Legislation (524L)-Winter 2002

Professor Martha Dragich Pearson

FINAL EXAMINATION

General Instructions

This is a closed book examination. You may not refer to any materials whatsoever (other than those provided as part of this examination), including textbook, notes, or outlines. This examination is governed by provisions of the law school's Honor Code. This examination counts for 100% of your final grade for the course (subject to adjustment for participation, as explained in the course information sheet).

The examination consists of one question and 22 pages. Please check immediately to make certain that your copy includes all the pages. You must return the examination along with your bluebooks at the end of the examination. You will have four (4) hours in which to complete the examination.

Do not remove any pages from your bluebooks. If you have written matter that, upon reflection, you do not wish me to read, please draw an "X" across it and write "OMIT" in the margin. I will ignore any material so marked.

This examination question presents a significant amount of material to read. You would be well-advised to spend considerable time reading this material carefully and thinking about your answer. It is possible to write a very good answer, thorough and precise, in a relatively few pages. Your analysis should discuss all issues that, in your judgment, are necessary to a sound construction of the statute. In addition to presenting your client's position, your analysis should refute any major counter-arguments likely to be raised by the other side. I have provided a variety of materials that I think an attorney would consult in attempting to answer this question. All are potentially relevant, but a good answer need not necessarily draw on all of them.

In the course of answering the question, you may find it necessary to rely on facts or assumptions not included in the examination materials. I will accept as true any fact or assumption you state, so long as it is not flatly contradicted by the materials I have provided. Likewise, for purposes of plain meaning analysis (if any), you may state the common meaning for a term. I will accept any reasonable definition you supply, unless it is incompatible with any dictionary definitions I have supplied. You should assume the dictionary definitions I have supplied are the complete definitions (in the dictionaries I have selected) of the terms.

In grading, primary emphasis will be placed on the content of the answer, including identification of issues and cogency of analysis. Less weight will be placed on polished writing, but that does not mean that clarity of expression is irrelevant.

 

 

Facts

You are a solo practitioner whose practice focuses on immigration issues. Recently, you took the case of Ilie Gal-Alien. Mr. Gal-Alien is a citizen of Translovakia, a formerly Communist republic in eastern Europe. Mr. Gal-Alien originally entered the United States illegally in 1989. A few years later, he was awarded lawful permanent resident status under an amnesty program for illegal aliens. His immigration history is not in dispute.

Mr. Gal-Alien enlisted your help in fighting the efforts of the Immigration and Naturalization Service ("INS") to deport him. The Service alleges that Mr. Gal-Alien is deportable under 8 U.S.C. §1227 as a person who has been convicted of an "aggravated felony." Mr. Gal-Alien's conviction was for driving under the influence ("DUI") during a period of time when his license had been suspended due to prior DUI convictions. An Immigration Judge ruled that Mr. Gal-Alien was deportable as charged. He appealed this ruling to the Board of Immigration Appeals ("BIA" or "Board"), which upheld the ruling against him. The facts of Mr. Gal-Alien's offense (including the state statute under which he was charged), conviction, and imprisonment are more fully stated in the opinion of the Board. This opinion is attached.

Mr. Gal-Alien wishes to appeal further. Assume that this appeal is to the United States Court of Appeals for the Thirteenth Circuit, a regional circuit with general jurisdiction much like the Eighth Circuit. Your task is to determine whether Mr. Gal-Alien's case shows sufficient merit that he should proceed with the appeal.

Please make the following assumptions:

The INS is an arm of the United States Department of Justice. It is responsible for, among other things, providing assistance to those seeking asylum, permanent resident status, or naturalization; preventing improper entry; apprehending and removing those aliens who enter or remain illegally in the United States; and enforcing sanctions against employers who knowingly hire aliens not authorized to work in the United States. The INS has the authority to promulgate regulations to carry out its functions, but no such regulations are at issue in this case.

 

Within the INS, immigration judges are responsible for conducting formal administrative adjudicatory proceedings to determine whether an individual from a foreign country should be admitted to or allowed to stay in the United States. Immigration judges' decisions are final unless appealed to the BIA, but have no precedential value.

The BIA is the agency within the INS charged with administration and interpretation of the immigration statutes. This responsibility is carried out principally through the BIA's hearing of appeals from the decisions of immigration judges. The BIA has nationwide jurisdiction to hear such appeals. Decisions of the BIA are authoritative in that they are binding on all INS officers, all immigration judges, and future parties, unless modified or overruled upon review in the federal courts of appeals. Because it is a quasi-judicial body, the BIA does not promulgate regulations. Its decisions, however, necessarily require it to interpret the immigration statutes. In fact, the BIA is the tribunal with the primary responsibility for applying the immigration statutes and with the greatest experience in doing so. It is the BIA's decision that Mr. Gal-Alien wishes to challenge on appeal.

 

On appeal, the reviewing court shall set aside a BIA decision that is arbitrary, capricious, or otherwise not in accordance with law, or that is in excess of statutory jurisdiction, authority, or limitations.

