Tooby's California Post-Conviction Relief for Immigrants

Aggravated felony “crimes of violence” are defined by 18 U.S.C. § 16.[21] 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,[22] which does have force as an element, could be considered a crime of violence under § 16(a).  In other words, a conviction need not be a felony to be an aggravated felony crime of violence under 18 U.S.C. § 16(a).

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.”[23]  This is the statute under which the federal and immigration courts have held a number of offenses to be crimes of violence.  See N. Tooby & J. Rollin, Criminal Defense of Immigrants § § 19.41, et seq. (2007).

            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 this portion of 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.  For example, a conviction of burglary, which does not have use of force as an element, must be a felony in order to be an aggravated felony crime of violence under 18 U.S.C. § 16(b).

            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 holds 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 18 U.S.C. § 16(b) is dispositive.

[21] 8 U.S.C. § 1101(a)(43)(F).

[22] Penal Code § 240.

[23] 18 U.S.C. § 16(b)(emphasis added).