Safe Havens

(A)  Aggravated Felonies.

            Other motor vehicle offenses may fall within the aggravated felony crime of violence definition,[201] or other categories of aggravated felony, depending on the elements of the crime.

Third Circuit:

Francis v. Reno, 269 F.3d 162 (3d Cir. Oct. 16, 2001) (Pennsylvania conviction of vehicular homicide in violation of 75 Pa.C.S.A. § 3732, did not constitute an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), since misdemeanor vehicular homicide was not a “felony” under the INA, and even if conviction could be converted into felony, it did not involve a substantial risk of physical force required to make it an “aggravated felony.”).

Fifth Circuit:

United States v. Rodriquez-Rodriguez, 388 F.3d 466 (5th Cir. Oct. 15, 2004) (Texas Penal Code § 31.07(a), unauthorized use of a motor vehicle is not a crime of violence for illegal re-entry sentencing purposes since the statute does not require, as an element, the use of force).

United States v. Rodriguez-Rodriguez, 323 F.3d 317 (5th Cir. Feb 27, 2003) (Texas conviction of unauthorized use of a motor vehicle, in violation of Texas Penal Code Ann. § 30.02(a) (West Supp. 2003), is not a crime of violence within the meaning of U.S.S.G. § 2L1.2(b)(1)(A)(ii) because the offense is not listed in Application Note 1(B)(ii)(II) and does not have as an element the use, attempted use, or threatened use of physical force against the person of another).

Seventh Circuit:

Bazan-Reyes v. INS, 256 F.3d 600 (7th Cir. July 5, 2001) (Wisconsin conviction for homicide by intoxicated use of vehicle, in violation of Wis.St.1996, § 940.09, 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 required that offender actually hit someone, but did not require that he intentionally use force to achieve that result).

Ninth Circuit:

Penuliar v. Ashcroft, 395 F.3d 1037 (9th Cir. Jan. 12, 2005) (California conviction of unlawful driving or taking a vehicle, in violation of Vehicle Code § 10851(a), was not a theft offense, within the meaning of INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), because the statute and charge both were overbroad with respect to the definition of a theft offense by encompassing not only substantive theft offenses but aiding and abetting them as well).

[201] INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F).  See N. Tooby, Aggravated Felonies § § 5.13-5.15 (2003).