Safe Havens

The definition of aggravated felony includes a “crime of violence” as defined in 18 U.S.C. § 16, for which the term of imprisonment imposed is at least one year.[362]  There is an exception for a “purely political offense.”[363]  The BIA and courts use a “categorical” definition of crime of violence: the determination is made based on the elements of the statute under which the person was convicted, and not the actual conduct of the accused.[364]

            The definition of the crime of violence aggravated felony for immigration purposes is set out at 18 U.S.C. § 16:

(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.[365]

Whether an offense is a crime of violence under § 16(a) is usually clear: the offense as defined in the statute must contain as an essential statutory element the use or threat of physical force against person or property.[366]  The controversy concerning which offenses should be considered crimes of violence has usually centered on the definition of the term under § 16(b), requiring a felony involving the “substantial risk” that physical force may be “used” in the commission of the offense.

            Since this is a criminal, rather than an immigration, statute, the federal courts do not defer to the Board of Immigration Appeals in its interpretation.[367]

Other sentencing guidelines and statutes also depend upon characterization of a conviction as a “crime of violence,” although the definitions differ somewhat from the illegal re-entry aggravated felony guidelines.[368]

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

[363] See N. Tooby, J. Rollin & J. Foster, Crimes of Moral Turpitude § 4.7 (2005).

[364] See, e.g., Matter of Alcantar, 20 I. & N. Dec. 801 (BIA 1994); Matter of Palacios-Pinera, 22 I. & N. Dec. 434 (BIA 1998); United States v. Gonzalez-Lopez, 911 F.2d 542 (11th Cir. 1990).  In the related area of whether an offense is considered a crime of violence for federal sentencing purposes, the court will examine the elements only, rather than the underlying conduct.  United States v. David H., 29 F.3d 489 (9th Cir. 1994); see Taylor v. United States, 495 U.S. 575, 602 (1990) (18 U.S.C. § 924(e) generally requires a trial court to look only to the fact of conviction and the statutory definition of the prior offense to determine whether it is a “violent felony,” although court may look to record of conviction (charging papers and jury instructions) if needed to establish the elements of the offense of which the defendant was convicted).

[365] 18 U.S.C. § 16 (emphasis is supplied).

[366] United States v. Reve, 241 F.Supp.2d 470 (D.N.J. January 31, 2003) (New Jersey conviction of sexual assault, defined as committing an act of sexual penetration with a victim who is at least thirteen but less than sixteen years old and the actor is at least four years older than the victim, in violation of  N.J.S.A. former § 2C:14-2(c)(5) (1995), recodified, N.J.S.A. § 2C:14-2(c)(4) (Supp. 2002), did not constitute an aggravated felony under former INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), in effect prior to IIRAIRA, for purposes of revocation of naturalization, because the offense did not have as an element using, attempting to use, or threatening to use force against the victim, as required by 18 U.S.C. § 16(a), and government did not argue substantial risk under 18 U.S.C. § 16(b)).

[367] Flores v. Ashcroft, 350 F.3d 666 (7th Cir. November 26, 2003) (as no power to interpret 18 U.S.C. § 16, a criminal statute, has been delegated to the Attorney General, BIA cases interpreting that statute have only persuasive force).

[368] See United States v. Lee, 310 F.3d 787 (5th Cir. Oct. 28, 2002) (compare “crime of violence” as defined for other sentencing purposes under U.S.S.G. § 4B1.2(a)).