The statute defining “crimes of violence,” for purposes of determining whether a state conviction constitutes an aggravated felony, is 18 U.S.C. § 16.[70]

 

            Unlike § 16(b), § 16(a) does not require an offense with use of force as an element to be a felony in order to be classed as a crime of violence.  Thus, misdemeanor assault, which does have force as an element, could be considered a crime of violence under § 16(a), and thus an aggravated felony if a sentence of one year or more is imposed.

 

Section 16(b), on the other hand, defines “crime of violence” to include “(b) any other offense [i.e., any offense which does not have use or threat of force as an element as required under § 16(a)] that is a felony and 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.”[71]  This is the statute under which the BIA has sometimes held involuntary manslaughter, driving under the influence, and other offenses to be crimes of violence that do not have violence or the threat of violence as an element.

 

            Thus, if the elements of the offense do not include the use or threat of force, then the conviction must be a felony in order to qualify as an aggravated felony under the “crime of violence” definition.  Therefore, if a felony conviction that qualifies as a crime of violence only under § 16(b) can be reduced to a misdemeanor conviction, it will no longer constitute a felony and cannot be considered an aggravated felony under this part of the definition.  Thus it is clear that a conviction of burglary, for example, which does not have use of force as an element, must be a felony in order to be a crime of violence under § 16(b) and hence an aggravated felony.

 

The BIA has formerly held that driving under the influence is a crime of violence,[3] but the Ninth Circuit has disagreed in the criminal context.[72]  The Ninth Circuit has also held in the criminal context that aggravated reckless driving is a crime of violence,[5] and that involuntary manslaughter is a crime of violence even though it does not require intent to injure.  Courts have sometimes held that sex with a minor is a “crime of violence” even though use of force is not an element of the offense.[73]  This is based on the fact that due to the victim's young age and the nature of the offense, there is a substantial threat that physical force will be used.[74]  These cases have concerned sex with children under 14 years of age.  In particular, a frequently-cited Ninth Circuit case relied upon by the BIA, United States v. Wood, deals specifically with molestation of a very young child and should be distinguished from cases involving consensual sex between teenagers.[75]

 

If the minor is older than age 13, and there is no great age disparity between the defendant and the victim, at least one federal court has found that the offense was not a crime of violence and hence not an aggravated felony.[76]

 

            A conviction of any offense considered to be an aggravated felony under 18 U.S.C. § 16(b), which is reduced to a misdemeanor, will no longer constitute an aggravated felony.

 

            This reasoning would hold true not only for immigration cases, but also for illegal re-entry sentencing cases, and all cases in which the definition “crime of violence” under this statute is dispositive.

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

[78] 18 U.S.C. § 16(b) (emphasis added).

[70] Matter of Magallanes-Garcia, 22 I. N. Dec. 1 (BIA 1998) (driving under the influence); Matter of Puente, 22 I. & N. Dec. 1006 (BIA 1999) (driving under the influence).

[71] United States v. Trinidad-Aquino, 259 F.3d 1140 (9th Cir. Aug. 8, 2001).

[72] United States v. Ceron-Sanchez, 222 F.3d 1169 (9th Cir. 2000) (aggravated assault with a deadly weapon or dangerous instrument under Arizona law constitutes a crime of violence under 8 U.S.C. § 1101(a)(43)(F), and therefore illegal noncitizen convicted of reckless driving properly received 16-level sentence enhancement under the U.S. Sentencing Guidelines § 2L1.2 for being a deported noncitizen found in United States).

[73] It has been held to be a crime of violence under 18 U.S.C. § 16(b) as a felony that inherently involves a substantial risk that force will be used.  Matter of B., 21 I. & N. Dec. 287 (BIA 1996) (where Maryland statute prohibits intercourse with child under 14 years, the offense invariably presents “a substantial risk that physical force will be wielded”) (citing United States v. Reyes-Castro, 13 F.3d 377 (10th Cir. 1993)); United States v. Wood, 52 F.3d 272, 275 (9th Cir.), cert. denied, 116 S.Ct. 217 (1995).

[74] Matter of B., supra.  See 18 U.S.C. § 16(b), and discussion of crimes of violence in California Criminal Law & Immigration, § 9.10 and California Criminal Law & Immigration, Appendix 9-E following chapter 9.

[75] In Matter of B., supra, the BIA relied upon United States v. Wood, 52 F.3d 272, 275 (9th Cir.), cert. denied, 116 S.Ct. 217 (1995).  Wood should be distinguished because: (a) the court was using the definition of crime of violence found in the U.S. Sentencing Guidelines, which uses the test ‘risk of injury’ rather than ‘risk that force will be used’ and is far broader than the definition used in immigration law under 18 U.S.C. § 16 (see further discussion of this difference in California Criminal Law & Immigration, Appendix 9-E); (b) the court did not make a “categorical” analysis but considered the actual facts of the case; and (c) the victim was a four-year-old child, a fact the court relied upon extensively, and a situation far different from consenting sex between a teenage couple.

