ATTACHMENT 3


Aggravated Felony Defined


                                    a.         § 101(a)(43)(A). A conviction for “murder, rape, or sexual abuse of a minor” constitutes an aggravated felony under § 101(a)(43)(A) of the Act, including a misdemeanor offense of sexual abuse of a minor, if the State offense otherwise conforms to the Federal definition at § 101(a)(43) of the Act. See Matter of Small, 23 I&N Dec. 448 (BIA 2002); United States v. Robles-Rodriguez, 281 F. 3d 900, 903 (9th Cir. 2002); United States v. Yanez-Saucedo, 295 F.3d 1055 (9th Cir. 2002) (third-degree rape under Washington State law which does not require the offender to use force constitutes an aggravated felony under § 101(a)(43)(A) of the Act); Barthelemy v. Ashcroft, 329 F.3d 1062 (9th Cir. 2003) (violation of CPC § 261.5(c) is an aggravated felony) citing United States v. Baron-Medina, 187 F.3d 1144 (9th Cir. 1999); Cedano-Viera v. Ashcroft, 324 F.3d 1062 (9th Cir. 2003) (held that an alien’s conviction for lewdness with a child under age14, in violation of Nevada Revised Statutes (NRS) § 201.230(1), is an aggravated felony under § 101(a)(43)(A) of the Act, notwithstanding its subsequent expungement); United States v. Alvarez-Gutierrez, 394 F.3d 1241 (9th Cir. 2005) (statutory seduction of a minor [14 years old] under NRS § 200.364, 368 is an aggravated felony for sentencing enhancement purposes even though the alien was sentenced to 12 months in jail, a gross misdemeanor under Nevada law); and Parrilla v. Gonzales, 414 F.3d 1038 (9th Cir. 2005) (communication with a minor for immoral purposes under Washington Revised Code § 9.68A.090 constitutes sexual abuse of a minor under the modified categorical approach where the certification for determination of probable cause revealed explicit conduct of a sexual nature and was expressly incorporated into the guilty plea). Rape in the third degree under Oregon law, which criminalizes as felony “sexual intercourse with another person under 16 years of age,” falls within ordinary, contemporary, and common meaning of the word “rape,” because the statute prohibits sexual activity that is both (1) unlawful and (2) without consent as a matter of law. Rivas-Gomez v. Gonzales, 441 F.3d 1072 (9th Cir. 2006). It is thus an aggravated felony. Id. A victim of sexual abuse who is under the age of 18 is a “minor” for purposes of determining whether an alien has been convicted of sexual abuse of a minor within the meaning of § 1101(a)(43)(A) (2000). Matter of V-F-D-, 23 I&N Dec. 859 (BIA 2006). The offense of sexual intercourse with a minor more than three years younger under California law is an aggravated felony. The court may properly employ the “ordinary, contemporary, and common meaning” of the term “sexual abuse of a minor” when it relies on the dictionary definition of a minor as a person under 18 rather than the Federal definition at 18 U.S.C. §2243 (age 12-16, but is at least four years younger than the perpetrator). In overruling Afridi v. Gonzales, 442 F.3d 1212 (9th Cir. 2006) and its original decision in Estrada-Espinoza v. Gonzales, 498 F.3d 933 (9th Cir. 2007), an en banc panel of the Ninth Circuit ruled on October 20, 2008, that convictions under §§261.5(c), 286(b)(1), 288a(b)(1), or 289(h) of the CPC do not categorically constitute “sexual abuse of a minor,” within the meaning of §101(a)(43)(A) of the Act, in circumstances where: there were no allegations of abuse or violence by the perpetrator; the perpetrator and the victim were cohabitating with the consent of both sets of parents and the couple raised a child of that relationship together. See Estrada-Espinoza v. Mukasey, ____F.3d____ (9th Cir. 2008) (en banc). Decided October 20, 2008.


