Criminal Defense of Immigrants

(B)  Threat or Attempt.  In addition to substantive crimes of violence, the definition at 18 U.S.C. § 16(a) also includes: (a) attempted use of force, and (b) threatened use of force.[422]  By expressly listing these two non-substantive offenses,  Congress indicated that any other non-substantive offenses were excluded from this definition.  Because Congress expressly included conspiracy elsewhere in the aggravated felony definition,[423] however, it is included in this definition as well.  Counsel should argue that all other non-substantive offenses except attempt, threat, and conspiracy are excluded from this definition.  See § § 19.13-19.20, supra; Appendix G, infra.

[422] See, e.g., United States v. Hernandez-Rodriguez, 135 Fed.Appx. 661 (5th Cir. Oct. 10, 2006) (Texas conviction of “deadly conduct,” as defined in Tex. Penal Code § 22.05(b)(1) [knowingly discharge a firearm in the direction of a person], constitutes a crime of violence for purposes of imposing a 16-level sentence enhancement under U.S.S.G. § 2L1.2(b), because the offense has an element the threatened use of physical force); United States v. Ladwig, 432 F.3d 1001 (9th Cir. Dec. 27, 2005) (Washington felony conviction for making harassing telephone call, under R.C.W. § 9.61.230(3)(b), is a “violent felony” predicate offense under the Armed Career Criminal Act, 18 U.S.C. § 924(e), because it has as an element a threat of use of physical force against the person of another, and is a felony only if committed by a threat to kill, which is a conduct-based sentence enhancement that can be considered part of the record of conviction in making this determination); United States v. Acuna-Cuadros, 385 F.3d 875 (5th Cir. Sept. 21, 2004) (per curiam) (Texas conviction for retaliation, in violation of Tex. Penal Code Ann. § 36.06 (1995), penalizing one who “knowingly harms or threatens to harm another by an unlawful act,” did not qualify as a “crime of violence” supporting 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii), since the offense does not “ha[ve] as an element the use, attempted use, or threatened use of physical force against the person of another”); Bovkun v. Ashcroft, 283 F.3d 166 (3d Cir. Mar. 8, 2002) (Pennsylvania misdemeanor conviction of making terroristic threats, in violation of 18 Pa. Cons.Stat. § 2706 (1998), qualified as a “crime of violence” under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for immigration purposes, since the sentence imposed equaled the maximum of the indeterminate 11- to 23-month sentence imposed was one year or more).

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