Safe Havens

The question whether force is used is different than the question whether injury has occurred.  As the Supreme Court stated in Leocal v. Ashcroft:

As we said in a similar context in Bailey, “use” requires active employment.  While one may, in theory, actively employ something in an accidental manner, it is much less natural to say that a person actively employs physical force against another person by accident. Thus, a person would “use . . . physical force against” another when pushing him; however, we would not ordinarily say a person “use[s] . . . physical force against” another by stumbling and falling into him. When interpreting a statute, we must give words their “ordinary or natural” meaning.  The key phrase in § 16(a)--the “use . . . of physical force against the person or property of another”--most naturally suggests a higher degree of intent than negligent or merely accidental conduct.  Petitioner’s DUI offense therefore is not a crime of violence under § 16(a).[468]

Many offenses require proof of actual injury.  This question is a very different one than whether they require that force be used to cause that injury.[469]

As the BIA has stated:

In addition, the decisions of the United States Court of Appeals for the Third Circuit strongly suggest that it would find, at the very least, that a crime requiring only criminal negligence or no mens rea at all is not an offense that, by its nature, involves a substantial risk that physical force may be used in the course of committing the crime. See Francis v. Reno, 269 F.3d 162, 172-73 (3d Cir. 2001) (stating that vehicular homicide, which requires only proof of criminal negligence, is not an offense that, by its nature, involves a substantial risk that physical force may be used in its commission); United States v. Parson, 955 F.2d 858, 866 (3d Cir. 1992) (indicating that “use of physical force” refers to an intentional act, and that although a drunk driver may risk causing injury, in most cases he does not intend to “use” force to cause this harm). [470]

This question of the “use” of force is very closely related to the question of the intent required to trigger deportation under this category, i.e., whether the use of force must be intentional.  See § 7.59, infra.

            A possession offense may not involve sufficient “use” to qualify as a crime of violence.[471]

[468] Id. at 382 (internal citations omitted). 

[469] Jobson v. Ashcroft, 326 F.3d 367 (2d Cir. April 22, 2003) (New York conviction of manslaughter in the second degree under N.Y.P.L. § 125.15(1), is a not 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), for deportation purposes, since the minimum criminal conduct required to violate the statute does not necessarily present a substantial risk that the defendant will intentionally use physical force against the person or property of another, because the scope of the law is broad; passive conduct or omissions alone are sufficient for conviction).

[470] Matter of Ramos, 23 I. & N. Dec. 336, 341-342 (BIA 2002).

[471] United States v. Fish, 368 F.3d 1200 (9th Cir. May 28, 2004) (Oregon conviction of possession of a destructive device, under Or. Rev. Stat. § 166.382, did not constitute “a crime of violence” under the United States Sentencing Guidelines to allow an increased offense level in determining sentencing).