  • No knowledge of immigration law or policy is presumed or required.
  • There are no additional statutory provisions, regulations, legislative history materials, or case law relevant to this examination question.
  • Note: I have modified the provisions of statutes and regulations provided in this packet. You are to assume that the law is as I have given it to you. If you have independent knowledge of immigration law that conflicts with the information I have provided, that knowledge is not relevant to this examination.

    Materials Provided

    Your law clerk has gathered up several authorities in addition to the BIA's opinion in the case. These materials include the statutory sections cited in the BIA's opinion; the Conference Report leading to the adoption of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which amended the relevant statute; an unrelated statute using the same term ("crime of violence"); an unrelated provision of the United States Sentencing Guidelines using the same term; a case construing the term "crime of violence" for purposes of applying the sentencing guideline; an unrelated BIA decision construing the term in a different factual context; and dictionary definitions. Specifically, your file includes the following documents:

    8 U.S.C. § 1227

    8 U.S.C. § 1101

    18 U.S.C. § 16

    definitions from general and legal dictionaries

    H.R. CONF. REP. 104-828 2ND Sess. 1996) (to accompany Illegal Immigration Reform and Immigrant Responsibility Act of 1996)

    42 U.S.C.A. § 13981 (from the Violence Against Women Act)

    U.S.S.G. s4B1.2  (sentencing guideline)

    United States v. Rutherford, 54 F.3d 370

    In re Sweetser, Interim Decision (BIA) 3390, 1999 WL 311950 (BIA)

     

     

    FOR EDUCATIONAL USE ONLY

    United States Department of Justice

    Board of Immigration Appeals

    IN RE Ilie Gal-Alien, Respondent

    File A90 219 200

    Decided December 19, 2000

    An alien who was convicted of aggravated driving while under the influence and sentenced to 2 1/2 years in prison was convicted of a "crime of violence" within the meaning of 8 U.S.C. s 1101(a)(43)(F), and therefore is deportable as an alien convicted of an aggravated felony.

    JONES, Board Member:

    In a decision dated June 4, 2000, an Immigration Judge found the respondent deportable as charged under section 1227(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. s 1227(a)(2)(A)(iii)(1994), determined that he was not eligible for any form of relief from deportation, and ordered him deported. The respondent subsequently filed this appeal. The appeal will be dismissed.

    We have reviewed the record of proceedings, the Immigration Judge's decision, and the respondent's contentions on appeal. The evidence of record reveals that the respondent was granted lawful permanent resident status in the United States under an amnesty program for persons who had entered the United States illegally. On September 12, 1996, the respondent was convicted in the State of Academia of aggravated driving under the influence while his license was suspended, revoked, or in violation of a restriction, in violation of sections 28-692(A)(1) and 28-697(A)(1), (D), (E), (G)(1), (H), and (I) of the Academia Revised Statutes Annotated. He was sentenced to 4 months' imprisonment and placed on probation for a period of 5 years. The DUI statute under which respondent was convicted requires imprisonment for at least four months but not more than one year. The respondent subsequently violated the conditions of his probation, and on September 25, 1997, his probation was revoked and he was sentenced to 1 1/2 years in prison. Upon respondent's release from prison in March 1999, deportation proceedings were commenced against him.

    We concur with the Immigration Judge that the crime of which the respondent was convicted is an aggravated felony, as a crime of violence, within the meaning of 8 U.S.C. s 1101(a)(43)(F). He is therefore deportable as charged.

    I. THE RESPONDENT'S CONVICTION

    The respondent was convicted under sections 28-692(A)(1) and 28- 697(A)(1)and (D) of the Academia Revised Statutes Annotated. These two statutory sections provide, in pertinent part, as follows:

    Driving or in actual physical control while under the influence of intoxicating liquor or drugs; violation; classification; definition

    A. It is unlawful for any person to drive or be in actual physical control of any vehicle within this state under any of the following circumstances:

    1. While under the influence of intoxicating liquor, any drug, a vapor releasing substance containing a toxic substance or any combination of liquor, drugs or vapor releasing substances if the person is impaired to the slightest degree. Acad. Rev. Stat. Ann. s 28-692(A)(1).

    Aggravated driving or actual physical control while under the influence of intoxicating liquor or drugs; violation; classification; penalties; notice; definition

    A. A person is guilty of aggravated driving or actual physical control while under the influence of intoxicating liquor or drugs if the person does either of the following:

    1. Commits a violation of s 28-692 or this section while the person's driver's license or privilege to drive is suspended, canceled, revoked or refused, or the person's driver's license or privilege to drive is restricted as a result of violating s 28-692 or under s 28-694.

    . . . .

    D. Aggravated driving or actual physical control while under the influence of intoxicating liquor or drugs committed under this section is a class 4 felony.

    Acad. Rev. Stat. Ann. s 28-697(A)(1), (D).

    II. CRIME OF VIOLENCE UNDER 18 U.S.C. s 16

    Section 1101(a)(43)(F) defines an "aggravated felony" as "a crime of violence (as defined in section 16 of title 18, United States Code) for which the term of imprisonment is at least one year." The term "crime of violence" is defined in 18 U.S.C. s 16 as

    (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.