                                    b.         § 101(a)(43)(A). The BIA has adopted a broad definition of “sexual abuse” by looking at various Federal definitions of “sexual abuse of a child,” the definition in Black’s Law Dictionary, and the intent of Congress to remove aliens who are sexually abusive toward children. The BIA found the definition of “sexual abuse of a minor” under 18 U.S.C. § 3509 to be a reasonable interpretation, and expressly stated that this definition was not to serve as a definitive standard, but rather as a guide in identifying the types of crimes that would be considered sexual abuse of a minor. The BIA found 18 U.S.C. § 2243 to be “[in]consistent with Congress’ intent to remove aliens who are sexually abusive toward children and to bar them from any relief.” Additionally, it found § 2243 to be “too restrictive to encompass the numerous state crimes that can be viewed as sexual abuse and the diverse types of conduct that would fit within the term as it is commonly used.” See Matter of Rodriguez-Rodriguez, 22 I&N Dec. 991, 995-96 (BIA1999) (A conviction for violation of a Texas statute making it a felony for an adult to sexually expose himself to a child was, for purposes of § 101(a)(43)(A) of the Act, an aggravated felony of “sexual abuse of a minor.”).


                                    c.         § 101(a)(43)(A). However, a misdemeanor conviction under CPC § 647.6(a) (annoying or molesting a child) is not an aggravated felony. See United States v. Pallares-Galan, 359 F.3d 1088 (9th Cir. 2004).


 

On November 2, 2007, a Ninth Circuit panel held that A.R.S. §§ 13-1001 and 13-1403(B), which defines and prohibits attempted public sexual indecency to a minor, includes conduct that falls outside the Federal definition of attempted sexual abuse of a minor at §101(a)(43)(A) and (U) of the Act. For example, the minor need not be touched or aware of the offender’s conduct. Thus, the panel concluded that attempted public sexual indecency to a minor is not sexual abuse within the meaning of §101(a)(43)(A) and (U) of the Act under either the categorical or modified categorical approach. See Rebilas v. Keisler, 506 F.3d 1161 (9th Cir. 2007). The Opinion was modified on May 16, 2008, to make clear that only the categorical analysis applied in rendering the opinion. See Rebilas v. Mukasey, 527 F.3d 783 (9th Cir. 2008).


                                    d.         § 101(a)(43)(C). A State conviction for being a felon in possession of a firearm does not require a Federal, commerce nexus as one of its elements (under18 U.S.C. § 921) to qualify as an aggravated felony under §101(a)(43)(C) of the Act. See United States v. Castillo-Rivera, 244 F. 3d 1020 (9th Cir. 2001), cert. denied, 534 U.S. 931 (2001).


                                    e.         § 101(a)(43)(D). The phrase “amount of funds” in § 101(a)(43)(D) of the Act pertaining to money laundering refers to the amount of money that was laundered, not the loss suffered by the victim of the crime. See Chowdhury v. INS, 249 F. 3d 970 (9th Cir. 2001).


 

                                    f.         § 101(a)(43)(E). Possession of a firearm by a felon in violation of § 12021(a)(1) of the CPC is an aggravated felony under § 101(a)(43)(E)(ii) of the Act because it is described in 18 U.S.C. § 922(g)(1). See Matter of Vasquez-Muniz, 23 I&N Dec. 207 (BIA 2002); United States v. Mendoza-Reyes, 331 F.3d 1119 (9th Cir. 2003) (State of Washington first degree unlawful possession of a firearm by a previously convicted felon is an aggravated felony under §101(a)(43)(E) of the Act); and United States v. Castillo-Rivera, 244 F.3d 1020 (9th Cir. 2001), cert. denied, 534 U.S. 931 (2001). Similarly, in United States v. Delaney, 427 F.3d 1224 (9th Cir. 2005), a defendant’s sentence as a career offender is affirmed over the defendant’s claim that a conviction for possession of a short-barreled shotgun is not a crime of violence under the United States Sentencing Guidelines. A convicted felon in possession of a firearm has violated 18 U.S.C. §922(g) even if he was only in possession of the firearm for a few seconds. This is a strict liability statute that has only three elements: (1) the defendant is a convicted felon; (2) the defendant was in knowing possession of the firearm; and (3) the firearm was in or was affecting interstate commerce. See United States v. Johnson, 459 F.3d 990 (9th Cir. 2006).


 

                                    g.         § 101(a)(43)(F). Possession of an unregistered, sawed-off shotgun is a crime of violence. See United States v. Dunn, 946 F.2d 615 (9th Cir. 1991); and United States v. Diaz-Diaz, 327 F.3d 410 (5th Cir. 2003) (persuasive authority only).


                                    h.         § 101(a)(43)(F). A conviction under CPC § 192(a) for voluntary manslaughter is a crime of violence under § 101(a)(43)(F) of the Act – for purposes of the USSG – because intentional use of force is not required, since recklessness is a sufficient mens rea to establish it. See United States v. Bonilla-Montenegro, 331 F.3d 1047 (9th Cir. 2003).


