Safe Havens

(A)  Aggravated Felonies.

Board of Immigration Appeals:

Matter of Vargas-Sarmiento, 23 I. & N. Dec. 651, 654 (BIA 2004) (New York conviction of abortion first-degree manslaughter, in violation of Penal Law § 125.20(3), does not constitute a crime of violence and is therefore not an aggravated felony for immigration purposes, under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F)(2000)).

Second Circuit:

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).

Fifth Circuit:

United States v. Dominguez-Ochoa, 386 F.3d 639 (5th Cir. Sept. 22, 2004) (Texas conviction of criminally negligent homicide, under Tex. Penal Code § 19.05, did not constitute crime of violence aggravated felony under U.S.S.G. § 2L1.2(b)(1)(A)(ii)(2002), for purposes of a 16-level enhancement of sentence for illegal re-entry, since it does not include as an element the intentional “use, attempted use, or threatened use” of force and it is not one of the offenses enumerated in the Guidelines or its equivalent because it does not require the mens rea of recklessness which is required for manslaughter).