    In determining whether a particular offense is a "crime of violence" under this definition, we have held that either the elements of the offense must be such that physical force is an element of the crime, or that the nature of the crime -- as evidenced by the generic elements of the offense -- must be such that its commission ordinarily would present a risk that physical force would be used against the person or property of another, irrespective of whether the risk develops or harm actually occurs.

    Upon review, we find that the statutory requirements for a conviction under either section 28-692(A)(1) or section 28-697(A)(1) do not include as an element the use, attempted use, or threatened use of physical force against the person or property of another. Accordingly, the respondent's conviction does not satisfy the test set forth at 18 U.S.C. s 16(a). The remaining issue presented, therefore, is whether the conviction satisfies the test articulated at 18 U.S.C. s 16(b).

    We apply the "generic" or "categorical" approach to analyzing whether a conviction meets this test. That is, analysis under 18 U.S.C. s 16(b) requires first that the offense be a felony; and, if it is, that the "nature of the crime -- as elucidated by the generic elements of the offense -- is such that its commission would ordinarily present a risk that physical force would be used against the person or property of another" irrespective of whether the risk develops or harm actually occurs. Stated differently, "Offenses within the scope of section 16(b) have as a commonly shared characteristic the potential of resulting in harm."

    This approach does not extend however, to consideration of the underlying facts of the conviction. Consequently, for the respondent's crime to fall within the purview of 18 U.S.C. s. 16(b), it must be an offense for which the nature of the crime involves a substantial risk that physical force may be used against the person or property of another during the Commission of the offense; in other words, the crime must have "the potential of resulting in harm." The act of driving while under the influence of drugs or alcohol clearly is an activity that has enormous potential to result in harm. We conclude that the respondent was convicted of an offense that is the type of crime that involves a substantial risk of harm to persons and property. In support of this conclusion, we point to the incontrovertible evidence that drunk driving is an inherently reckless act, which exacts a high societal toll in the forms of death, injury, and property damage. See, e.g., United States v. Rutherford. Thus, upon applying the 18 U.S.C. s 16(b) test to the conduct required for a conviction under section 28-692(a)(1) or section 28-697(a)(1) of the Academia Revised Statutes Annotated, we find that the respondent was convicted of a "crime of violence" within the meaning of the Act.

    IV. CONCLUSION

    Upon consideration, therefore, we find no error in the Immigration Judge's determination that the respondent is deportable owing to his conviction for an aggravated felony. Furthermore, the record contains no evidence that the respondent, either during proceedings before the Immigration Judge or on appeal, has asserted eligibility for relief from deportation, and no application for relief has been made. Accordingly, the appeal will be dismissed.

    ORDER: The appeal is dismissed.

    END OF DOCUMENT

    FOR EDUCATIONAL USE ONLY

    UNITED STATES CODE ANNOTATED

    TITLE 8. ALIENS AND NATIONALITY

    CHAPTER 12--IMMIGRATION AND NATIONALITY

    SUBCHAPTER II--IMMIGRATION

    PART IV--INSPECTION, APPREHENSION, EXAMINATION, EXCLUSION, AND REMOVAL

    Copr. (C) West Group 2002. No claim to Orig. U.S. Govt. Works.

    Current through P.L. 107-136, approved 1-24-02

     

    s 1227. Deportable aliens [8 U.S.C.A. s 1227]

    (a) Classes of deportable aliens

    Any alien in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens:

    ...

    (2) Criminal offenses

    (A) General crimes

    (iii) Aggravated felony

    Any alien who is convicted of an aggravated felony at any time after admission is deportable.

    [originally enacted in 1952]

     

     

    § 1101. Definitions [8 U.S.C.A. § 1101]

     

    (a) As used in this chapter--

     

    (3) The term "alien" means any person not a citizen or national of the United States.

     

    (43) The term "aggravated felony" means--

    (A) murder, rape, or sexual abuse of a minor;

    (B) illicit trafficking in a controlled substance;

    (C) illicit trafficking in firearms or destructive devices;

    (F) a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment is at least one year;

    (G) a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment is at least one year;....

     

    The term "aggravated felony" applies to an offense described in this paragraph whether in violation of Federal or State law. The term shall apply to actions taken on or after the date of the enactment of this Act [September 30, 1996], regardless of when the conviction occurred, and shall apply under section 276(b) of the Immigration and Nationality Act [regarding re-entry of previously deported aliens, not at issue here] only to violations of section 276(a) of such Act occurring on or after such date.

     

    (48) (A) The term "conviction" means, with respect to an alien, a formal judgment of guilt of the alien entered by a court.

    (B) Any reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.

     

    [section 1101 originally enacted in 1952; 1101(A)(43) added in 1988; 1101(A)(43)(F) added in 1990 and amended in 1995 and again by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.]

     

     

    HISTORICAL AND STATUTORY NOTES

    1996 Amendments (enacted on September 30, 1996).

    Subsec. (a)(43). Pub.L. 104-208, § 321(b), added provision relating to application of term regardless of date of entry of conviction.

    Subsec. (a)(43)(A). Pub.L. 104-208, § 321(a)(1), added provisions relating to rape and sexual abuse of a minor.