                                    i.         § 101(a)(43)(F). A 1995 conviction for assault with a deadly weapon with a one-year sentence in violation of § 245(a)(1) of the CPC is an aggravated felony under § 101(a)(43)(F) of the Act. See Ocampo-Duran v. Ashcroft, 254 F. 3d 1133 (9th Cir. 2001).


                                    j.         § 101(a)(43)(F). An Arizona conviction for aggravated assault, i.e., assault with a deadly weapon or dangerous instrument, in violation of Arizona Revised Statute (ARS) § 13-1203 (A)(i)(2000), requires intentional, knowing or reckless conduct causing physical injury to another person. Thus, the use of force is a required element of the statute; it constitutes a crime of violence under 18 U.S.C. § 16(a); and, therefore, it is an aggravated felony within the meaning of 18 U.S.C. § 16(a). See United States v. Ceron-Sanchez, 222 F. 3d 1169 (9th Cir. 2000).


                                    k.         § 101(a)(43)(F). A California Conviction for mayhem under CPC § 203 is a § 101(a)(43)(F) aggravated felony vis-a-vis 18 U.S.C. § 16(b). See Ruiz-Morales v. Ashcroft, 361 F.3d 1219 (9th Cir. 2004).


                                    l.         § 101(a)(43)(G). Because CPC § 484(a) is too broad to constitute a theft offense in all circumstances, a conviction under CPC §§ 488 and 666 does not “facially qualify” as an aggravated felony under § 101(a)(43)(G) of the Act. Indeed, this section is inconsistent with the modern generic definition of the § 101(a)(43)(G) phrase, “theft offense including receipt of stolen property,” which is: a 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. Nor can the pre-sentence report be used to establish the fact of the conviction. See United States v. Corona-Sanchez, 291 F. 3d 1201 (9th Cir. 2000) (en banc); and Rusz v. Ashcroft, 376 F.3d 1182 (9th Cir. 2004) (A conviction for petty theft with a prior conviction under CPC §§ 484, 488, and 666 is not a crime for which a sentence of one year or longer may be imposed vis-a-vis § 237(a)(2)(A)(i)(II) of the Act, citing Corona-Sanchez, supra).


                                    m.       § 101(a)(43)(G). Similarly, an alien’s 1992 conviction in California for receipt of stolen property with a two-year sentence constitutes an aggravated felony under § 101(a)(43)(G) of the Act. See United States v. Maria-Gonzalez, 268 F.3d 664 (9th Cir. 2001); and Randhawa v. Ashcroft, 298 F.3d 1148 (9th Cir. 2002) (conviction for possession of stolen mail in violation of 18 U.S.C § 1708 is a theft offense and an aggravated felony).


                                    n.         § 101(a)(43)(G). Similarly, the BIA has held that a taking of property constitutes a theft offense within the meaning of § 101(a)(43)(G) of the Act where there is criminal intent to deprive the owner of the rights and benefits of ownership, even if the deprivation is less than total or permanent, e.g. unlawful driving and taking of a vehicle. See Matter of V-Z-S-, 22 I&N Dec. 1338 (BIA 2000); versus Nevarez-Martinez v. Ashcroft, 326 F.3d 1053 (9th Cir. 2003) (Theft of a means of transportation under ARS § 13-1814 is not a theft offense for immigration purposes where there is no criminal intent to deprive the owner of his property). In Penuliar v. Ashcroft, 395 F.3d 1037 (9th Cir. 2005), the court ruled that CVC §10851(a) is not a theft offense statute that qualifies as a §101(a)(43)(G) statute per se. However, in United States v. Vidal, 453 F.3d 1114 (9th Cir. 2005), Penuliar is distinguishable in the case of an alien previously convicted for “aiding and abetting” the unlawful taking of a vehicle in violation of CVC §10851(a), within the meaning of 18 U.S.C. §2(a), because under California law an aider and abettor is one who acts with: (1) knowledge of the unlawful purpose of the perpetrator; (2) the intent or purpose of committing, encouraging or facilitating the commission of the offense; and (3) by act or advice aids, promotes, encourages or instigates the commission of the crime. On January 17, 2007, the United States Supreme Court ruled that a “theft offense” includes the crime of aiding and abetting a theft offense. See Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007), in which the United States Supreme Court overruled Penuliar v. Ashcroft, supra, in a decision also analyzing CVC § 10851(a). Both of these cases are cited in Matter of Moncada, 24 I&N Dec. 62 (BIA 2007) (The exception to deportability under § 237(a)(2)(B)(i) of the Act for a conviction for possession of 30 grams or less of marijuana for one’s own use does not apply to a statute having as an element possession of the marijuana in a prison-related setting.). More recently, on December 27, 2007, the Ninth Circuit cited Gonzales v. Duenas Alvarez, supra, favorably involving the taking of a vehicle in violation of CVC § 10851(a). See Arteaga v. Mukasey, 511 F.3d 940 (9th Cir. 2007). On January 17, 2008, a panel of the BIA clarified Matter of V-Z-S-, supra, by holding that a welfare offense under the General Laws of Rhode Island is not a theft offense under § 101(a)(43)(G) of the Act because a theft offense requires a taking of property without consent whenever there is a criminal intent to deprive the owner of the rights and benefits of ownership, even if such deprivation is less than total or permanent; whereas, in a fraud scheme the theft occurs with consent that has been unlawfully obtained, e.g., § 101(a)(43)(M)(i). See Matter of Garcia-Madruga, 24 I&N Dec. 436 (BIA 2008).


