)(U) even if the state statute does not have an overt act requirement – that is, the statute does not require the commission of an overt act by one of the conspirators in furtherance of the conspiracy. The alien’s conviction for conspiracy under New Jersey law was, thus, an AF.

Matter of S-I-K-, 24 I&N Dec. 324 (BIA 2007) – Federal conviction for conspiracy under 18 U.S.C. § 371, which in this case applied to the making of false statements relating to a health care benefit program in violation of 18 U.S.C. § 1035, mail fraud in violation of 18 U.S.C. § 1341, and health insurance fraud in violation of 18 U.S.C. § 1347, is categorically a conspiracy conviction under INA § 101(a)(43)(U) because the conspiracy involved fraud or deceit in which the loss to the victim exceeds $10,000 under INA § 101(a)(43)(M). The conviction record showed that the potential loss associated with the offense was more than $10,000.

Matter of Bahta, 22 I&N Dec. 1381 (BIA 2000) – Attempted possession of stolen property (including receipt of stolen property) under NEV. REV. STAT. §§ 13.330 and 205.275 are attempted theft offenses and AF’s under (U).

Matter of Onyido, 22 I&N Dec. 552 (BIA 1999) – Submitting false claim with intent to defraud arising from an unsuccessful scheme to obtain $15,000 from an insurance company is an “attempt” to commit fraud in which the loss to the victim exceeded $10,000 and is therefore an AF under (U).

Pierre v. Holder , 588 F.3d 767 (2d Cir. 2009) – INA § 101(a)(43)(U) is not a necessarily included offense of subsection (M). A finding of removability on a ground not charged in the NTA (here, INA § 101(a)(43)(U)) is a violation of due process rights.

Sui v. INS, 250 F.3d 105 (2d Cir. 2001) – Possession of counterfeit securities with intent to deceive under 18 U.S.C. § 513(a) is not attempted fraud or deceit, nor an AF. Attempt requires the intent to commit a crime plus a substantial step to commit a crime. In this case, a substantial step to pass securities and cause a loss not shown.

Omari v. Gonzales, 419 F.3d 303 (5th Cir. 2005) – A violation of paragraph one of 18 U.S.C. § 2314 is not an AF pursuant to § 101(a)(43)(M) or (U) of the Act. The provision does not necessarily entail fraud or deceit, because it can be violated by transporting or transferring goods know to be stolen.

Iysheh v. Gonzales, 437 F.3d 613 (7th Cir. 2006) – Alien’s conviction for conspiracy to sell stolen cars was found to be an AF as a conspiracy to commit an offense involving fraud or deceit causing a loss of more than $10,000 under 101(a)(43)(M)(i) and (U).

United States v. Martinez-Garcia, 268 F.3d 460 (7th Cir. 2001) – Entering a motor vehicle with the intent to commit a theft under 705 ILL. COMP. STAT. ANN. § 405/5-120 is an attempted theft offense and an AF. Unlawfully entering a vehicle is a substantial step to commit a theft offense. The court applied Sui’s definition of attempt. (Sui v. INS, 250 F.3d 105 (2d Cir. 2001)).Ngaeth v. Mukasey, 545 F.3d 796 (9th Cir. 2008) – A conviction for an attempted theft offense of second degree burglary under CAL. PENAL CODE § 459 is an AF under INA §§ 101(a)(43)(G) and (U). The California statute states “[e]very person who enters any . . . vehicle . . . when the doors are locked . . . with intent to commit grand or petit larceny or any felony is guilty of burglary.” Under Ye v. INS, 214 F.3d 1128 (9th Cir. 2000), Cal. Penal Code § 459 is not an AF as a burglary offense or a COV. It is an AF as an attempted theft offense.

Aggravated Felony Outline (pdf)

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