    Subsec. (a)(43)(F). Pub.L. 104-208, §§ 321(a)(3), substituted "at least one year" for "at least 5 years".

    1995 Amendments.

    Subsec. (a)(43). Pub.L. 103-416, § 222(a), expanded definition and cite list of actions which, for the purposes of this chapter, constitute an "aggravated felony".

    1990 Amendments.

    Subsec. (a)(43). Pub.L. 101-649, § 501(a), expanded definition to include illicit trafficking in controlled substances, offenses described in section 1956 of Title 18 and certain offenses defined in section 16 of Title 18, and directed that term applies to offenses whether in violation of State or Federal law.

    1988 Amendments. Subsec. (a)(43). Pub.L. 100-690 added par. (43).

     

    FOR EDUCATIONAL USE ONLY

    UNITED STATES CODE ANNOTATED

    TITLE 18. CRIMES AND CRIMINAL PROCEDURE

    PART I--CRIMES

    CHAPTER 1--GENERAL PROVISIONS

    Copr. © West Group 2002. No claim to Orig. U.S. Govt. Works.

    Current through P.L. 107-136, approved 1-24-02

     

    § 16. Crime of violence defined [18 U.S.C.A. § 16]

     

    The term "crime of violence" means--

     

    (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.

     

    [enacted in 1984]

     

     

     

     

    The American College Dictionary defines the following terms:

     

    use: 1. to employ for some purpose; put into service; make use of. 2. to avail oneself of; apply to one's own purposes.

     

    force: 1. strength; impetus; intensity of effect. 2. strength or power exerted upon an object. 3. power to influence, affect, or control. 4. Physics. an influence which produces or tends to produce motion or change of motion.

     

    violence: 1. rough force in action. 2. rough or injurious action or treatment. 3. any unjust or unwarranted exertion of force or power, as against rights, laws, etc.

     

     

    Black's Law Dictionary provides the following definitions:

     

    force: power, violence, or pressure directed against a person or thing.

     

    violence: unjust or unwarranted use of force; physical force unlawfully exercised with the intent to harm.

     

    FOR EDUCATIONAL USE ONLY

    (Cite as: H.R. CONF. REP. 104-828 2ND Sess. 1996)

     

    ILLEGAL IMMIGRATION REFORM AND IMMIGRANT RESPONSIBILITY ACT OF 1996

    HOUSE CONFERENCE REPORT NO. 104_828

    September 24, 1996

     

    Mr. Hyde, from the committee of conference, submitted the following

    CONFERENCE REPORT

    [To accompany H.R. 2202]

     

    The committee of conference on the disagreeing votes of the two Houses on the amendment of the Senate to the bill (H.R. 2202) to amend the Immigration and Nationality Act to improve deterrence of illegal immigration to the United States by increasing border patrol and investigative personnel, by increasing penalties for alien smuggling and for document fraud, by reforming exclusion and deportation law and procedures, by improving the verification system for the eligibility for employment, and through other measures, to reform the legal immigration system and facilitate legal entries into the United States, and for other purposes, having met, after full and free conference, have agreed to recommend and do recommend to their respective Houses as follows:

    That the House recede from its disagreement to the amendment of the Senate and agree to the same with an amendment as follows:

    In lieu of the matter proposed to be inserted by the Senate amendment, insert the following: [The Conference Report then sets out the text of the bill agreed to by the Conference, starting with the Table of Contents of the Act itself.]

     

    SECTION 1. SHORT TITLE; AMENDMENTS TO IMMIGRATION AND NATIONALITY ACT; APPLICATION OF DEFINITIONS OF SUCH ACT; TABLE OF CONTENTS; SEVERABILITY.

     

    (a) Short Title._This Act may be cited as the "Illegal Immigration Reform and Immigrant Responsibility Act of 1996".

    (b) Table of Contents._The table of contents for this Act is as follows:

     

    TITLE I_IMPROVEMENTS TO BORDER CONTROL, FACILITATION OF LEGAL ENTRY, AND INTERIOR ENFORCEMENT

    TITLE II_ENHANCED ENFORCEMENT AND PENALTIES AGAINST ALIEN SMUGGLING; DOCUMENT FRAUD

    TITLE III_INSPECTION, APPREHENSION, DETENTION, ADJUDICATION, AND REMOVAL OF INADMISSIBLE AND DEPORTABLE ALIENS

    Subtitle A_Revision of Procedures for Removal of Aliens

    Subtitle B_Criminal Alien Provisions

    Sec. 321. Amended definition of aggravated felony.

    Sec. 322. Definition of conviction and term of imprisonment.

    Sec. 323. Authorizing registration of aliens on criminal probation or criminal parole.

    Sec. 324. Penalty for reentry of deported aliens.

    Sec. 325. Change in filing requirement.

    Sec. 326. Criminal alien identification system.

    Sec. 327. Appropriations for criminal alien tracking center.

