The crime of violence aggravated felony definition includes: “a crime of violence (as defined in section 16 of title 18, United States Code, but not including a purely political offense) for which the term of imprisonment [sic] at least one year . . . .”[437]  Therefore, Congress has provided an exception to the crime of violence category for an offense if it is a “purely political offense.”  There are no judicial decisions defining this term in the crime of violence statute, but the same term appears in the crime of moral turpitude ground of inadmissibility.  See Appendix G, § 2, infra.[438]  Judicial decisions defining that term are therefore instructive as to its meaning, since Congress employed exactly the same phrase there.

 

Courts may be reluctant to apply the political offense exception to foreign convictions for fear of international repercussions, and will defer to the Attorney General in determining whether a foreign conviction falls within this exception.[439]  This hesitation, however, is inapplicable with respect to a federal or state conviction.

 

In order for an offense to constitute a “purely political offense,” it must have been committed in concert with other persons (or a common movement) in an effort to accomplish a political purpose.[440]  The benefits of this exception are not available to one who commits the act individually, independently, or without being connected with anyone else.[441]

Black’s Law Dictionary, p. 1376, citing 2 Stephen’s Criminal Law 70, states that, “as a designation of a class of crimes usually excepted from extradition treaties,” the term political offenses “denotes crimes which are incidental to and form a part of political disturbances; but it might also be understood to include offenses consisting in an attack upon the political order of things established in the country where committed, and even to include offenses committed to obtain any political object.”[442]

 

[T]his country  . . . recognize[s] that even traditional crimes may involve no moral turpitude, within the purview of American immigration laws, when their commission was “incidental to the . . . flight from great persecution or oppression by nations . . . against large racial, religious or political minorities.”[443]

The Foreign Affairs Manual provides:

 

Where there is any indication that the offense for which the alien was convicted was of a political nature, or prosecution therefor was politically motivated, the consular officer shall request CA/VO/L/A to make a determination.  The imposition of a cruel or unusual punishment, or of a punishment which is clearly disproportionate to the offense, as well as cases falling within the provisions of 22 C.F.R. 40.21(a)(6), raise the question as to whether the conviction was for a purely political reason.  In the following cases the aliens concerned were considered to have been convicted of “purely political offenses” within the meaning of INA 212(a)(2)(A)(i)(I) and (2)(B):

 

(1)     An alien who was convicted by a South African court of robbery and assault because the alien helped overpower the guards and forcefully took possession of a government car in attempting to escape from a civilian internment camp.

(2)     An alien convicted by a Netherlands court of having executed false ration coupons to benefit the underground during World War II.

(3)     An alien who was a member of the German SS and was sentenced by a Soviet court to nine years for theft of some paper bags.

(4)     An alien convicted by a Danish court of forging a receipt for a Danish passport and forging an official request for air transportation solely for the purpose of escaping from an Iron Curtain country.

(5)     The Attorney General ruled in 1938 that a violation of Article 156 of the German Criminal Code regarding false statements under oath, which would normally be held to involve moral turpitude, did not involve moral turpitude because in effect the false statement was made by a Jew as part of resistance against the economic measures taken against the Jews in Germany.  (39 Op. A.G. 215).[444]

 

The Manual went on to state: “The mere fact that an alien is or was a member of a racial, religious, or political minority shall not be considered as sufficient in itself to warrant a conclusion that the crime for which the alien was convicted was purely a political offense.”[445]

 

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

[438] “[A]ny alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of -- (I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime . . . is inadmissible.” INA § 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I) (emphasis supplied); Matter of B, 1 I. & N. Dec. 47 (AG 1941). 

[439] Efe v. Ashcroft, 293 F.3d 899, 905 n.5 (5th Cir. June 20, 2002) (“A decision by the Attorney General to deem certain violent offenses committed in another country as political in nature, and to allow the perpetrators to remain in the United States, may affect our relations with that country or its neighbors. The judiciary is not well positioned to shoulder primary responsibility for assessing the likelihood and importance of such diplomatic repercussions.” INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999).”).

[440] A common example would be a conviction arising out of participation in a political protest, e.g., a conviction of disorderly conduct or resisting arrest.

[441] Matter of K, 4 I. & N. Dec. 108 (BIA 1950).

[442] Matter of K, 4 I. & N. Dec. 108, 110-111 (BIA 1950).

[443] Sovich v. Esperdy, 319 F.2d 21, 28 (2d Cir. 1963), quoting 39 Op.Atty.Gen. 215-227.

[444] 9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a) N10(a).

[445] 9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a) N10(b).

BIA

AGGRAVATED FELONY - CRIME OF VIOLENCE - POLITICAL OFFENSE EXCEPTION
Matter of O'Cealleagh, 23 I. & N. Dec. 976 (BIA 2006) ("purely political offense" exception to CMT ground of inadmissibility under INA 212(a)(2)(A)(i)(I) must be determined to have been completely/totally political in view of the totality of the circumstances).

The BIA noted three possible definitions of "political offense":

One sort, which the respondent essentially contends is applicable to his conviction, involves baseless, trumped-up, or fabricated charges. There is no dispute among the parties that a fabricated or trumped-up charge may be a "purely political offense," as indeed we held in Matter of B-, supra. A second type of "political" offense, not involved here, is one that consists of an act or acts directed against the State, such as treason, sedition, or espionage, that contains none of the elements of ordinary crimes. The third kind of "political" crime, again not at issue here and denominated under extradition law as a "relative" political offense, is one in which a common offense such as murder, assault, or theft is so connected with a political act that the offense is regarded as "political." See 31A Am. Jur. 2d Extradition 44 (2002); see also Quinn v. Robinson, 783 F.2d 776, 793-94 (9th Cir. 1986). We have no occasion to explore the extent of portability of extradition principles to the "purely political offense" language we must apply, except to note the very different purposes served by extradition and removal or exclusion proceedings.

Matter of OCealleagh, 23 I. & N. Dec. Dec. 976, 980 (BIA 2006). However, for purposes of this decision the BIA looked solely to the first definition given, and did not determine whether the other two definitions have any part in defining a "purely political offense" for purposes of INA 212(a)(2)(A)(I)(i).

Third Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - FIREARMS POSSESSION
Henry v. BICE, 493 F.3d 303 (3d Cir. Jul. 11, 2007) (New York conviction for possession of a loaded firearm with intent to use it unlawfully against another person, under New York Penal Law 265.03, constitutes a crime of violence under 18 U.S.C. 16(b) and is therefore an aggravated felony for immigration purposes).

Ninth Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT IN THIRD DEGREE
United States v. Rendon-Duarte, 482 F.3d 1080, 1085 (9th Cir. March 21, 2007) (Alaska conviction of Assault in the Third Degree, in violation of Alaska Statute 11.41.220(a)(1) ("recklessly (A) places another person in fear of imminent serious physical injury by means of a dangerous instrument."), constituted a crime of violence under U.S.S.G. 4B1.2(a)(2)(2005) ("any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that . . . (2) ... involves conduct that presents a serious potential risk of physical injury to another."), for purposes of enhancing sentence for a federal conviction for being a felon in possession of firearms, in violation of in violation of 18 U.S.C. 922(g)(1) & 924(a)(2): "Whether the conduct was reckless or not has no bearing on the applicability of subsection (2) of the Guidelines.").