(B)  Safe Havens Specific to this Category.  This category has many safe havens or defenses. 

 

            (1)  If the criminal court simply makes a finding of failure to appear, and revokes bail or own recognizance release, that does not constitute a conviction for an offense of failure to appear and cannot constitute an aggravated felony under this category. 

(2)  Moreover, if the conviction was under a statute that did not require, as an element, that the failure to appear must violate a court order, then the conviction does not constitute an aggravated felony under this category.  Many state failure to appear statutes do not have this as an essential element.  A felony conviction in Connecticut for failing to appear when legally called was held not to constitute an aggravated felony conviction for failing to appear to answer a felony in violation of court order,[557] because the elements of the statute did not establish that the failure to appear was in violation of the court order, rather than the defendant’s mere promise to appear.  The INS was not permitted to go behind the elements of the state statute of conviction, nor to rely on the reporter’s transcript of the sentencing hearing, nor on general procedures used in Connecticut criminal cases.[558] 

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

[558] Barnaby v. Reno, 142 F.Supp.2d 277 (D. Conn. 2001).

Ninth Circuit

AGGRAVATED FELONY - FAILURE TO APPEAR
Renteria-Morales v. Mukasey, 532 F.3d 949 (9th Cir. Jul. 10, 2008) (federal conviction for failure to appear in court, in violation of 18 U.S.C. 3146 is not categorically an aggravated felony as defined by INA 101(a)(43)(Q) or (T); under the modified categorical approach, court was allowed to look to the record of conviction to determine the maximum punishment allowed for the underlying convictions and to determine whether the failure to appear was pursuant to "service of a sentence" or to "answer to or dispose of a charge of a felony.").

Lower Courts of Ninth Circuit

AGGRAVATED FELONY " FAILURE TO APPEAR " CALIFORNIA ELEMENTS
People v. Carroll, 222 Cal.App.4th 1406, 167 Cal.Rptr.3d 60 (3d Dist. Jan. 15, 2014) (affirming conviction of failing to appear in court while on "own recognizance" (OR) release, in violation of Penal Code 1320, where the OR release agreement defendant signed substantially complies with Penal Code 1318).