Safe Havens

(D)  List of Offenses for Which Juvenile May Be Transferred to Adult Court Under the FJDA.  Unless the offense is on the following list, a state adult conviction of a juvenile arguably cannot be considered a “conviction” for immigration purposes:

(1)    Offenses Committed After Fifteenth Birthday: Transfer of a juvenile to United States District Court for adult criminal proceedings is discretionary[33] if (a) s/he is alleged to have committed an act of juvenile delinquency “after” his or her fifteenth birthday, (b) the act would be a felony if committed by an adult,[34] and (c) the charge constitutes a “crime of violence,”[35] certain enumerated controlled substances offenses, [36] or certain enumerated firearms offenses.[37]

(2)        Offenses Committed After Thirteenth Birthday: Transfer of a juvenile, who committed the act “after” his or her thirteenth birthday, to United States District Court for adult criminal proceedings is discretionary if s/he committed an enumerated crime of violence,[38] or if the juvenile possessed a firearm during an enumerated offense.[39]

            Courts will use the same definition in interpreting “crime of violence” under the Federal Juvenile Delinquency Act as under the aggravated felony definition, which is set forth in 18 U.S.C. § 16.  A “categorical” approach focusing on the elements of the crime, rather than considering the facts of the case, is used to determine whether an offense is a crime of violence.[40]  Title 18 U.S.C. § 16 defines a crime of violence as:

(a)    an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(b)    any other offense 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.[41]

[33] 18 U.S.C. § 5032 (fourth paragraph).

[34] Under federal law, a felony is defined as an offense for which a sentence in excess of one year may be imposed.  18 U.S.C. § 3559(a)(5).  If the maximum is one year in custody, the offense is defined as a misdemeanor.  18 U.S.C. § 3559(a)(6).

[35] The standard for interpreting “crime of violence” is the same in this context as in other contexts.  United States v. MCE, 232 F.3d 1252 (9th Cir. 2000); see 18 U.S.C. § 16; United States v. Baker, 10 F.3d 1374 (9th Cir. 1993) (holding conspiracy was not always a crime of violence, under a categorical analysis, and the juvenile therefore could not be transferred to adult court even though overt acts included acts of violence); see also United States v. David H., 29 F.3d 489 (9th Cir. 1994) (finding that the statutory elements of robbery under California Penal Code  § 211 involved an element of “threatened use of physical force against the person of another”); but see United States v. Juvenile Male, 118 F.2d 1344 (9th Cir. 1997) (examining object of RICO conspiracy to commit Hobbs Act robberies to find a substantial risk of physical force).

[36] These are offenses “described in” 21 U.S.C. § 841 (manufacture, distribution, or possession with intent to distribute a controlled or counterfeit substance), 21 U.S.C. § 952(a) (importation of controlled substances or narcotic drugs but not others), 21 U.S.C. § 955 (possession of certain undeclared controlled substances or narcotic drugs on vessels or aircraft arriving in United States), 21 U.S.C. § 959 (manufacture or distribution of certain chemicals with knowledge or intent that they be illegally imported into the United States).

[37] These are 18 U.S.C. § 922(x) (sale or transfer of handgun or handgun ammunition to juvenile; knowing possession by juvenile of handgun or handgun ammunition), 18 U.S.C. § 924(b) (transportation or receipt of firearm or ammunition in interstate or foreign commerce with intent or knowledge that it will be used to commit a felony), 18 U.S.C. § x924(g) (interstate or foreign travel to attempt to obtain a firearm with intent to commit RICO offense, crime of violence, or any state or federal controlled substances offense), and 18 U.S.C. § 924(h) (transfer of firearm with knowledge it will be used to commit a crime of violence or drug trafficking offense).

[38] Transfer is allowed if the offense is a crime of violence under 18 U.S.C. § 113(a) (presumably this refers to assault with intent to commit murder, currently under § 113(a)(1), as listed under prior statutory numbering system), § 113(b) (presumably this refers to assault with intent to commit any felony, currently under § 113(a)(2), as listed under prior statutory numbering system), § 113(c) (presumably this refers to assault with a dangerous weapon, with intent to do bodily harm, and without just cause or excuse, currently under § 113(a)(3), under prior statutory numbering system), § 1111 (first- and second-degree murder), and § 1113 (attempt to commit murder or manslaughter).

[39] These are an offense described in 18 U.S.C. § 2111 (robbery and attempted robbery), § 2113 (bank robbery and attempted robbery), § 2241(a) (aggravated sexual abuse by force or threat), or § 2241(c) (child sexual abuse).

[40] United States v. MCE, 232 F.3d 1252 (9th Cir. 2000); United States v. Gonzalez-Lopez, 911 F.2d 542 (11th Cir. 1990); Matter of Alcantar, 20 I. & N. Dec. 801 (BIA 1994); Matter of Palacios-Pinera, 22 I. & N. Dec. 434 (BIA 1998).

[41] 18 U.S.C. § 16 (emphasis supplied).