The nature of the intent element sufficient to constitute a crime of violence under § 16(b) is very similar, according to the Supreme Court, to that required under 16(a).  See § 7.49, supra.

 

SAFE HAVEN - CRIME OF VIOLENCE - ACCIDENTAL DISCHARGE OF FIREARM SUFFICIENT FOR CONVICTION UNDER 18 U.S.C. 924(c)(1)(A)(iii) SO IT CANNOT CONSTITUTE AN AGGRAVATED FELONY CRIME OF VIOLENCE
Dean v. United States, 129 S.Ct. 1849 (Apr. 29, 2009) (unintentional or accidental discharge of firearm during violent or drug-trafficking offense is sufficient to warrant 10-year mandatory minimum sentence pursuant to 18 U.S.C. 924(c)(1)(A)(iii)).

Therefore, this enhancement does not convert the substantive offense into an aggravated felony crime of violence because the intent required for this sentence enhancement is insufficient under Leocal to constitute a crime of violence.

AGGRAVATED FELONY - CRIME OF VIOLENCE -- INTENT REQUIREMENT
Leocal v. Ashcroft, ___ U.S. ___, 160 L. Ed. 2d 271, 125 S. Ct. 377 (2004) (state statute of conviction must require at least the same level of scienter as the relevant federal statute in order for the state conviction to constitute an aggravated felony).

BIA

AGGRAVATED FELONY " CRIME OF VIOLENCE " INTENT
Matter of Singh, 25 I. & N. Dec. 670 (BIA 2012) (an offense that may be committed recklessly may still be considered an aggravated felony crime of violence under 18 U.S.C. 16(b)).

DOMESTIC VIOLENCE " VIOLATION OF PROTECTION ORDER
Matter of Strydom, 25 I. & N. Dec. 507 (BIA May 24, 2011) (Kansas conviction for attempting to make a phone call to his wifes home in violation of the no-contact provision of a temporary protection order, in violation of Kan. Stats. 21-3843(a)(1), triggers deportation under INA 237(a)(2)(E)(ii)), following Szalai v. Holder, 572 F.3d 975, 982 (9th Cir. 2009) (petitioners violation of the 100 yard stay away provision in Oregon Family Abuse Prevention Act restraining order triggers deportation under INA 237(a)(2)(E)(ii)); Alanis-Alvarado v. Holder, 558 F.3d 833, 839-40 (9th Cir. 2009) (injunction against telephoning a domestic partner in the context of a domestic violence protective order involves protection against violence, threats, or harassment, even if it is possible that the [offenders] violative conduct did not independently constitute violence, threats, or harassment[,] since INA 237(a)(2)(E)(ii) only requires a violation of the portion of a protection order that involves protection against credible threats of such conduct.) (internal quotation marks omitted).

Third Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " 18 U.S.C. 16(b) " RECKLESS MENS REA DOES NOT NECESSARILY BAR CRIME OF VIOLENCE UNDER 18 U.S.C. 16(b)
Aguilar v. Attorney General of the U.S., ___ F.3d ___, 2011 WL 5925141 (3d Cir. Nov. 29, 2011) (Pennsylvania conviction of sexual assault, under 18 Pa. Cons.Stat. 3124.1, constituted a crime of violence under 18 U.S.C. 16(b), and was therefore an aggravated felony under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), even though the offense has a minimum mens rea of recklessness; because sexual assault raises a substantial risk that the perpetrator will intentionally use force in furtherance of the offense, we agree with the BIA that it constitutes a crime of violence under 16(b).).

AGGRAVATED FELONY - VEHICULAR HOMICIDE
Oyebanji v. Gonzales, 418 F.3d 260 (3rd Cir. Aug. 11, 2005) (vehicular homicide under New Jersey Statutes 2C:11-5, is not a crime of violence as defined by 18 U.S.C. 16, since the statue requires only a reckless intent)
http://caselaw.lp.findlaw.com/data2/circs/3rd/034143p.pdf

AGGRAVATED FELONY - CRIME OF VIOLENCE - RECKLESS MENS REA INSUFFICIENT
Popal v. Gonzalez, __ F.3d __, 2005 WL 1791998 (3d Cir. July 29, 2005) (simple assault (reckless), in violation of Pennsylvania Penal Code 18 Pa.C.S.A. 2701, is not an aggravated felony crime of violence for immigration purposes, since a mens rea of recklessness is insufficient to qualify as a crime of violence). Following Tran v. Gonzales, __ F.3d __, 2005 WL 1620320 (3d Cir. July 12, 2005).

Fourth Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT - 18 USC 16(b)
Garcia v. Gonzales, ___ F.3d ___, 2006 WL 2061819 (4th Cir. Jul. 26, 2006) (BIA interpretation of the "substantial risk" requirement in 18 U.S.C. 16(b), looking to whether "by its nature, the offense involves that in the course of committing it the offender will intrinsically employ power, violence, or pressure against a person or thing" is foreclosed by Leocal v. Ashcroft, 543 U.S. 1, 10 (2004) (footnote omitted) (italics in original), which held in order for there to be a crime of violence sufficient to trigger deportation, "[t]he reckless disregard [requirement] in 16 [must], relate not to the general conduct or to the possibility that harm will result from a persons conduct, but to the risk that the use of physical force against another might be required in committing a crime.").

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSALUT - 18 USC 16(b)
Garcia v. Gonzales, ___ F.3d ___, 2006 WL 2061819 (4th Cir. Jul. 26, 2006) (New York conviction of second-degree assault, in violation of N.Y. Penal Law 120.05 ["recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument"], does not constitute a "crime of violence" under 18 U.S.C. 16(b), and thus is not an aggravated felony under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), since recklessness, like negligence, is not enough to support a determination that a crime is a "crime of violence"), following Bejarano-Urrutia v. Gonzales, 413 F.3d 444, 447 (4th Cir. 2005) (such a violation did not qualify as a "crime of violence" because "[a]lthough the crime of violating Va. Code Ann. 18.2-36 intrinsically involves a substantial risk that the defendants actions will cause physical harm, it does not intrinsically involve a substantial risk that force will be applied as a means to an end.").

Fifth Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - BURGLARY
United States v. Constante, 544 F.3d 584 (5th Cir. Oct. 6, 2008) (Texas conviction for burglary, in violation of Texas Penal Code 30.02(a)(3) [enters a building or habitation and commits or attempts to commit a felony, theft, or an assault] did not constitute a crime of violence for ACCA purposes where statute of conviction does not require specific intent).

Tenth Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - ELEMENT RELATING TO INJURY RATHER THAN USE OF FORCE
United States v. Perez-Vargas, ___ F.3d ___ (10th Cir. 2005) (Colorado conviction for third-degree assault, "knowingly or recklessly causes bodily injury to another person or with criminal negligence he causes bodily injury to another person by means of a deadly weapon," in violation of C.R.S. 18-3-204, where judicial decisions did not require use of force, did not constitute a "crime of violence," as defined by United States Sentencing Guideline (USSG) 2L1.2, for purposes of enhancement of a sentence for illegal reentry, since the criminal statute has as an element causation of injury, rather than use of force: "In other words, Colorado's statute looks to the consequences of the conduct, however applied, whereas the Guidelines look to the type of conduct that causes the injury.").

Other

AGGRAVATED FELONY - CRIME OF VIOLENCE - RECKLESS INTENT INSUFFICIENT
See § 7.49

AGGRAVATED FELONY - CRIME OF VIOLENCE - VEHICULAR MANSLAUGHTER
See § 7.49