Criminal Defense of Immigrants


§ 19.41 2. Statutory Definition Under 18 U.S.C. 16(b)

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The second part of the definition of the crime of violence aggravated felony for immigration purposes is set out at 18 U.S.C. § 16(b):


(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.[450]


This part of the crime of violence definition therefore includes the following essential elements:


                (1)           a felony conviction of an offense, see § 19.42, infra;

                (2)           that by its nature, see § 19.43, infra;

                (3)           involves a substantial risk, see § 19.44, infra;

                (4)           that physical force, see § 19.45, infra;

                (5)           against the person or property of another, see § 19.46, infra;

                (6)           may be used, see § 19.48, infra;

                (7)           in the commission of the offense, see § 19.47, infra;

                (8)           with intent.  See § 19.49, infra.


A conviction of an offense that lacks any of these essential elements is not an aggravated felony crime of violence as defined by 18 U.S.C. § 16(b).


[450] 18 U.S.C. § 16(b).



Welch v. United States, ___ U.S. ___, No. 15-6418 (Apr. 18, 2016) (Johnson v. United States, 135 S. Ct. 2551 (2015), applies retroactively to invalidate 16(b), no matter when the conviction occurred, because it is a substantive rule of criminal procedure, because it changed the substantive reach of the Armed Career Criminal Act, altering the range of conduct or the class of persons that the [Act] punishes.) (quoting Schriro v. Summerlin, 542 U.S. 348, 353 (2004)). Note: This decision has substantial implications for anyone involved in immigration work for clients with criminal histories. The ACCA residual clause, involved in Johnson, uses language that tracks the 16(b) definition of a crime of violence, a type of aggravated felony that frequently results in detention and removal of migrants through the nations immigration court system. Since Johnson was decided, the Fifth, Seventh, and Ninth Circuits have that the reasoning of Johnson holding unconstitutional the residual clause of the ACCA requires them to invalidate 18 U.S.C. 16(b), for the same reasons.
Linus Chan, in The ordinary cases demise in criminal sentencing & its implications for immigration law, at, summarized the impact of Johnson v. United States as follows: After the Supreme Court announced the ordinary case method in James, the Board of Immigration Appeals (BIA), and a couple of federal circuit courts began to adopt it in immigration cases when deciding whether someone has committed a crime of violence under 18 U.S.C. 16(b). Section 16(b)s language is not an exact match to ACCAs residual clause, but isnt far off. Section 16(b) defines a crime of violence as a felony which, 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. Like the ACCAs residual clause, 16(b) requires an examination of risk, and also looks at whether force is used in the course of committing the offense. Two circuit courts called the phrases virtually identical. See Roberts v. Holder, 745 F.3d 928, 930 (8th Cir. 2014); Lopez-Cardona v. Holder, 662 F.3d 1110, 1113 (9th Cir. 2011). Moreover, the Ninth and Fifth Circuits applied the ordinary case from James to 16(b) cases. Rodriguez-Castellon v. Holder, 733 F.3d 847, 854 (9th Cir. 2013); Perez-Munoz v. Keisler, 507 F.3d 357, 363 (5th Cir. 2007). The BIA had begun applying the ordinary case method to 16(b) cases in 2011, see Matter of Ramon Martinez, 25 I&N Dec. 571 (BIA 2011), and just a few weeks before Johnson reiterated its support for the ordinary case method in Matter of Francisco-Alonzo, 26 I&N Dec 594 (BIA 2015) (analyzed on this blog here). In Francisco-Alonzo, the BIA relied heavily on the fact that James had not been overruled, and it saw no reason to question the rule when examining risk based definitions. The James ordinary method, it seemed, had become embedded in immigration law. The reliance on James as good precedent proved to be ill timed. On June 26, 2015, just three weeks after Francisco-Alonzo the United States Supreme Court not only overruled James in Johnson but also found that the residual clause of the ACCA and the ordinary case method unconstitutionally vague under the Due Process clause of the Fifth Amendment. The Court specifically criticized the ordinary case rule. It ties the judicial assessment of the risk to a judicially imagined ordinary case of a crime, not to real-world facts for statutory elements, the Court concluded. Johnson, No. 13-7120, slip op at 5. The Court wrote that such an exercise was too speculative and too unreliable to give guidance to either defendants or judges. The Court explained that other risk-assessment statutes did their work by gauging the riskiness of conduct in which an individual defendant engages on a particular occasion. As a general matter, we do not doubt the constitutionality of laws that call for an application of a qualitative standard such as substantive risk to real-word conduct Id. at 12. Ultimately the residual clause was vague because it requires application of the serious potential risk standard to an idealized ordinary case of the crime. Because the elements necessary to determine the imaginary ideal are uncertain both in nature and degree of effect, the Court concluded, this abstract inquiry offers significantly less predictability than one [t]hat deals with the actual, not with an imaginary condition other than the facts. Id. (quoting International Harvester Co. of America v. Kentucky, 234 U. S. 216, 223 (1914)).

