For purposes of 18 U.S.C. § 16(b), the courts draw a distinction between an offense that, by its nature, involves a substantial risk that the actor will actively have to use force in order to commit an offense, and an offense that merely involves a risk that injury or damage may be caused by or result from the commission of an offense.[473]  While similar to the “use” analysis under 18 U.S.C. § 16(a),[474] the issue here is not whether there is an element of use, but rather a risk of use.

 

Again, this distinction is well recognized.[475]  In the context of a DUI conviction, the United States Supreme Court found:

while § 16(b) is broader than § 16(a) in the sense that physical force need not actually be applied, it contains the same formulation we found to be determinative in § 16(a):  the use of physical force against the person or property of another.  Accordingly, we must give the language in § 16(b) an identical construction, requiring a higher mens rea than the merely accidental or negligent conduct involved in a DUI offense.  This is particularly true in light of §   16(b)’s requirement that the “substantial risk” be a risk of using physical force against another person “in the course of committing the offense.”  In no “ordinary or natural” sense can it be said that a person risks having to “use” physical force against another person in the course of operating a vehicle while intoxicated and causing injury.[476]

 

The court further stated:

 

Thus, § 16(b) plainly does not encompass all offenses which create a “substantial risk” that injury will result from a person’s conduct.  The “substantial risk” in § 16(b) relates to the use of force, not to the possible effect of a person’s conduct.  Compare § 16(b) (requiring a “substantial risk that physical force against the person or property of another may be used”), with United States Sentencing Commission, Guidelines Manual §   4B1.2(a)(2) (Nov.2003) (in the context of a career-offender sentencing enhancement, defining “crime of violence” as meaning, inter alia, “conduct that presents a serious potential risk of physical injury to another”).  The risk that an accident may occur when an individual drives while intoxicated is simply not the same thing as the risk that the individual may “use” physical force against another in committing the DUI offense.  See, e.g., United States v. Lucio-Lucio, 347 F.3d 1202, 1205-1207 (C.A.10 2003);  Bazan-Reyes v. INS, 256 F.3d 600, 609-610 (C.A.7 2001).

 

This question of the “use” of force is very closely related to the question of the intent required to trigger deportation under this category, i.e., whether the use of force must be intentional.  See § 19.40, supra.

[473] The Armed Career Criminal Act includes an “otherwise clause” that does turn upon risk of injury.  See United States v. Stapleton, 440 F.3d 700 (5th Cir. Feb. 16, 2006) (Louisiana conviction for false imprisonment while armed with a dangerous weapon, in violation of La. Rev. Stat. Ann. § 14:46.1(A), is a violent felony for purposes of the Armed Career Criminal Act, 18 U.S.C. § 924(e), because it necessarily presents a serious potential risk of physical injury to another).

[474] See § 19.37, supra.

[475] See, e.g., United States v. Lucio-Lucio, 347 F.3d 1202 (10th Cir. Oct. 28, 2003) (Texas felony conviction of driving while intoxicated is not an aggravated felony crime of violence as defined by 18 U.S.C. § 16(b)); Jobson v. Ashcroft, 326 F.3d 367 (2d Cir. Apr. 22, 2003) (New York conviction of manslaughter in the second degree under N.Y.P.L. § 125.15(1), is a not crime of violence under 18 U.S.C. § 16(b), since the minimum criminal conduct required to violate the statute does not necessarily present a substantial risk that the defendant will intentionally use physical force against the person or property of another, because the scope of the law is broad; passive conduct or omissions alone are sufficient for conviction); Bazan-Reyes v. INS, 256 F.3d 600 (7th Cir. July 5, 2001) (Wisconsin conviction for homicide by intoxicated use of vehicle, in violation of Wis.St.1996, § 940.09, was not an aggravated felony crime of violence, since offense required that offender actually hit someone, but did not require that he intentionally use force to achieve that result); Francis v. Reno, 269 F.3d 162, 172-73 (3d Cir. 2001) (vehicular homicide, which requires only proof of criminal negligence, is not an offense that, by its nature, involves a substantial risk that physical force may be used in its commission); United States v. Parson, 955 F.2d 858, 866 (3d Cir. 1992) (indicating that “use of physical force” refers to an intentional act, and that although a drunk driver may risk causing injury, in most cases he does not intend to “use” force to cause this harm); Matter of Ramos, 23 I. & N. Dec. 336, 341-342 (BIA 2002); Matter of Puente, 22 I. & N. Dec. 1006 (BIA 1999) (“criminal offenses that have the potential for harm do not always carry a substantial risk that force will be used in their commission.”).

[476] Leocal v. Ashcroft, 543 U.S. 1, 11, 125 S.Ct. 377, 383 (Nov. 9, 2004).

BIA

AGGRAVATED FELONIES " CRIME OF VIOLENCE " ASSAULT AND BATTERY AGAINST A FAMILY OR HOUSEHOLD MEMBER
Matter of Velasquez, 25 I. & N. Dec. 278 (BIA 2010) (In light of the decision of the United States Supreme Court in Johnson v. United States, 130 S. Ct. 1265 (2010), that because the Virginia statute reaches conduct that cannot be classified as violent force, the respondents offense is not categorically a crime of violence and thus cannot be classified as a categorical crime of domestic violence for purposes of section 237(a)(2)(E) of the Act.).

Ninth Circuit

AGGRAVATED FELONIES " CRIME OF VIOLENCE " CORPORAL INJURY OF A SPOUSE
Banuelos-Ayon v. Holder, 611 F.3d 1080, 1084 (9th Cir. Jul. 14, 2010) (California conviction for violation of Penal Code 273.5(a) was categorically a crime of domestic violence, since it requires that the defendant willfully inflict ... corporal injury resulting in a traumatic condition and thus requires the use of force).