                                    o.         § 101(a)(43)(G). A conviction under NRS §§193.330 and 205.275 for an attempted theft offense, including receipt of stolen property, is an aggravated felony under § 101(a)(43)(G) and (U) of the Act. See Matter of Bahta, 22 I&N Dec. 1381 (BIA 2000); and Randhawa v. Ashcroft, 298 F.3d 1148 (9th Cir. 2002).


                                    p.         § 101(a)(43)(G). Citing 18 U.S.C. § 924(e)(2)(B), the Supreme Court established a generic definition for burglary as “[1] unlawful or unprivileged entry into, or remaining in, [2] a building or structure, [3] with intent to commit a crime.” See Taylor v. United States, 495 U.S. 575, 599 (1990). This generic definition was cited favorably by the Ninth Circuit on December 3, 2004, when it ruled that a defendant’s conviction by plea to unlawfully entering an inhabited dwelling and taking personal property belonging to the inhabitant of the dwelling in violation of CPC § 459 encompassed the Taylor definition of generic burglary. See United States v. Smith, 390 F.3d 661 (9th Cir. 2004). Thus, first degree burglary under CPC §459, which is punishable by imprisonment in the State prison for two, four or six years under CPC §461(1), is an aggravated felony under §101(a)(43)(G) of the Act. See Nunes v. Ashcroft, 348 F.3d 815 (9th Cir. 2003).


                                    q.         § 101(a)(43)(G). However, a conviction for burglary of a vehicle is not a burglary offense within the meaning of § 101(a)(43)(G) of the Act. See Matter of Perez, 22 I&N Dec. 1325 (BIA 2000); and Sareang Ye v. INS, 214 F.3d 1128 (9th Cir. 2000).


                                    r.         § 101(a)(43)(G). A theft offense under ARS § 13-1802 (possession of stolen property) is not a theft offense under § 101(a)(43)(G) where intent is not shown. See Huerta-Guerara v. Ashcroft, 321 F.3d 883 (9th Cir. 2003).


                                    s.         § 101(a)(43)(G). Under the modified categorical approach, an alien’s guilty plea to elements of a theft offense, as generically defined under § 487(c) of the CPC, qualifies as a theft offense within the meaning of § 101(a)(43)(G) of the Act. See Martinez-Perez v. Ashcroft, 393 F.3d 1018 (9th Cir. 2004), opinion withdrawn, amended opinion at 417 F.3d 1822 (9th Cir. 2005), holding that grand theft from a person under CPC §487(c) does not facially qualify as an aggravated felony because from the conviction documents it could not be determined that the alien plead to all elements of the generic offense of theft.


                                    t.         §101(a)(43)(G). Identity theft under ORS § 165.800 is not categorically a conviction for an aggravated felony theft offense because the defendant’s intent is to deceive a third party by using another person’s address. See Mandujano-Real v. Mukasey, 526 F.3d. 585 (9th Cir. 2008).


