Criminal Defense of Immigrants


§ 19.34 K. Crimes of Violence

Skip to § 19.

For more text, click "Next Page>"

The INA defines as an aggravated felony “a crime of violence (as defined in section 16 of title 18, United States Code, but not including a purely political offense) for which the term of imprisonment [is] at least one year.”[400]  The definition of the crime of violence aggravated felony for immigration purposes is set out at 18 U.S.C. § 16:


(a)           an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(b)           any other offense 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.[401]


Whether an offense is a crime of violence under § 16(a) is usually clear: the offense as defined in the criminal statute of conviction must contain as an essential statutory element the use or threat of physical force against person or property.[402]  The controversy concerning which offenses should be considered crimes of violence has usually centered on the definition of the term under § 16(b), a felony involving the “substantial risk” that physical force may be “used” for the commission of the offense.  Since this is a criminal, rather than an immigration, statute, the federal courts do not defer to the Board of Immigration Appeals in its interpretation.[403]


A conviction for a crime of violence under 18 U.S.C. § 16(a) or (b) only becomes an aggravated felony only if a sentence of one year or more is imposed.  See § 19.10, supra, for a discussion of this requirement.  The aggravated felony crime of violence definition formerly required a sentence imposed of five years.  IIRAIRA reduced the sentence imposed requirement to one year in 1996.  This reduced sentence requirement is applied retroactively to convictions predating IIRAIRA’s effective date.[404]


Section 16(a) of Title 18, United States Code does not require an offense to be a felony in order to be classified as a crime of violence under this subdivision.  Thus a misdemeanor crime of violence under § 16(a) will trigger removal as an aggravated felony as long as a sentence of one year or more is imposed.[405]  Section 16(b), on the other hand, requires that the offense be a felony.  See § 19.42, infra.


The definition of a “crime of violence” may differ depending upon the context.  While the term has always been defined under 18 U.S.C. § 16 for purposes of defining an aggravated felony for immigration purposes, at least two different definitions have been used to find an offense is a crime of violence for illegal re-entry sentencing purposes.[406]  Cases under any one of these three different definitions of “crime of violence” do not necessarily apply to the others.

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

[401] 18 U.S.C. § 16 (emphasis supplied).

[402] United States v. Reve, 241 F.Supp.2d 470 (D.N.J. Jan. 31, 2003) (New Jersey conviction of sexual assault, defined as committing an act of sexual penetration with a victim who is at least thirteen but less than sixteen years old and the actor is at least four years older than the victim, in violation of former N.J.S.A. § 2C:14-2(c)(5) (1995), recodified, N.J.S.A. § 2C:14-2(c)(4) (Supp. 2002), did not constitute an aggravated felony crime of violence, because the offense did not have as an element using, attempting to use, or threatening to use force against the victim, as required by 18 U.S.C. § 16(a); government did not argue substantial risk under 18 U.S.C. § 16(b)).

[403] See § 15.37, supra.

[404] See § 19.21, supra.

[405] United States v. Gonzalez-Tamariz, 310 F.3d 1168 (9th Cir. Nov. 18, 2002) (Nevada conviction of battery causing substantial bodily harm, in violation of Nev.Rev.St. § 200.481, constituted an aggravated felony crime of violence with one-year sentence imposed, regardless of its state law label as a misdemeanor with one-year maximum possible sentence); accord, United States v. Urias-Escobar, 281 F.3d 165, 168 (5th Cir. 2002), cert. denied, 122 S.Ct. 2377 (2002); United States v. Pacheco, 225 F.3d 148, 149 (2d Cir. 2000); United States v. Marin Navarette, 244 F.3d 1284, 1286-87 (11th Cir. 2001); United States v. Saenz-Mendoza, 287 F.3d 1011, 1014 (10th Cir. 2002) (quoting United States v. Graham, 169 F.3d 787, 792 (3d Cir. 1999).

[406] See § 19.22, supra.



Nijhawan v. Holder, 557 U.S. ___, 129 S.Ct. 2294, 2300 (Jun. 15, 2009), citing James v. United States, 550 U.S. 192, 212, 127 S.Ct. 1586 (2007)(while the Court did not directly address whether a "crime of violence" aggravated felony is a generic definition, or a circumstance-specitif definition, it concluded it had already applied the traditional categorical analysis to very similar language in the Armed Career Criminal Act which defines the "violent" felonies it covers to include "burglary, arson, or extortion" and "crime[s]" that have "as an element" the use or threatened use of force. 18 U.S.C. 924(e)(2)(B)(i)-(ii). This language refers directly to generic crimes. The statute, however, contains other, more ambiguous language, covering "crime[s]" that "involv[e] conduct that presents a serious potential risk of physical injury to another." Ibid. (emphasis added). While this language poses greater interpretive difficulty, the Court held that it too refers to crimes as generically defined).

Fifth Circuit

Rodriguez v. Holder, 705 F.3d 207, (5th Cir. Jan. 16, 2013) (Section 16 has both criminal and noncriminal applications, and thus, the rule of lenity applies. We therefore are constrained to interpret any ambiguity in the statute in [Rodriguez's] favor.) (footnotes omitted); quoting Leocal v. Ashcroft, 543 U.S. 1, 11 n. 8, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004).

Seventh Circuit

LaGuerre v. Mukasey, 526 F.3d 1037 (7th Cir. May 20, 2008) (per curiam) (rejecting DHS argument court should go beyond elements of offense of conviction to determine whether state conviction constituted aggravated felony crime of violence under INA 101(a)(43)(f), 8 U.S.C. 1101(a)(43)(F)).

Tenth Circuit

United States v. Hathaway, 318 F.3d 1001, 1007 (10th Cir. 2003) (at common law simple assault was defined as "either a willful attempt to inflict injury upon the person of another, or by a threat to inflict injury upon the person of another which, when coupled with an apparent present ability, causes a reasonable apprehension of immediate bodily harm.").


NIP-NLG and Immigrant Defense Project have written an advisory on the Supreme Courts recent decision in U.S v. Castleman. The advisory explains why this decision should have no negative impact on immigration law and how it may even support arguments to narrow the domestic violence and aggravated felony removal grounds. The advisory is located at:
Rosemary Cakmis, Construing Crimes of Violence After Johnson v. United States, 15 Benders Immigration Bulletin 795 (June 1, 2010); Rebecca Sharpless, Toward a True Elements Test, 62 University of Miami Law Review 979 (2008).