Safe Havens

 

(A)  Aggravated Felonies.[22]

 

            (1) Force

 

Second Circuit:

 

Chrzanoski v. Ashcroft, 327 F.3d 188 (2d Cir. 2003) (Connecticut conviction of third-degree assault in violation of section 53a-61(a)(1) of the Connecticut General Statutes, which involves the intentional infliction of physical injury upon another, is not a crime of violence under 18 U.S.C. § 16(a) (2000) and is therefore not an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) (2000), because use of force is not an element of the offense), overruling Matter of Martin, 23 I.& N. Dec. 491 (BIA 2002).

 

Fifth Circuit:

United States v. Martinez-Mata, 393 F.3d 625 (5th Cir. Dec. 10, 2004) (Texas conviction of retaliation under Penal Code § 36.06 is not a crime of violence for sentencing purposes since it does not have, as an element, the use, attempted use, or threatened use of physical force).

 

United States v. Sarmiento-Funes, 374 F.3d 336 (5th Cir. June 21, 2004) (Missouri conviction of sexual assault, in violation of Mo. Ann. Stat. § 566.040(1) (1999), committed if one has sexual intercourse with another person knowing that s/he does so without that person’s consent, did not qualify as a “crime of violence” under U.S.S.G. § 2L1.2 cmt. n.1(B)(ii) (2002), for purposes of 16-level enhancement of sentence for illegal re-entry, since the conviction does not require a use of force).

 

Seventh Circuit:

 

Flores v. Ashcroft, 350 F.3d 666 (7th Cir. Nov. 26, 2003) (reversing BIA to find that noncitizen convicted under Indiana battery statute was not deportable for conviction of a crime of domestic violence).

 

Ninth Circuit:

 

United States v. Sandoval, 390 F.3d 1077 (9th Cir. Aug. 19, 2004) (Washington conviction of assault in the third degree is not a crime of violence for sentencing purposes since the statute may be violated through an unlawful touching that does not involve substantial physical force or seriously risk physical injury).

Tenth Circuit:

 

United States v. Lucio-Lucio, 347 F.3d 1202 (10th Cir. 2003) (reversing district court to hold the Colorado DUI conviction is not a crime of violence).

 

District Courts:

 

Milbin v. Ashcroft, 293 F.Supp.2d 158 (D.Conn. Dec. 2, 2003) (Connecticut conviction under any subdivision of Conn. Gen. Stat. § 53a-61, which prohibits various ways of causing injury to a person, did not constitute a crime of violence within the meaning of INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), 18 U.S.C. § 16(a), because it does not have use of force as an element, and could be violated by guile, deception, or even deliberate omission), following Chrzanoski v. Ashcroft, 327 F.3d 188 (2d Cir. 2003).

Persaud v. McElroy, 225 F. Supp. 2d 420 (S.D.N.Y. Oct. 7, 2002) (New York conviction of assault with injury under N.Y. Penal Law § 120.05(6) was not a crime of violence under 18 U.S.C. § 16(a) because it did not require, as an element of the offense, that the defendant use physical force to inflict the injury, and the conviction was therefore not an aggravated felony under INA § 101(a)(43)(F) and § 237(a)(2)(A)(iii), 8 U.S.C. 1101(a)(43)(F) and 1227(a)(2)(A)(iii)).

 

            (2)  Intent

 

Fifth Circuit:

 

United States v. Vargas-Duran, 356 F.3d 598 (5th Cir. Jan. 8, 2004) (Texas conviction of intoxication assault — “by accident or mistake, while operating an aircraft, watercraft or motor vehicle in a public place while intoxicated, by reason of that intoxication causes serious bodily injury to another.” — in violation of Tex. Penal Code Ann. § 49.07 (1994), did not constitute a crime of violence, and so was not an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for purposes of a 16-level sentence enhancement for illegal re-entry under U.S.S.G. § 2L1.2(b)(1)(A)(ii), Application Note 1(B)(ii)(I) (2001), because the crime of violence definition requires that the defendant must intentionally avail himself of the use, attempted use, or threatened use of physical force against the person of another, and that this must be an element of the predicate offense).

 

 (3)  Sentence

 

Ninth Circuit:

 

United States v. Pimental-Flores, 339 F.3d 959 (9th Cir. August 11, 2003) (Washington conviction of third degree assault in violation of court order, under Rev. Code of Washington § 26.50.110(4) may fail to trigger a 16-level illegal re-entry sentence enhancement, as a crime of violence under U.S.S.G. § 2L1.2 (2001), because the offense might only have been a misdemeanor punishable by a maximum of one year imprisonment).

 

[22] See N. Tooby, Aggravated Felonies § § 5.13-5.15 (2003).