                                    u.         § 101(a)(43)(K)(ii). An alien has been convicted of an aggravated felony under § 101(a)(43)(K)(ii) of the Act if he has been convicted of any offense described in 18 U.S.C. §§ 2421-2423 and committed for commercial advantage (here, a conviction for conspiracy to entice individuals to travel in interstate and foreign commerce to engage in prostitution). The categorical/modified categorical approach under Taylor v. United States, 495 U.S. 575 (1990) and Shepard v. United States, 544 U.S. 13 (2005) applies to the element of conviction of an offense described in 18 U.S.C. §§ 2421, 2422, or 2423. However, the determination as to whether the offense has been “committed for commercial advantage” requires an inquiry into the underlying conduct that preceded the conviction. Hence, in making this determination, an IJ may consider the pre-sentence report, the alien’s admissions and any other relevant evidence. See Matter of Gertsenshteyn, 24 I&N Dec. 111 (BIA 2007).


                                    v.         § 101(a)(43)(M). An LPR convicted after a jury trial of eight, fraud-related Federal offenses under 18 U.S.C §§ 2, 287, 371, and 1001 and sentenced to twenty-four months in prison is not subject to removal as an aggravated felon pursuant to §101(a)(43)(M)(i) and (U) of the Act because the amount of loss to the victim or victims (of more than $10,000) is not an element of the underlying crimes of conviction. Similarly, neither the superceding information nor the judgment of conviction demonstrates unequivocally that the jury found the amount of loss arising from the alien’s fraud to be greater than $10,000. See Li v. Ashcroft, 389 F.3d 892 (9th Cir. 2004). In contrast, on December 1, 2004, the Ninth Circuit affirmed an LPR’s conviction for welfare fraud in violation of §10980(c)(2) of the California Welfare and Institutions Code (WIC) as an aggravated felony within the meaning of §101(a)(43)(M)(i) of the Act because the plea agreement specifically set forth the amount of restitution to the State of California at $22,305, based upon the State’s actual loss. The Court distinguished this case from Chang v. INS, 307 F.3d 1185 (9th Cir. 2002), noting that: the amount of loss specified in the Federal indictment directly contradicted the amount of loss set forth in the plea agreement, whereas, in the case at bar, the criminal complaint simply stated that the amount of loss exceeded $400; and the court in Chang relied upon the fact that the Federal Sentencing Guidelines allow for consideration of conduct not charged in an indictment or proven to a jury in setting an amount of restitution, whereas, in the case at bar, § 1204.4(f) of the CPC provides that a restitution order in favor of the State must be calculated on the actual loss to the State agency. See Ferreira v. Ashcroft, 390 F.3d 1091(9th Cir. 2004). In the context of removal proceedings, the offense of forgery under CPC § 476 requires knowledge of the fictitious nature of the instrument, and is therefore not broader than the Federal definition of “offense relating to forgery” for purposes of qualifying as an “aggravated felony.” See Morales-Alegria v. Gonzales, 449 F.3d 1051 (9th Cir. 2006).


Where a defendant pleads guilty to fraudulently appropriating more than $10,000 but later makes the victims whole, the defendant has not paid down the loss to the victims below the statutory threshold vis-a-vis § 101(a)(43)(M)(i) of the Act. See Kharana v. Gonzales, 487 F.3d 1280 (9th Cir. 2007).


On September 18, 2007, a panel of the Ninth Circuit ruled that a LPR’s conviction for subscribing to a false statement on a Federal tax return in violation of 26 U.S.C. § 7206(1) was an aggravated felony within the meaning of § 101(a)(43)(M)(i) where the total, actual tax loss exceeded $245,000, because the violation in question included the two elements of “fraud and deceit” and the loss to the victim exceeded $ 10,000.00. However, in the case of his wife, the record of conviction consisted only of the information and her admission of the conviction of aiding and assisting the preparation of the false tax return. See Kawashima v. Gonzales, 503 F.3d 997 (9th Cir. 2007).


On September 28, 2007, a BIA panel decided Matter of Babaisakov, 24 I&N Dec. 306 (BIA 2007). Its holding as to offenses within the scope of §101(a)(43)(M)(i) of the Act is articulated as follows:


“Nevertheless, we conclude that the statute governing removal for an aggravated felony conviction involving fraud or deceit with a loss exceeding $10,000 demands two types of determinations. The first is a categorical inquiry into a conviction under a criminal statute with an element of fraud or deceit with a loss exceeding $10,000 demands two types of determinations. The first is a categorical inquiry into a conviction under criminal statute with an element of fraud or deceit. The second is an ordinary evidentiary inquiry into whether the loss associated with the fraudulent conduct encompassed by the conviction exceeds $10,000. The second inquiry cannot be confined to the categorical or modified categorical approach because it does not involve a search for the elements of the crime, even though conviction record information may suffice in making this independent ‘loss determination’.” Matter of Babaisakov, supra at 322.


