The INA defines as an aggravated felony: “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 [is] at least one year.”[100]  The crime of violence statute referred to has two alternative tests: (a) any offense (including misdemeanors) whose elements require use or threat of force against the person or property of another,[101] or (b) felony offenses whose elements carry a substantial risk that force may be used in the commission of the offense.[102]

 

The definition of a “crime of violence” may differ upon the context.  While the term has always been defined under 18 U.S.C. § 16 for purposes of defining an aggravated felony for immigration purposes, at least two different definitions have been used to find an offense is a crime of violence for illegal re-entry sentencing purposes.[103]  Cases under any one of these three different definitions of “crime of violence” do not necessarily apply to the others.

 

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

[101] See § § 5.17-5.22, infra.

[102] See § § 5.23-5.31, infra.

[103] See § 4.40, supra.

AGGRAVATED FELONY - CRIME OF VIOLENCE - THIS AGGRAVATED FELONY DEFINITION IS GENERIC, NOT CIRCUMSTANCE-SPECIFIC, AND SO IS SUBJECT TO THE STRICT CATEGORICAL ANALYSIS
Nijhawan v. Holder, 557 U.S. ___, 129 S.Ct. 2294, 2300 (Jun. 15, 2009), citing James v. United States, 550 U.S. 192, 212, 127 S.Ct. 1586 (2007)(while the Court did not directly address whether a "crime of violence" aggravated felony is a generic definition, or a circumstance-specitif definition, it concluded it had already applied the traditional categorical analysis to very similar language in the Armed Career Criminal Act which defines the "violent" felonies it covers to include "burglary, arson, or extortion" and "crime[s]" that have "as an element" the use or threatened use of force. 18 U.S.C. 924(e)(2)(B)(i)-(ii). This language refers directly to generic crimes. The statute, however, contains other, more ambiguous language, covering "crime[s]" that "involv[e] conduct that presents a serious potential risk of physical injury to another." Ibid. (emphasis added). While this language poses greater interpretive difficulty, the Court held that it too refers to crimes as generically defined).

Third Circuit

AGGRAVATED FELONY - COUNTERFEITING - TRAFFICKING IN COUNTERFEIT GOODS
Park v. Attorney General of the United States, ___ F.3d ___, 2006 WL 3821408 (3d Cir. Dec. 29, 2006) (federal conviction of trafficking in counterfeit goods or services in violation of the Trademark Counterfeiting Act of 1984, 18 U.S.C. 2320, is an aggravated felony conviction for "an offense relating to ... counterfeiting," under INA 101(a)(43)(R), 8 U.S.C. 1101(a)(43)(R)).

Fifth Circuit

STATUTORY INTERPRETATION
Rodriguez v. Holder, 705 F.3d 207, (5th Cir. Jan. 16, 2013) (Section 16 has both criminal and noncriminal applications, and thus, the rule of lenity applies. We therefore are constrained to interpret any ambiguity in the statute in [Rodriguez's] favor.) (footnotes omitted); quoting Leocal v. Ashcroft, 543 U.S. 1, 11 n. 8, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ROBBERY
United States v. Santiesteban-Hernandez, __ F.3d __, 2006 WL 3072564 (5th Cir. Oct. 31, 2006) (Texas conviction for violation of Penal Code 29.02(a)(1), robbery, is a crime of violence for illegal re-entry sentencing purposes, since the "crime of violence" definition, U.S.S.G. 2L1.2(b)(1)(A)(ii), specifically includes "robbery" convictions, and the Texas offense falls within the generic definition of "robbery" [requiring theft and immediate danger to a person]).
http://caselaw.lp.findlaw.com/data2/circs/5th/0550399cr0p.pdf

Seventh Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - CATEGORICAL ANALYSIS LIMITED TO ELEMENTS OF OFFENSE OF CONVICTION
LaGuerre v. Mukasey, 526 F.3d 1037 (7th Cir. May 20, 2008) (per curiam) (rejecting DHS argument court should go beyond elements of offense of conviction to determine whether state conviction constituted aggravated felony crime of violence under INA 101(a)(43)(f), 8 U.S.C. 1101(a)(43)(F)).

Tenth Circuit

ASSAULT - FEDERAL COMMON LAW DEFINITION
United States v. Hathaway, 318 F.3d 1001, 1007 (10th Cir. 2003) (at common law simple assault was defined as "either a willful attempt to inflict injury upon the person of another, or by a threat to inflict injury upon the person of another which, when coupled with an apparent present ability, causes a reasonable apprehension of immediate bodily harm.").

Other

RESOURCES " DOMESTIC VIOLENCE & CRIME OF VIOLENCE
NIP-NLG and Immigrant Defense Project have written an advisory on the Supreme Courts recent decision in U.S v. Castleman. The advisory explains why this decision should have no negative impact on immigration law and how it may even support arguments to narrow the domestic violence and aggravated felony removal grounds. The advisory is located at: http://www.nationalimmigrationproject.org/publications.htm

BIBLIOGRAPHY " CRIMES OF VIOLENCE
Rosemary Cakmis, Construing Crimes of Violence After Johnson v. United States, 15 Benders Immigration Bulletin 795 (June 1, 2010); Rebecca Sharpless, Toward a True Elements Test, 62 University of Miami Law Review 979 (2008).