(A)  Aggravated Felonies.

 

            In Leocal v. Ashcroft,[196] the United States Supreme Court unanimously concluded that a Florida conviction of driving under the influence causing serious bodily injury[197] did not constitute an aggravated felony as a crime of violence,[198] for purposes of triggering deportation, since the offense did not have a mens rea requirement in excess of strict liability or negligence.  The offense therefore did not meet the statutory requirement of use of force in the commission of the offense under 18 U.S.C. § 16(a) or (b).  Since most states’ DUI offenses, like Florida’s, either require no mens rea at all, or mere negligence, a DUI conviction will generally not qualify as a crime of violence aggravated felony for deportation purposes or for purposes of enhancing the sentence for illegal re-entry after deportation.[199]

United States Supreme Court:

 

Leocal v. Ashcroft, ___ U.S. ___, 125 S.Ct. 377 (Nov. 9, 2004) (Florida conviction of driving under the influence and accidentally causing serious bodily injury, in violation of Florida Stats. Ann. § 316.193(3)(c), did not constitute an aggravated felony as a crime of violence, under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for purposes of triggering deportation, since the offense did not have a mens rea requirement in excess of strict liability or negligence, sufficient to meet the statutory requirement of use of force in the commission of the offense).

 

Board of Immigration Appeals:

 

Matter of Ramos, 23 I. & N. Dec. 336 (BIA 2002) (conviction of operating a motor vehicle while under the influence of intoxicating liquor in violation of chapter 90, § 24(1)(a)(1) of the Massachusetts General Laws is not a felony 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 and is therefore not a crime of violence).

 

Matter of Olivares-Martinez, 23 I. & N. Dec. 148 (BIA 2001) (under United States v. Chapa-Garza, 243 F.3d 921 (5th Cir. 2001) and United States v. Hernandez-Avalos, 251 F.3d 505 (5th Cir. 2001), a Texas conviction for felony DWI is not a crime of violence under 18 U.S.C. § 16(b)(1994), and is therefore not an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for purposes of removability in cases arising in the Fifth Circuit, so Matter of Puente, 23 I. & N. Dec. 336 (BIA 1999), will not be applied there).

 

Second Circuit:

 

Dalton v. Ashcroft, 257 F.3d 200 (2d Cir. July 20, 2001) (conviction of driving while intoxicated, in violation of New York Vehicle and Traffic Law § 1192.3, did not necessarily constitute a “crime of violence” under 18 U.S.C. § 16(b), since a risk of the use of force is not an integral part of the offense, and was thus not an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) for deportation purposes).

 

Fifth Circuit:

United States v. Cervantes-Nava, 281 F.3d 501 (5th Cir. Feb. 4, 2002), cert. denied, 122 S.Ct. 2379 (2002) (Texas conviction of driving while intoxicated was not crime of violence or aggravated felony, under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), warranting increase in base offense level for illegal re-entry offense, applying United States v. Chapa-Garza, 243 F.3d 921, 924 (5th Cir. 2001) to conviction not yet final on appeal).

 

United States v. Chapa-Garza, 243 F.3d 921 (5th Cir. 2001) (felony driving under the influence conviction does not constitute a crime of violence for aggravated felony purposes, since intentional force against the person or property of another is seldom, if ever, employed to commit the offense of felony driving while intoxicated). 

 

Seventh Circuit:

 

Bazan-Reyes v. INS, 256 F.3d 600, 603 (7th Cir. July 5, 2001) (Indiana conviction of a Class D felony, Operating a Vehicle While Intoxicated, with prior convictions, in violation of section 9-30-5-3 of the Indiana Code, with a sentence to three years imprisonment, was not an aggravated felony “crime of violence” under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for deportation purposes, since offense but did not require that the defendant intentionally use force).

 

Ninth Circuit:

 

Montiel-Barraza v. INS, 275 F.3d 1178 (9th Cir. Jan. 16, 2002) (California conviction of driving under the influence of alcohol in violation of California Vehicle Code § 23152(a), a felony under § 23175 as a result of four prior DUI convictions, was not a crime of violence, or an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) for immigration purposes).

 

United States v. Trinidad-Aquino, 259 F.3d 1140 (9th Cir. Aug. 8, 2001) (California conviction for driving under influence of alcohol with injury to another, a violation of California Vehicle Code § 23153, was not “crime of violence,” and thus was not “aggravated felony” under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) and did not warrant 16-level increase of illegal re-entry sentence under Sentencing Guidelines § 2L1.2(b)(1)(A)).

Tenth Circuit:

United States v. Torres-Ruiz, 113 Fed.Appx. 801 (10th Cir. Nov. 3, 2004) (California conviction for felony driving under the influence of alcohol did not constitute a “crime of violence” for purposes of enhancing a federal sentence for illegal re-entry).

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).

 

[196] Leocal v. Ashcroft, ___ U.S. ___, 125 S.Ct. 377 (Nov. 9, 2004).

[197] Florida Stats. Ann. § 316.193(3)(c).

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

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

Sixth Circuit

RELIEF - DISCRETIONARY DECISIONS - CONSIDERATION OF DUI CONVICTIONS
Kouljinski v. Keisler, 505 F.3d 534 (6th Cir. Oct. 16, 2007) (immigration judge may consider noncitizen's three convictions for driving under the influence of alcohol in denying the application for asylum as a matter of discretion).

Ninth Circuit

CRIME OF MORAL TURPITUDE - DRIVING ON SUSPENDED LICENSE UNDER INFLUENCE VERSUS BEING IN CONTROL OF VEHICLE
Hernandez-Martinez v. Ashcroft, 343 F.3d 1075 (9th Cir. 2003) (Arizona conviction under former ARS 28-697A is "divisible" in that the offense can be committed by either driving on a suspended license while under the influence of alcohol [a crime of moral turpitude], or by merely being in actual physical control of a vehicle [not a crime of moral turpitude]).