Safe Havens

 

The second part of the aggravated felony crime of violence definition includes “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.”[451]  This requires that the elements of the offense establish a “substantial risk” that the defendant will intentionally use physical force against the person or property of another.  Courts have taken great liberties with this requirement, utterly failing to insist upon any proof — as is normally required for every element of a ground of deportation — by clear, convincing, and unequivocal evidence that this factor is in fact present.

Instead, the courts have speculated about what might happen during the course of the offense, and then labeled it a “substantial risk.”  For example, courts have reasoned that a burglary of an inhabited (though temporarily unoccupied) dwelling presents a substantial risk that the defendant will assault the homeowner if s/he arrives home in flagrante delicto.  The actual chances that the homeowner will in fact arrive home during the burglary are not considered.  Even if the homeowner arrives home, what are the chances the burglar will in fact use force in the commission of the offense?  Certainly many burglars will simply flee.  No statistics are offered by the courts.  If the chances of the former occurring are, say, less than 10%, and the chances of the latter are also less than 10%, then the chances that both will occur in any given burglary would be less than one per cent.  It is hard for any balanced observer to describe something with a less than one per cent chance of occurrence as a “substantial risk.”  Counsel can attempt to offer actual statistics to substantiate this type of fact-based analysis in an effort to persuade a court that a given conviction does not in fact present such a substantial risk, and is therefore not an aggravated felony under this prong of the crime of violence definition.

 

Courts have sometimes held that sex with a minor is a “crime of violence” even though use of force is not an element of the offense.[452]  This is based on the fact that due to the victim’s young age and the nature of the offense, the court concludes that there is a substantial threat that physical force will be used.[453]  These cases have concerned sex with children under 14 years of age.  In particular, a frequently-cited Ninth Circuit case relied upon by the BIA, United States v. Wood, deals specifically with molestation of a very young child (four years old) and should be distinguished from cases involving consensual sex between teenagers.[454]  If the minor is older than age 13, and there is no great age disparity between the defendant and the victim, at least one federal court has found that the offense was not a crime of violence and hence not an aggravated felony.[455]

            In holding a Florida stalking conviction did not constitute a crime of violence under either definition, the Fifth Circuit reasoned that, on its face, the statute, and in turn the elements of the offense, do not require any use, or threatened or attempted use, of physical force, and there are forms of harassment that necessarily do not by their nature involve conduct that presents a serious risk of physical harm.  For example, harassment could be mere repetitive phone calls or suicide threats, and when an indictment is silent as to the offender’s actual conduct, as it is here, the court must proceed under the assumption that the noncitizen’s conduct constituted the “least culpable act satisfying the count of conviction.”[456]

 

            The BIA held that a California conviction of stalking based on harassing conduct in violation of Penal Code § 646.9(b), which proscribes stalking when there is a temporary restraining order, injunction, or any other court order in effect prohibiting the stalking behavior, is a crime of violence[457] and is therefore an aggravated felony[458] for immigration purposes.[459]  This case, many feel, was wrongly decided.  While it may be reasonable to conclude that an offense under this statute involves a substantial risk that harm or even death may occur, there is nothing in the language of the statute indicating that “physical force . . . may be used in the course of committing the offense,” as is required under 18 U.S.C. § 16(b).  The term “safety” in the statute is not limited to physical safety.[460]  The term thus encompasses mental or emotional safety, as well as physical safety.  The statute therefore does not require as an element that violence be used in the commission of the offense, and does not present a substantial risk of that occurrence.  The BIA has recognized that “criminal offenses that have the potential for harm do not always carry a substantial risk that force will be used in their commission.”[461]  This offense may involve a substantial risk of harm, but does not necessarily involve a substantial risk that violence will be used.[462]

[451] 18 U.S.C. § 16 (emphasis supplied).

[452] It has been held to be a crime of violence under 18 U.S.C. § 16(b) as a felony that inherently involves a substantial risk that force will be used.  Matter of B., 21 I. & N. Dec. 287 (BIA 1996) (where Maryland statute prohibits intercourse with child under 14 years, the offense invariably presents “a substantial risk that physical force will be wielded”) (citing United States v. Reyes-Castro, 13 F.3d 377 (10th Cir. 1993)); United States v. Wood, 52 F.3d 272, 275 (9th Cir.), cert. denied, 116 S.Ct. 217 (1995); Zaidi v. Ashcroft, 374 F.3d 357 (5th Cir. June 21, 2004) (Oklahoma conviction for sexual battery [“the intentional touching, mauling or feeling of the body or private parts of any person sixteen (16) years of age or older, in a lewd and lascivious manner and without the consent of that other person . . . .”], in violation of Okla. Stat. Ann. tit. 21, § 1123(B) (West 2002), constituted a “crime of violence,” as defined in 18 U.S.C. § 16(b), and thus an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), rendering the noncitizen subject to removal, under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), because the unconsented touching created a substantial risk that force would be used to complete the offense, and consequently the court of appeal lacked jurisdiction to review the final order of removal).

[453] Matter of B., supra.  See 18 U.S.C. § 16(b), and discussion of crimes of violence in California Criminal Law & Immigration § 9.10, Appendix 9-E following chapter 9 (2004).

[454] In Matter of B, supra, the BIA relied upon United States v. Wood, 52 F.3d 272, 275 (9th Cir.), cert. denied, 116 S.Ct. 217 (1995).  Wood should be distinguished because: (a) the court was using the definition of crime of violence found in the U.S. Sentencing Guidelines, which uses the test ‘risk of injury’ rather than ‘risk that force will be used’ and is far broader than the definition used in immigration law under 18 U.S.C. § 16 (see further discussion of this difference in K. Brady, California Criminal Law & Immigration, Appendix 9-E (2004)); (b) the court did not make a “categorical” analysis but considered the actual facts of the case; and (c) the victim was a four-year-old child, a fact the court relied upon extensively, and a situation far different from consenting sex between a teenage couple.

[455] Xiong v. INS, 173 F.3d 601 (7th Cir. 1999) (intercourse with a 15-year-old is not a crime of violence; court has jurisdiction to review charging documents to determine age of victim) (citing Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 2160 (1990)).  See K. Brady, California Criminal Law and Immigration § 9.7 (Part F) (2004), for further discussion of statutory rape as a crime of violence.

[456] United States v. Insaulgarat, 378 F.3d 456 (5th Cir. July 19, 2004), quoting United States v. Houston, 364 F.3d 243, 246 (5th Cir. 2004).

[457] 18 U.S.C. § 16(b) (2000).

[458] INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) (2000).

[459] Matter of Malta, 23 I. & N. Dec. 656 (BIA March 11, 2004).

[460] People v. Borrelli, 77 Cal.App.4th 703, 719 (2000).

[461] Matter of Puente, 22 I. & N. Dec. 1006 (BIA 1999).

[462] See also United States v. Jones, 231 F.3d 508 (9th Cir. 2000) (conviction for stalking under the California Penal Code not a “crime of violence” so as to merit an increase in base level offense under Sentencing Guidelines).