    Subtitle C_Revision of Grounds for Exclusion and Deportation

    Subtitle D_Changes in Removal of Alien Terrorist Provisions

    Subtitle E_Transportation of Aliens

    Subtitle F_Additional Provisions

     

    TITLE IV_ENFORCEMENT OF RESTRICTIONS AGAINST EMPLOYMENT

    TITLE V_RESTRICTIONS ON BENEFITS FOR ALIENS

    TITLE VI_MISCELLANEOUS PROVISIONS

    [rest of text of bill omitted]

     

    PURPOSE AND SUMMARY

    H.R. 2202 makes several amendments to the Immigration and Nationality Act (the "INA") and other immigration laws to address the problem of aliens who commit serious crimes while they are in the United States and to give Federal law enforcement officials additional means with which to combat organized immigration crime.

    The bill would add certain crimes to the definition of "aggravated felony," crimes for which aliens can be deported from the country following their incarceration. The bill modifies the INA to make it clear that the existing expedited deportation procedures, which apply to non-resident criminal aliens, also apply to aliens admitted for permanent residence on a conditional basis. That section also prohibits the Attorney General from using the discretionary power otherwise allowed under the INA to grant relief from deportation to any non-resident alien who has been convicted of an aggravated felony.

    BACKGROUND AND NEED FOR THE LEGISLATION

    Several amendments to the Immigration and Nationality Act (8 U.S.C., et. seq.) (the "INA") and to other immigration-related statues have been made over the years. Many of these amendments enacted provisions dealing with the incarceration and deportation of criminal aliens.

    The increasing public attention paid to our nation's immigration policies has brought to light the high number of aliens, both legal and illegal, who commit crimes while enjoying the benefits of this country. The significant cost that incarcerating those criminals place on our society has also come to the forefront of the national debate on this subject. In the past, many aliens who committed serious crimes were released into American society after they were released from incarceration, where they then continue to pose a threat to those around them. The government's attempts to deport those aliens committing the most serious crimes has proved to be ineffective. These concerns led the Committee to take steps legislatively to help ensure that aliens convicted of serious crimes are promptly removed from our society after serving their sentence.

    In addition to these problems, the Committee has also noted with concern the development and increase of organized alien smuggling rings. This new form of organized crime preys upon those with the most laudable intentions- the desire to make a better life in the United States. Unfortunately, the participants in these smuggling rings not only bring illegal aliens into the United States in violation of American law but charge those seeking to come to the United States sizable fees for their unlawful services. In many cases, the smuggled aliens are unable to pay the fees in full and are then coerced into involuntary servitude, prostitution, or other illegal activities in order to repay the fees for their illegal passage. In some cases, the carelessness of smugglers leads to the deaths of those they are transporting.

    The Committee believes that additional legislation is needed to help federal law enforcement officials combat organized immigration crime. Additionally, the Committee believes that some of the provisions relating to criminal aliens need to be enhanced.

    THE PROVISIONS OF H.R. 2202

    The most significant provisions of H.R. 2202 are intended to accomplish one or both of two broad goals. First, the Committee has drafted provisions that will strengthen the government's ability to efficiently deport aliens who are convicted of serious crimes. Second, the Committee has added immigration crimes to those crimes that the federal government may investigate as predicate offenses under the RICO statute.

    Enhanced ability to deport criminal aliens

    Amendment to the definition of "aggravated felony"

    One of the steps the Committee recommends to accomplish the first goal is to add several crimes to the definition of "aggravated felony." Aliens who commit aggravated felonies can be deported from the United States when they complete their incarceration. Many of the crimes added to this list are those often committed by persons involved in organized immigration crime. The crimes added to this definition include: certain gambling offenses; crimes involving transportation of person for the purpose of prostitution; alien smuggling; counterfeiting forging or trafficking in immigration and other documents; and trafficking in stolen vehicles.

     

    In adding crimes to the list, effort was made to ensure that the overall reach of the definition would be consistent with the sentencing guidelines established by the United States Sentencing Commission. In considering which crimes should be designated as aggravated felonies, the Committee has also been mindful of the provisions of section 243(h) of the INA. Under that section, a person who is deportable may prevent their deportation if they can demonstrate that their life or freedom would be threatened in the country to which they would be deported. However, this defense is not available to persons who commit aggravated felonies. In proposing the amendments to the definition of aggravated felony, the Committee continues to be concerned with the fact that deportation may result in a threat to the life or freedom of some aliens. The Committee believes, however, that the crimes defined as aggravated felonies are those that clearly demonstrate a disregard for this nation's laws. In the view of the Committee, those who choose not to abide by this nation's laws, and particularly those whose criminal activity physically harms others, have no legitimate claim to remain in the United States.

    SECTION-BY-SECTION ANALYSIS AND DISCUSSION

    SUBTITLE B-CRIMINAL ALIEN PROVISIONS

    Section 321-House section 802 recedes to Senate amendment section 161. This section amends INA section 101(a)(43), the definition of "aggravated felony," by: adding crimes of rape and sexual abuse of a minor; lowering the fine threshold for crimes relating to money laundering and certain illegal monetary transactions from $100,000 to $10,000; lowering the imprisonment threshold for crimes of theft, violence, racketeering, and document fraud from 5 years to 1 year; and lowering the loss threshold for crimes of tax evasion and fraud and deceit from $200,000 to $10,000. The amendment provides that the amended definition of "aggravated felony" applies to offenses that occurred before, on, or after the date of enactment.