[76] Xiong v. INS, 173 F.3d 601 (7th Cir. 1999) (intercourse with a 15-year-old is not a crime of violence; court has jurisdiction to review charging documents to determine age of victim)(citing Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 2160 (1990)).  See California Criminal Law and Immigration (2002), § 9.7 (Part F), for further discussion of statutory rape as a crime of violence.

Second Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - 18 U.S.C. 16(b) - FELONY -- MASSACHUSETTS MISDEMEANOR CONVICTION OF ASSAULT ON OFFICER CONSTITUTED FELONY UNDER FEDERAL DEFINITION OF FELONY SINCE MAXIMUM TERM OF IMPRISONMENT EXCEEDED ONE YEAR
Blake v. Gonzales, ___ F.3d ___, ___, 2007 WL 914865 (2d Cir. March 28, 2007) (Massachusetts conviction of assault on police officer, under Massachusetts General Laws chapter 265, section 13D, with suspended two-year sentence to imprisonment, constituted felony for purposes of being a crime of violence aggravated felony, as defined under 18 U.S.C. 16(b), since the court applied the federal definition of felony, 18 U.S.C. 3559(a), and the maximum term of imprisonment for the offense of conviction was in excess of one year: "Regardless of how Massachusetts law defines it, we are obligated to apply the federal-law definition of a felony. Cf. United States v. Campbell, 167 F.3d 94, 97 (2d Cir.1999) (observing that "[t]he immigration laws contain no provision ... indicat[ing] that they are to be interpreted in accordance with state law," and holding that whether a person has been convicted of an aggravated felony within the language of 8 U.S.C. 1326(b)(2) "is necessarily ... a question of federal, not state, law, despite the fact that the predicate offense and its punishment are defined by the law of the State" (internal quotation marks omitted)).").

Fifth Circuit

FELONY CLASSIFICATION
United States v. Alfaro-Hernandez, __ F.3d __ (5th Cir. Jun. 16, 2006) (felony classification of defendants underlying offense, for purposes of sentence imposed upon revocation of defendant's supervised release on a conviction for transportation of an illegal alien, is determined by the underlying statute of conviction, not the Guidelines range as calculated by the district court). http://caselaw.lp.findlaw.com/data2/circs/5th/0540327cr0p.pdf

Tenth Circuit

FELONY/MISDEMEANOR DEFINITION
United States v. Cordova-Arevalo, 456 F.3d 1229 (10th Cir. Aug. 8, 2006) (Colorado conviction for assault in the third degree, in violation of Colo.Rev.Stat. 18-3-204, although labeled by the State as a misdemeanor, is a felony for illegal re-entry sentencing purposes since the maximum possible punishment for the offense is 18 months).

Other

CRIMINAL DEFENSE " SENTENCE " FEDERAL MISDEMEANOR STATUTES
http://xa.yimg.com/kq/groups/3815052/422498396/name/Federal_Misdemeanor_Statutes.pdf (Aug. 18. 2011) (comprehensive list of federal misdemeanors carrying maximum possible sentence of one year in custody).

AGGRAVATED FELONY " ONE YEAR SENTENCE IMPOSED " WASHINGTON STATE MISDEMEANOR MAXIMUM NOW 364 DAYS
In Apr., 2011, the Washington State Legislature redefined the maximum sentence for a gross misdemeanor to 364 Days, one day lower than the one-year sentence imposed required for many aggravated felonies, see N. TOOBY & J. ROLLIN, CRIMINAL DEFENSE OF IMMIGRANTS 10.66 (2007), and one day lower than the maximum required to make a single crime of moral turpitude deportable. INA 237(a)(2)(A)(i). This law will not go into effect until 90 days after the end of the 2011 legislative session, but it is worth arguing now that Washington judges should stop imposing 365-day sentences for gross misdemeanors. In arguing for this, counsel can quote the legislative intent section of the bill which states: The legislature finds that a maximum sentence by a court in the state of Washington for a gross misdemeanor can, under federal law, result in the automatic deportation of a person who has lawfully immigrated to the United States, is a victim of domestic violence or a political refugee, even when all or part of the sentence to total confinement is suspended. The legislature further finds that this is a disproportionate outcome, when compared to a person who has been convicted of certain felonies which, under the state's determinate sentencing law, must be sentenced to less than one year and, hence, either have no impact on that person's residency status or will provide that person an opportunity to be heard in immigration proceedings where the court will determine whether deportation is appropriate. Therefore, it is the intent of the legislature to cure this inequity by reducing the maximum sentence for a gross misdemeanor by one day. For courts that are unwilling to sentence persons to less than 365 days, counsel can make a record by citing State v. Grayson, 154 Wn.2d 333 (2005). In Grayson, the court categorically denied granting DOSA sentences, upon the belief that there was insufficient funding for the DOSA program for it to be effective. This was found to be an abuse of discretion. The Supreme Court held that a trial court abuses discretion when it fails to consider alternative sentences. Id. at 342; see also State v. Garcia-Martinez, 88 Wn.App. 322, 330 (1997). New Mexico, Wisconsin and Illinois are other states that also have 364-day maximum sentences for some misdemeanors. Thanks to Jonathan Moore and Ann Benson.