The aggravated felony definition lists dozens of criminal offenses as falling within the definition of “aggravated felony.”[128]  If the particular offense under examination can be considered a substantive offense, then it is necessary simply to see whether it falls on the list.  If the offense can be considered an inchoate, anticipatorial, or “non-substantive offense,” however, there may be arguments that the offense is not on the list unless Congress specifically included it.  Immigration counsel should therefore be alert for instances in which it is possible to argue (a) that the conviction is not for a substantive offense, but rather for an unlisted non-substantive offense, or (b) that the record of conviction is vague as to whether the conviction is for a substantive or a non-substantive offense, in which case the government cannot sustain its burden of proving by clear and convincing evidence that the noncitizen is deportable.  See § 3.48, infra.

 

[128] INA § 101(a)(43), 8 U.S.C. § 1101(a)(43).

Second Circuit

JUDICIAL REVIEW " PETITION FOR REVIEW " COLLATERAL ATTACK ON EXPEDITED REMOVAL ORDER
Shunaula v. Holder, 732 F.3d 143 (2d Cir. Oct. 16, 2013) (court of appeals lacked subject-matter jurisdiction to review alien's collateral attack of prior expedited removal, because claim that prior removal violated due process did not challenge the expedited removal system generally, its implementing regulations, or any written policies, and government was not seeking to use the prior expedited removal as an element of a criminal offense).

Fifth Circuit