    Section 322-Senate recedes to House section 351. This section amends section 101(a) of the INA to add a new paragraph (48), defining conviction to mean a formal judgment of guilt entered by a court. This section deliberately broadens the scope of the definition of "conviction." There exist in the various States a myriad of provisions for ameliorating the effects of a conviction. As a result, aliens who have clearly been guilty of criminal behavior and whom Congress intended to be considered "convicted" have escaped the immigration consequences normally attendant upon a conviction. This new provision clarifies Congressional intent that the original finding or confession of guilt is sufficient to establish a "conviction" for purposes of the immigration laws.

    This section also provides that any reference in the INA to a term of imprisonment or sentence shall include any period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence. This new definition clarifies that in cases where immigration consequences attach depending upon the length of a term of sentence, any court-ordered sentence is considered to be "actually imposed," including where the court has suspended the imposition of the sentence.

    END OF DOCUMENT

    FOR EDUCATIONAL USE ONLY

    UNITED STATES CODE ANNOTATED

    TITLE 42. THE PUBLIC HEALTH AND WELFARE

    CHAPTER 136--VIOLENT CRIME CONTROL AND LAW ENFORCEMENT

    SUBCHAPTER III--VIOLENCE AGAINST WOMEN

    PART C--CIVIL RIGHTS FOR WOMEN

    Copr. © West Group 2002. No claim to Orig. U.S. Govt. Works.

    Current through P.L. 107-136, approved 1-24-02

     

    § 13981. Civil rights [42 U.S.C.A. § 13981]

    (d) Definitions

    For purposes of this section--

    (1) the term "crime of violence motivated by gender" means a crime of violence committed because of gender or on the basis of gender, and due, at least in part, to an animus based on the victim's gender; and

     

    (2) the term "crime of violence" means--

    (A) an act or series of acts that would constitute a felony against the person or that would constitute a felony against property if the conduct presents a serious risk of physical injury to another, and that would come within the meaning of State or Federal offenses described in section 16 of Title 18, whether or not those acts have actually resulted in criminal charges, prosecution, or conviction; and

    (B) includes an act or series of acts that would constitute a felony described in subparagraph (A) but for the relationship between the person who takes such action and the individual against whom such action is taken.

     

    [enacted 1994]

     

     

     

     

    FOR EDUCATIONAL USE ONLY

     

    United States Sentencing Commission

    Guidelines Manual

    Effective November 1, 1987, Including Amendments November 1, 2001

    Chapter Four - Criminal History and Criminal Livelihood

    Part B - Career Offenders and Criminal Livelihood

    s4B1.2. DEFINITIONS OF TERMS USED IN SECTION 4B1.1

    (a) The term "crime of violence" means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that--

    (1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or

    (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

    Commentary

    1. For purposes of this guideline--

    "Crime of violence" and "controlled substance offense" include the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.

    "Crime of violence" includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, use of explosives, extortionate extension of credit, and burglary of a dwelling. Other offenses are included as "crimes of violence" if (A) that offense has as an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted, by its nature, presented a serious potential risk of physical injury to another.

    [originally promulgated 1987]

    FOR EDUCATIONAL USE ONLY

    54 F.3d 370

    UNITED STATES of America, Plaintiff_Appellee,

    v.

    Shawn D. RUTHERFORD, Defendant_Appellant.

    No. 94_3130.

    United States Court of Appeals,

    Thirteenth Circuit.

    Argued March 1, 1995.

    Decided May 2, 1995.

    Rehearing and Suggestion for Rehearing En Banc Denied June 6, 1995.

    Before CONDOR, EAGLE, and ROBIN, Circuit Judges.

     

    CONDOR, Circuit Judge.

    Shawn D. Rutherford pled guilty to bank robbery and possession of a firearm by a felon. The district court found that Rutherford had two previous convictions for crimes of violence, rendering him a career offender under U.S.S.G. § 4B1.1. The career offender guideline gave Rutherford an offense level of 29 and a criminal history category of VI, yielding a sentencing range of 151 to 188 months. If Rutherford had not qualified as a career offender, he would have had an offense level of 21 and a criminal history category of V, resulting in a sentencing range of 70 to 87 months. The district court imposed a sentence of 188 months of imprisonment and three years of supervised release.

     

    On appeal, Rutherford argues that his 1993 conviction in an Alabama state court for first_degree assault does not qualify as a crime of violence. He was convicted of assault for "driving a motor vehicle under the influence of alcohol and causing serious bodily injury to the person of another with the motor vehicle." Presentence Report at 9. [FN3] Rutherford contends that the definition of crime of violence under the career offender guideline does not encompass vehicular assault.

     

    I. Definition of "Crime of Violence" Under the Career Offender Guideline

    Section 4B1.2 of the Guidelines defines "crime of violence" for the purposes of the career offender guideline. Under § 4B1.2(1)

    "The term 'crime of violence' means any offense under federal or state law punishable by imprisonment for a term exceeding one year that__

    (i) has as an element the use, attempted use, or threatened use of physical force against the person of another, or

    (ii) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another."

