Criminal Defense of Immigrants

Section 16(b) of Title 18 requires that the elements of the offense of conviction establish a “substantial risk” that the defendant will intentionally use physical force against the person or property of another.  Courts have often taken great liberties with this requirement, failing to insist upon proof that this factor is in fact present.

The courts often find a “substantial risk” to exist based merely upon speculation about what might happen during the course of the offense.  The United States Supreme Court,[463] for example, has reasoned that a burglary of an inhabited (though temporarily unoccupied) dwelling presents a substantial risk that the defendant will assault the homeowner if s/he arrives home in flagrante delicto.[464]  The actual chances that the homeowner will in fact arrive home during the burglary are not considered.  Even if the homeowner arrives home, what are the chances the burglar will in fact use force in the commission of the offense?  Certainly many burglars will simply flee.  No statistics are offered by the courts.  If the chances of the former occurring are, say, less than 10%, and the chances of the latter are also less than 10%, then the chances that both will occur in any given burglary would be less than one percent.  It is hard for any balanced observer to describe something with a less than one per cent chance of occurrence as a “substantial risk.”  Counsel can attempt to offer actual statistics to substantiate this type of fact-based analysis in an effort to persuade a court that a given conviction does not in fact present such a substantial risk, and is therefore not an aggravated felony under this prong of the crime of violence definition.

                In Larin-Ulloa v. Gonzales,[465] the Fifth Circuit found that aggravated battery[466] defined as intentional physical contact with a deadly weapon in a “rude, insulting or angry manner” constituted a categorical crime of violence, as defined by 18 U.S.C. § 16(b):

We have little difficulty concluding, as did the BIA, that intentional physical contact made with a deadly weapon in a rude, insulting or angry manner is a crime of violence under section 16(b). Although the mere act of intentionally causing physical contact with a deadly weapon under these circumstances might not always involve a use of physical force (an issue we do not decide), the prohibited conduct is by its very nature provocative, and it invites a response from the victim of the offense. One who violates this part of section 21-3414(a)(1)(C) therefore necessarily creates a substantial risk that the confrontation will escalate to physical violence, thus requiring the perpetrator to use physical force against the victim.[467]

The Fifth Circuit has likewise held that unauthorized use of a motor vehicle is a crime of violence under 18 U.S.C. § 16(b), because it involves a substantial risk of damage to the motor vehicle in the course of the unauthorized use.[468]  This decision, however, does not appear to square with the Supreme Court’s requirement of intentional, as opposed to negligent, use of force in Leocal.  See § 19.40, supra.

In the context of statutory rape, the courts often illogically conclude that any offense in which the victim is not legally able to consent must necessarily involve a substantial risk that force will be used in the commission of the offense.  See § 19.92, infra.

[463] Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377, 383 (Nov. 9, 2004).  See also United States v. Reina-Rodriguez, 468 F.3d 1147 (9th Cir. Nov. 15, 2006) (Utah conviction of second-degree attempted aggravated burglary, under Utah Code Ann. § 76-6-203, is a crime of violence for illegal reentry sentencing purposes where the charging document and judgment of conviction show the conviction was for burglary of a dwelling); United States v. Valdez-Maltos, 443 F.3d 910 (5th Cir. Mar. 27, 2006) (Texas conviction of burglary of a habitation is a crime of violence for illegal re-entry sentencing purposes).  Discharge of a firearm into a building receives similar treatment. United States v. Martinez-Martinez, 468 F.3d 604 (9th Cir. Nov. 14, 2006) (Arizona conviction of discharging firearm at a residence, in violation of A.R.S. § 13-1211, did not categorically constitute a crime of violence for purposes imposing a 16-level sentence enhancement for illegal reentry, under USSG § 2L1.2(b)(1)(A)(ii), because the statute of conviction encompassed any structure capable of being occupied as a residence, even though it was not presently so occupied), distinguishing United States v. Cortez-Arizs, 403 F.3d 1111 (9th Cir. 2005) (California conviction of discharging a firearm at an “inhabited dwelling house,” one “currently being used for dwelling purposes, whether occupied or not,” in violation of Penal Code § 246, constituted a crime of violence for purposes imposing a 16-level sentence enhancement for illegal reentry, under USSG § 2L1.2(b)(1)(A)(ii)); Quezada-Luna v. Gonzalez, 439 F.3d 403 (7th Cir. Mar. 3, 2006) (Illinois conviction of aggravated discharge of a firearm, in violation of 720 ILCS § 5/24-1.2(a)(1), is an aggravated felony crime of violence for immigration purposes, because the offense required discharge of firearm into a building with reasonable knowledge that building was occupied, and therefore involved substantial risk of physical force against the person or property of another). 

[464] “In the act of committing a misdeed.”

[465] Larin-Ulloa v. Gonzales, 462 F.3d 456 (5th Cir. Aug. 24, 2006).

[466] Kan. Stat. Ann. 21-3414(a)(1)(C).

[467] Id. at 465-466.

[468] De La Paz Sanchez v. Gonzales, 473 F.3d 133 (5th Cir. Dec. 12, 2006) (per curiam) (Texas conviction of unauthorized use of a motor vehicle offense constitutes a crime of violence under 18 U.S.C. § 16(b) for removal purposes), following United States v. Galvan-Rodriguez, 169 F.3d 217, 219 (5th Cir. 1999); see Matter of Brieva-Perez, 23 I. & N. Dec. 766, 767-70 (BIA 2005) (Texas UUMV conviction was a crime of violence under § 16(b) and therefore an aggravated felony); cf. United States v. Charles, 301 F.3d 309, 314 (5th Cir. 2002) (en banc) (limiting Galvan-Rodriguez to its property aspects and to § 16(b) cases).