The Board panel also held that in analyzing the second element, an IJ “may consider any evidence, otherwise admissible in removal proceedings, including witness testimony, bearing on the loss to the victim in an aggravated felony case involving §101(a)(43)(M)(i) of the Act.” Id. at 321. This recent BIA decision is in tension with Ninth Circuit case law discussed above, which considers the loss to the victim(s) to be a second statutory element.


On October 4, 2007, the BIA issued another published decision addressing §101(a)(43)(M)(i) of the Act. The alien in question had been convicted of conspiracy to commit fraud or deceit, where the loss to the victim was characterized as “potential loss,” which must exceed $10,000.00 under §101(a)(43)(M)(i) and (U) of the Act. In 2004, the alien was convicted of conspiracy and mail fraud based upon offenses committed between 1998 and 2003, in violation of:18 U.S.C. §1035 (false statements relating to a health care program); mail fraud under 18 U.S.C. §1341; and health insurance fraud under 18 U.S.C. §1347. A panel of the BIA held that, because these offenses involved conspiracy to commit all three offenses, only the “potential” loss to the victim(s) must exceed $10,000.00. The BIA found that the plea agreement which was part of the Immigration Court record included a stipulation that the foreseeable loss arising from the three offenses was between $70,000.00 and $120,000.00. Thus, the panel ruled that DHS had met its BOP under §101(a)(43)(M)(i) and (U) of the Act. In a footnote, the panel noted that because the conviction record contained evidence sufficient to establish the requisite amount of the potential loss, neither the IJ nor the BIA was required to consider evidence outside the conviction documents, citing Matter of Babaisakov, supra. See Matter of S-I-K-, 24 I&N Dec. 324 (BIA 2007).


For purposes of § 101(a)(43)(m)(i) of the Act, it has two, mandatory elements: (1) the offense must involve fraud or deceit, and (2) the offense must have resulted in a loss to the victim(s) of more than $10,000. Where the aliens pled guilty to violations of 26 U.S.C. §§ 7206(1) and 7206(2), which do not require the government to prove the amount of loss their actions occurred, the convictions are not aggravated felonies. See Kawashima v. Mukasey, 530 F.3d 1111 (9th Cir. 2008).


                                    w.        § 101(a)(43)(N). Harboring illegal aliens in violation of §274(a)(1)(iii) of the Act constitutes an aggravated felony for purposes of §101(a)(43)(N) of the Act. See Castro-Espinoza v. Ashcroft, 257 F. 3d 1130 (9th Cir. 2001).


                                    x.         § 101(a)(43)(N). Transporting aliens is an offense related to alien smuggling and thus an aggravated felony under § 101(a)(43)(N) of the Act. See United States v. Galindo-Gallegos, 244 F. 3d 728 (9th Cir. 2001). Additionally, when the evidence demonstrates that the defendant acted in concert with others to bring an undocumented alien into the United States, the Government may charge the defendant as an aider and abettor. United States v. Ramirez-Martinez, 273 F.3d 903 (9th Cir. 2001). The Government need only show that defendant knowingly aided and abetted a principle. United States v. Fimbres, 49 Fed Appx 726, 2002 WL 31395960, 2002 U.S. App. LEXIS 22388 (9th Cir. October 23, 2002, unpublished). However, an alien’s mere presence in a vehicle with knowledge of a Mexican national in the trunk did not constitute alien smuggling under § 212(a)(6)(E)(i) of the Act because the alien did not perform an act of assistance or encouragement. See Altamirano v. Gonzales, 427 F.3d 586 (9th Cir. 2005).


                                    y.         § 101(a)(43)(R). An alien’s conviction for possession of counterfeit obligations of the United States is an act related to the act of counterfeiting (knowledge of the counterfeit nature of the currency and the intent to defraud) and hence an aggravated felony under § 101(a)(43)(R) of the Act. See Albillo-Figueroa v. INS, 221 F. 3d 1070 (9th Cir. 2000); Morales-Alegria v. Gonzales, 449 F.3d 1051, 1056 (9th Cir. 2006); and Matter of Aldabesheh, 22 I&N Dec. 983 (BIA 1999) (criminal contempt in the first degree is a crime of violence for purposes of §101(a)(43)(F); and forgery in the second degree constitutes a § 101(a)(43)(R) aggravated felony).


