Safe Havens

(A)  Aggravated Felonies. [41]  See § 7.156, supra.

Fifth Circuit:

United States v. Insaulgarat, 378 F.3d 456 (5th Cir. July 19, 2004) (Florida conviction of aggravated stalking (after being subject to a domestic violence protective order, “knowingly, willfully, maliciously, and repeatedly follows or harasses another person”), in violation of Florida Statute § 784.048(4)(1993), did not constitute a crime of violence within the meaning of U.S.S.G. § 4B1.1, for federal sentencing purposes, where harassment is defined as “engag[ing] in a course of conduct directed at a specific person that causes substantial emotional distress in such person . . . ,” under Fla. Stat. Ann. § 784.048(1)(a), because the aggravated stalking statute can be violated without the use or threatened use of physical force, and the additional information provided in the aggravated stalking indictment about the underlying injunction does not allege conduct which, by its nature, poses a serious potential risk of physical injury).

The court 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.” United States v. Houston, 364 F.3d 243, 246 (5th Cir.2004).

Ninth Circuit:

Singh v. Ashcroft, 386 F.3d 1228 (9th Cir. Oct. 21, 2004) (Oregon Revised Statute § 166.065(1)(a)(A), punishing intentionally harassing or annoying another person by subjecting that person to offensive physical contact is not a crime of violence, and therefore not a crime of domestic violence for immigration purposes, since the force required to commit the offense, including spitting, is not necessarily “violent” force).

[41] See N. Tooby, Aggravated Felonies § § 5.13-5.15, Crimes of Violence (2003).