     

    The Commentary to § 4B1.2 requires that we limit our inquiry to "the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted."

     

    First_degree assault is a felony in Alabama, Ala.Code § 13A_6_20(b), and Rutherford received a sentence of five years of imprisonment, although he only served nine months. The offense at issue is not an offense enumerated in § 4B1.2(1)(ii). Thus, we must determine whether Rutherford's offense involved the "use, attempted use, or threatened use of physical force" under § 4B1.2(1)(i) or whether it presented "a serious potential risk of physical injury" under § 4B1.2(1)(ii).

     

    II. Use of Force Under § 4B1.2(1)(i)

    The government does not argue that Rutherford's offense involved the "use, attempted use, or threatened use of physical force against ... another" under § 4B1.2(1)(i).

     

    III. The "Otherwise" Clause

    Next, we must determine whether Rutherford's conduct presented a "serious potential risk of physical injury to another" under the otherwise clause. The government asserts that drunk driving creates a serious risk of injury and thus falls squarely within the plain language of § 4B1.2(1)(ii). Rutherford makes two arguments in response. First, he contends that crimes of pure recklessness should not be considered crimes of violence. In the alternative, he argues that his conduct did not create a "serious potential risk of physical injury to another."

     

    We decline to accept Rutherford's argument that crimes of recklessness may never constitute crimes of violence under the "otherwise" clause. Certain reckless conduct is just as dangerous as intentional conduct, and the Sentencing Commission obviously intended some dangerous, reckless criminal acts to qualify as crimes of violence. A court must, however, tread carefully when interpreting the "otherwise" clause. "Conjecture" or "speculation" about possible harm is not sufficient to create a crime of violence under § 4B1.2; instead, there must be evidence that the crime, by its nature, presents a substantial risk or an "affirmative indication" in the indictment or information that the defendant engaged in conduct presenting a serious risk of physical injury.

     

    The government argues that driving under the influence of alcohol always presents a serious risk of injury to another. " 'Drunk drivers cause an annual death toll of over 25,000 and in the same time span cause nearly one million personal injuries and more than five billion dollars in property damage.' " Michigan Department of State Police v. Sitz, 496 U.S. 444, 451 (1990). Furthermore, Rutherford's decision to drive while intoxicated resulted in serious injury to another person in this case, and the government contends that this fact conclusively demonstrates that his conduct posed a serious risk to others.

     

    This Court has never determined whether a vehicular assault committed by a drunk driver or any similar offense constitutes a crime of violence under § 4B1.2. Nor, to the best of our knowledge, has any other court.

     

    We must therefore determine as a matter of first impression whether drunk driving presents a serious risk of physical injury under the "otherwise" clause. The "otherwise" clause in § 4B1.2(1)(ii) requires us to discuss the conduct that creates the risk of physical injury (i.e., driving while intoxicated), not the effect of that conduct (i.e., causing serious bodily injury to another). To say that Rutherford's conduct created a serious risk of injury because he in fact injured another person is nonsensical. Injury may occasionally result from conduct that presents a minimal risk, and the fact that an injury occurred will not automatically convert, for instance, a case of minor neglect into a crime of violence. Thus we must determine whether drunk driving__the act that Rutherford engaged in as opposed to the effect of his act__creates a serious risk of physical injury to another.

     

    Drunk driving is a reckless act, perhaps an act of gross recklessness. Any drunk driver who takes to the road should know he runs a risk of injuring another person. The extent of the risk will of course vary from case to case, depending on how intoxicated the driver is, how far he drives, how fast he drives, and how many other drivers and pedestrians are sharing the road with him. Regardless of the details, however, it is hardly surprising that Rutherford's decision to drive while intoxicated resulted in physical injury to another person. Our laws often impose severe penalties on people who engage in reckless activity that is also highly dangerous, and with good reason.

     

    By driving while intoxicated, Rutherford "present[ed] a serious potential risk of physical injury to another." The dangers of drunk driving are well_known and well documented. Unlike other acts that may present some risk of physical injury, such as pickpocketing or perhaps child neglect or certain environmental crimes like the mishandling of hazardous wastes or pollutants, the risk of injury from drunk driving is neither conjectural nor speculative. Drunk driving, by its nature, presents a serious risk of physical injury, and the courts have held that other crimes that often lead to violence or injury are crimes of violence under the "otherwise" clause. Drunk driving is a reckless act that often results in injury, and the risks of driving while intoxicated are well_known. This is sufficient to satisfy the "serious risk" standard of the "otherwise" clause. Thus Rutherford's Alabama conviction for first_ degree assault qualifies as a crime of violence under § 4B1.2(1)(ii).

     

    IV. Conclusion

    While it is somewhat troubling that felony drunk driving qualifies as a crime of violence under the "otherwise" clause, drunk driving is undoubtedly a serious offense. We are concerned that the "otherwise" clause may cause offenders who never intended to harm another person to be sentenced as career criminals__an effect that perhaps the Sentencing Commission did not foresee. The role of the courts, however, is to enforce the Guidelines, and the plain language of the "otherwise" clause encompasses Rutherford's assault conviction. Thus the decision of the district court is

    AFFIRMED.

