Eighth Circuit Rejects Petitioner's Challenge to North Dakota Marijuana Statute

The Eighth Circuit has rejected a non-citizen’s argument that she is not deportable for a controlled substance violation because the North Dakota statute in effect at the time of her conviction included hemp in the definition of marijuana while the federal definition in effect at the time of her removal proceedings excluded hemp. The Court also rejected the argument that the North Dakota definition of marijuana is overbroad as compared to the federal definition because the federal definition includes only “all parts of the plant Cannabis sativa L.,” while the North Dakota definition is not limited to a specific species, finding that the federal definition of cannabis extended to all “marihuana-producing Cannabis.”

The full text of Salinas v. Bondi can be found here: https://ecf.ca8.uscourts.gov/opndir/25/03/232779P.pdf

Eighth Circuit finds that North Dakota Aggravated Assault Statute is not a Crime of Violence

The Eighth Circuit has determined that a North Dakota conviction for aggravated assault is overbroad and divisible with respect to the definition of a crime of violence under the sentencing guidelines. The court determined that subsection (a) of the statute includes reckless driving, which is outside the definition of a crime of violence. Given the similarity between the definition of a crime of violence in the immigration context and the sentencing guidelines, this case could have persuasive value in the immigration context.

The full text of United States v. Schneider can be found here:

http://media.ca8.uscourts.gov/opndir/18/09/173034P.pdf

Eighth Circuit Finds that ND Unlawful Entry Into a Vehicle is an Attempted Theft Aggravated Felony

The Eighth Circuit has determined that a North Dakota conviction for unlawful entry into a vehicle qualifies as an attempted theft aggravated felony.  "The BIA correctly affirmed the IJ’s conclusion that Ahmed’s unlawful entry into the vehicle was a substantial step toward committing a theft."

The full text of Ahmed v. Sessions can be found here:

http://media.ca8.uscourts.gov/opndir/18/05/172035P.pdf

Eighth Circuit Finds that North Dakota Burglary Statute is not a Violent Felony

The Eighth Circuit has determined that a conviction for burglary in North Dakota (which includes burglary of both vehicles and structures) is overbroad and indivisible with respect to the generic definition of burglary.  As such, it does not qualify as a violent felony under the Armed Career Criminal Act (ACCA).  Given the similar definitions of generic burglary under the ACCA and a burglary aggravated felony, this case could have persuasive value in the immigration context.

The full text of US v. Kinney can be found here:

http://media.ca8.uscourts.gov/opndir/18/04/163764P.pdf