Post-Conviction Relief for Immigrants

 

The statute defining “crimes of violence,” for purposes of determining whether a state conviction constitutes an aggravated felony, is 18 U.S.C. § 16.[70]

 

            Unlike § 16(b), § 16(a) does not require an offense with use of force as an element to be a felony in order to be classed as a crime of violence.  Thus, misdemeanor assault, which does have force as an element, could be considered a crime of violence under § 16(a), and thus an aggravated felony if a sentence of one year or more is imposed.

 

Section 16(b), on the other hand, defines “crime of violence” to include “(b) any other offense [i.e., any offense which does not have use or threat of force as an element as required under § 16(a)] 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.”[71]  This is the statute under which the BIA has sometimes held involuntary manslaughter, driving under the influence, and other offenses to be crimes of violence that do not have violence or the threat of violence as an element.

 

            Thus, if the elements of the offense do not include the use or threat of force, then the conviction must be a felony in order to qualify as an aggravated felony under the “crime of violence” definition.  Therefore, if a felony conviction that qualifies as a crime of violence only under § 16(b) can be reduced to a misdemeanor conviction, it will no longer constitute a felony and cannot be considered an aggravated felony under this part of the definition.  Thus it is clear that a conviction of burglary, for example, which does not have use of force as an element, must be a felony in order to be a crime of violence under § 16(b) and hence an aggravated felony.

 

The BIA has formerly held that driving under the influence is a crime of violence,[3] but the Ninth Circuit has disagreed in the criminal context.[72]  The Ninth Circuit has also held in the criminal context that aggravated reckless driving is a crime of violence,[5] and that involuntary manslaughter is a crime of violence even though it does not require intent to injure.  Courts have sometimes held that sex with a minor is a “crime of violence” even though use of force is not an element of the offense.[73]  This is based on the fact that due to the victim's young age and the nature of the offense, there is a substantial threat that physical force will be used.[74]  These cases have concerned sex with children under 14 years of age.  In particular, a frequently-cited Ninth Circuit case relied upon by the BIA, United States v. Wood, deals specifically with molestation of a very young child and should be distinguished from cases involving consensual sex between teenagers.[75]

 

If the minor is older than age 13, and there is no great age disparity between the defendant and the victim, at least one federal court has found that the offense was not a crime of violence and hence not an aggravated felony.[76]

 

            A conviction of any offense considered to be an aggravated felony under 18 U.S.C. § 16(b), which is reduced to a misdemeanor, will no longer constitute an aggravated felony.

 

            This reasoning would hold true not only for immigration cases, but also for illegal re-entry sentencing cases, and all cases in which the definition “crime of violence” under this statute is dispositive.

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

[78] 18 U.S.C. § 16(b) (emphasis added).

[70] Matter of Magallanes-Garcia, 22 I. N. Dec. 1 (BIA 1998) (driving under the influence); Matter of Puente, 22 I. & N. Dec. 1006 (BIA 1999) (driving under the influence).

[71] United States v. Trinidad-Aquino, 259 F.3d 1140 (9th Cir. Aug. 8, 2001).

[72] United States v. Ceron-Sanchez, 222 F.3d 1169 (9th Cir. 2000) (aggravated assault with a deadly weapon or dangerous instrument under Arizona law constitutes a crime of violence under 8 U.S.C. § 1101(a)(43)(F), and therefore illegal noncitizen convicted of reckless driving properly received 16-level sentence enhancement under the U.S. Sentencing Guidelines § 2L1.2 for being a deported noncitizen found in United States).

[73] It has been held to be a crime of violence under 18 U.S.C. § 16(b) as a felony that inherently involves a substantial risk that force will be used.  Matter of B., 21 I. & N. Dec. 287 (BIA 1996) (where Maryland statute prohibits intercourse with child under 14 years, the offense invariably presents “a substantial risk that physical force will be wielded”) (citing United States v. Reyes-Castro, 13 F.3d 377 (10th Cir. 1993)); United States v. Wood, 52 F.3d 272, 275 (9th Cir.), cert. denied, 116 S.Ct. 217 (1995).

[74] Matter of B., supra.  See 18 U.S.C. § 16(b), and discussion of crimes of violence in California Criminal Law & Immigration, § 9.10 and California Criminal Law & Immigration, Appendix 9-E following chapter 9.

[75] In Matter of B., supra, the BIA relied upon United States v. Wood, 52 F.3d 272, 275 (9th Cir.), cert. denied, 116 S.Ct. 217 (1995).  Wood should be distinguished because: (a) the court was using the definition of crime of violence found in the U.S. Sentencing Guidelines, which uses the test ‘risk of injury’ rather than ‘risk that force will be used’ and is far broader than the definition used in immigration law under 18 U.S.C. § 16 (see further discussion of this difference in California Criminal Law & Immigration, Appendix 9-E); (b) the court did not make a “categorical” analysis but considered the actual facts of the case; and (c) the victim was a four-year-old child, a fact the court relied upon extensively, and a situation far different from consenting sex between a teenage couple.

[76] Xiong v. INS, 173 F.3d 601 (7th Cir. 1999) (intercourse with a 15-year-old is not a crime of violence; court has jurisdiction to review charging documents to determine age of victim)(citing Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 2160 (1990)).  See California Criminal Law and Immigration (2002), § 9.7 (Part F), for further discussion of statutory rape as a crime of violence.