     

    END OF DOCUMENT

     

     

     

     

     

     

     

     

     

     

     

    FOR EDUCATIONAL USE ONLY

    Copr. (C) West 2002 No Claim to Orig. U.S. Govt. Works

    United States Department of Justice

    Board of Immigration Appeals

    IN RE Edward Paul SWEETSER, Respondent

    File A30 437 320 - Cannon City

    Decided May 19, 1999

     

    Before: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; VACCA, HEILMAN, HOLMES, HURWITZ, VILLAGELIU, FILPPU, COLE, ROSENBERG, MATHON, GUENDELSBERGER, JONES, GRANT, SCIALABBA, and MOSCATO, Board Members.

    HEILMAN, Board Member:

    The respondent timely appeals the Immigration Judge's May 13, 1997, decision finding him deportable as an alien convicted of an aggravated felony, and ordering him deported. The appeal will be sustained and the deportation proceedings will be terminated.

    I. BACKGROUND

    The respondent, a native and citizen of Great Britain, entered the United States as a lawful permanent resident on June 13, 1970. On October 19, 1990, the respondent was convicted in the District Court, El Paso County, Colorado, of criminally negligent child abuse pursuant to sections 18-6-401(1) and (7)(a)(II) of the Colorado Revised Statutes. The record reveals that the respondent's stepson was accidentally killed as a result of the respondent's negligence. The presentence investigation report states that the respondent decided to bathe his stepson. The respondent ran a bath of approximately 4-5 inches of water and left his stepson unattended in the bathtub while tending to his younger daughter in another room. When the respondent returned he found that his stepson had drowned in the bathtub. The coroner ruled the respondent's stepson's death accidental. The respondent, however, was charged with and convicted of criminally negligent child abuse, for which he was sentenced to a term of imprisonment of 4 years.

    The Immigration and Naturalization Service alleged that the respondent had been convicted of an aggravated felony, to wit, a crime of violence for which the term of imprisonment imposed was at least 1 year. In his written decision the Immigration Judge found that the respondent's part in the unintentional death of his two-year old stepson constituted a "crime of violence" for purposes of 18 U.S.C. s 16 (1994). The Immigration Judge determined that the respondent's conviction was sufficient to show that violence would be present, even if the perpetrator did not act intentionally and even if physical aggression was not employed.

    II. ANALYSIS

    Section 1101(a)(43)(F) of the Immigration and Nationality Act includes in the definition of an aggravated felony "a crime of violence for which the term of imprisonment imposed is at least 1 year." The term "crime of violence" is defined at 18 U.S.C. s 16 as follows:

    (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.

    Although the Colorado "criminal negligence" provision does not require the use or attempted or threatened use of force, it does require that there be a "substantial and unjustifiable risk" that a proscribed result will occur. In this respect, it tracks parallel language in 18 U.S.C. s 16(b). We must therefore look to the substantive provisions of the Colorado child abuse statute to determine whether the respondent's conviction brings him within s 16(b) of the "crime of violence" statute.

    In cases such as this, where the statute encompasses a wide range of behaviors that may or may not result in immigration consequences under the Act, the categorical approach allows us to look beyond the mere fact of conviction to the facts necessarily decided by the prior conviction. An examination of the record of conviction establishes that the respondent was convicted of acting with criminal negligence by permitting his stepson "to be unreasonably placed in a situation which posed a threat of injury to the child's life or health" in violation of section 18-6-401(1) of the Colorado Revised Statutes. The respondent's criminal negligence resulted in the accidental drowning death of his stepson.

    Upon this record we cannot find that the respondent was convicted of a "crime of violence" as defined by 18 U.S.C. s 16(b). Analysis of the conviction record shows that the respondent was convicted of failing to exercise a reasonable standard of care in recognizing a substantial and unjustifiable risk resulting in his stepson's death. The basis for the respondent's criminal liability was his failure to recognize an unjustifiable risk by permitting his stepson to be left alone in a partially filled bathtub. That portion of s 18-6-401 which criminalizes the act of permitting "a child to be unreasonably placed in a situation which poses a threat" does not involve a substantial risk that the respondent will use physical force during the commission of the offense. No force or violence is necessary. Instead, only an act of omission is required for a conviction under this portion of the state criminal statute. Consequently, we find that by its nature the respondent's offense is not a crime of violence, as required for conviction under 18 U.S.C. s 16(b).

    III. CONCLUSION

    The respondent argues on appeal that the Immigration Judge erred in finding him deportable. We agree. The statute under which the respondent was convicted encompasses offenses that constitute crimes of violence as defined under section 1101(a)(43)(F), as well as offenses that do not. An examination of the respondent's record of conviction establishes that his offense is not a crime of violence under the Act. Therefore, the Service has not established that the respondent is deportable.

    Accordingly, the respondent's appeal from the Immigration Judge's finding of deportability will be sustained and the deportation proceedings will be terminated.

    ORDER: The respondent's appeal is sustained and the deportation proceedings are terminated.