Ninth Circuit

Dimaya v. Lynch, ___ F.3d ___ (9th Cir. Oct. 15 2015) (California conviction for burglary under Penal Code 459 is not a categorical crime of violence as defined by INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), because the language in 18 U.S.C. 16(b), which is incorporated into 1101(a)(43)(F)s definition of a crime of violence, is unconstitutionally vague since the 18 U.S.C. 16(b) language suffers from the same indeterminacy the Supreme Court found void for vagueness in the Armed Career Criminal Acts residual clause definition of a violent felony in Johnson v. United States, 135 S. Ct. 2551 (2015)). The Dimaya court stated: The Fifth Amendments Due Process Clause requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. Alphonsus, 705 F.3d at 1042 (quoting Kolender v. Lawson, 461 U.S. 352, 357 (1983)). Although most often invoked in the context of criminal statutes, the prohibition on vagueness also applies to civil statutes, including those concerning the criteria for deportation. Jordan v. De George, 341 U.S. 223, 231 (1951) (Despite the fact that this is not a criminal statute, we shall nevertheless examine the application of the vagueness doctrine to this case. We do this in view of the grave nature of deportation.); see also A.B. Small Co. v. Am. Sugar Ref. Co., 267 U.S. 233, 239 (1925) (The defendant attempts to distinguish [prior vagueness] cases because they were criminal prosecutions. But that is not an adequate distinction. The ground or principle of the decisions was not such as to be applicable only to criminal prosecutions.). (Id. at 1113.)


Johnson v. United States, 135 S. Ct. 2251 (2015), strongly supports the argument that 18 U.S.C. 16(b) is unconstitutionally vague. The question remains, however, whether the Board of Immigration Appeals (as distinct from a federal court) has authority to find 16(b) to be unconstitutionally vague. Sejal Zota's practice advisory offers a nonconstitutional argument to get rid of BIA's endorsement of ordinary case rule struck down in Johnson. Thanks to Ben Winograd. Comment: In prior cases, the Board has declined to consider such challenges under the general rule that it lacks authority to strike down a statute or regulation as unconstitutional. See, e.g., Matter of G-K-, 26 I&N Dec. 88, 96-97 (BIA 2013). While the Board might lack authority to strike down a statute as unconstitutional in the first instance, it arguably possesses authority to consider the constitutionality of a statue under a controlling decision by a circuit court or the Supreme Court. In other words, while the Board itself can't find a statute to be unconstitutional, it can find a statute to be unconstitutional under the ruling of a higher court. Matter of Silva, 16 I&N Dec. 26 (BIA 1976), may support this argument. In that case, the Board held that 212(c) waivers are always available in deportation proceedings to avoid the equal protection problems that the Second Circuit identified in Francis v. INS, 532 F.2d 268 (2d Cir. 1976). See also, Matter of Fuentes-Campos, 21 I&N Dec 905, 912 (BIA 1997) (We recognize the canon of statutory interpretation stating that constructions of doubtful constitutional validity should be avoided where possible. See United States v. Witkovich, 353 U.S. 194, 199 (1957); United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U.S. 366, 407 (1909). However, inasmuch as we find no ambiguity in section 440(d), we find it unnecessary to resort to this canon.); Matter of Abdelghany 26 I&N Dec.254 (BIA 2014) (We would face an obstacle to adopting the Abebe approach as a nationwide administrative rule, even if the regulations permitted us to, because that approach may well conflict with the Second Circuits constitutional rulings in Blake v. Carbone and Francis v. INS. Because the Second Circuit has already held that denial of section 212(c) relief would pose serious constitutional problems for deportable lawful permanent residents whose offenses are encompassed by the grounds of inadmissibility, we arguably are not free to adopt FAIRs proposed interpretation in Second Circuit cases. Cf. Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575"78 (1988) (holding that the imperative of constitutional avoidance trumps traditional principles of administrative deference).). Thanks to Dan Kesselbrenner and Jonathan Moore.