The essential elements of the crime of forgery at common law are: (1) a false making of an instrument in writing; (2) a fraudulent intent; and (3) an instrument apparently capable of effecting fraud. In essence, forgery requires a lie relating to the genuineness of the document. A violation of CPC § 475(c) encompasses both genuine and fictitious instruments. Where the only record of an LPR’s conviction for a violation of § 475(c) is an abstract of judgment which does not establish whether the conviction involved an altered or falsified document, DHS has not established that the conviction was for an offense relating to forgery under § 101(a)(43)(R) of the Act. See Vizcarra-Ayala v. Mukasey, 514 F.3d 870 (9th Cir. 2008).


                                    z.         § 101(a)(43)(S). A conviction for perjury in violation of Section 118(a) of the CPC constitutes a conviction for an aggravated felony under §101(a)(43)(S) of the Act. See Matter of Martinez-Recinos, 23 I&N Dec. 175 (BIA 2001). However, misprision of felony under 18 U.S.C. § 4 is not an aggravated felony under § 101(a)(43)(S). See Matter of Espinoza, 22 I&N Dec. 889 (BIA 1999). By contrast, an accessory after the fact to a drug-trafficking crime under 18 U.S.C. § 3 is an aggravated felony under § 101(a)(43)(S). See Matter of Batista-Hernandez, 21 I&N Dec. 955 (BIA 1997).


 

A violation of 18 U.S.C. § 751 does not require the existence of a pending judicial proceeding, much less knowledge of or a specific intent to obstruct such a proceeding. This offense has three elements: (1) the defendant must act with knowledge that (2) his action have the natural and probable effect of interfering with (3) a pending judicial proceeding. See Salavar-Luviano v. Mukasey, 551 F.3d 857 (9th Cir. 2008).


                                    aa.       § 101(a)(43)(S) and (T). A conviction for failure to appear in court in violation of 18 U.S.C. § 3146 is not categorically an aggravated felony. Hence, the modified categorical approach under Taylor v. United States, 495 U.S. 575 (1990), must be applied. Given the facts presented, defendant Rivera’s conviction for being released and knowingly failing to appear before a court as required by the conditions of her release and her failure to obey a court order to surrender for service constitute active interference with the proceedings of a tribunal within the meaning of § 101(a)(43)(S) of the Act.


By contrast, defendant Renteria clearly established that the judicially noticeable documents did not establish that she was under a court order or that she was ordered to appear to answer to or dispose of a charge. Thus, her conviction under 18 U.S.C. § 3146(a)(1) does not constitute a conviction under § 101(a)(43)(T) of the Act because only two of the four elements of the statute have been satisfied. See Renteria-Morales v. Mukasey, 551 F.3 1076 (9th Cir. 2008), superceding original decision at 532 F.3d 949 (9th Cir. 2008)..


                                    bb.       § 101(a)(43)(U). A conviction for submitting a false claim to an insurance company with the intent to defraud the insurer out of $15,000 is deemed an aggravated felony, for an attempt to commit a fraud in which the loss to the victim exceeded $10,000, within the meaning of § 101(a)(43)(U) of the Act, vis-a-vis former § 241(a)(2)(A)(iii) of the Act and 26 U.S.C. § 7201. See Matter of Onyido, 22 I&N Dec. 552 (BIA 1999).


                                    cc.      §101(a)(43)(G) and (U). A conviction for entering a locked vehicle with the intent to commit theft therein is a attempted theft offense under §459 of the CPC. The panel noted that in the sentencing context, the Ninth Circuit defines “attempt” as containing two elements: “(1) an intent to engage in criminal conduct, coupled with (2) an overt act constituting a substantial step toward the commission of the crime.” The panel cited United States v. Morales-Perez, 467 F.3d 1219, 1222 (9th Cir. 2006). Agreeing with the reasoning of the Fifth and Seventh Circuits, the panel held that the offense in question constitutes an attempted theft offense for purposes of §101(a)(43) of the Act. See Ngaeth v. Mukasey, ____F.3d____ (9th Cir. 2008). Decided September 24, 2008.