Title: Unit 5: Crimes Against the Person
1Unit 5 Crimes Against the Person
- Moral Turpitude
- Aggravated Felonies
- Homicide, etc.
2Moral Turpitude Grounds of Deportability
- Two prongs
- Prong 1
- One crime within 5 years of admission, where a
sentence of at least one year incarceration may
be imposed -
3Moral Turpitude Grounds of Deportability
- Second Prong
- Two crimes of moral turpitude at any time not
arising out of a single scheme of criminal
misconduct, - Regardless of sentence, or whether or not
sentenced to confinement.
4CRIMES OF MORAL TURPITUDE
Mens Rea Crime of moral turpitude?
Specific Intent Almost always
Knowledge Usually
Recklessness Unlikely
Negligence Unlikely
Absolute liability Never
5DUI Offenses
- Â Â A DUI conviction is not a crime involving
moral turpitude. Matter of Lopez-Meza, 22 IN
Dec. 1188 (BIA 1999). Since a second DUI offense
does not change the character of the offense, it
does not involve turpitude. Matter of
Torres-Varela, 23 IN Dec. 78 (BIA 2001).
6Assault Offenses
- An assault offense involves moral turpitude if
either - the crime as defined requires a conviction a
specific intent to injure or - Recklessness and serious bodily injury. Matter of
Fualaau, 21 I. N. Dec. 475Â (BIA 1996).Â
7Moral Turpitude Poll - 1
- Does a conviction for intentionally taking a life
with malice aforethought - Always involve moral turpitude?
- Sometimes involve moral turpitude?
- Never involve moral turpitude?
8 Moral Turpitude Poll - 2
- Does an incest conviction
- Always involve moral turpitude?
- Sometimes involve moral turpitude?
- Never involve moral turpitude?
9REVIEW OF CRIMES OF MORAL TURPITUDE
- Lower level ground of deportability, so more
relief available - Can include both misdemeanors and felonies
- Mens rea matters, so keep it low
10Practice Tips
- Avoid pleading to crimes where intent or
knowledge is the mens rea - If you cannot do this, plead to a statute where
mens rea is ambiguous - Know your clients priors
11Divisible Statutes
- Where the same crime can be charged more than one
way - Some provisions of a statute include CMT mens
rea, while some does not
12CRIMES OF VIOLENCE
- Statutory definition at 18 USC 16
- Categorical statutory analysis
- 18 USC 16(a)
- 18 USC 16(b)
- Example
13AGGRAVATED FELONY
- Definition includes
- 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 year18 USC 16
sentence of at least one year - INA 101(a)(43)(F), 8 USC 1101(a)(43)(F)
14CRIME OF VIOLENCE18 USC 16
- (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.
15CRIME OF VIOLENCE18 USC 16
- Categorical analysis
- Look to elements of statute, not actual conduct
16Divisibility
- Divisibility
- Look to record of conviction (charging paper,
plea, judgment) to establish whether the conduct
of which the noncitizen was convicted satisfies
the elements
17 Crime of Violence
- 18 USC 16(a)
- Sentence of incarceration of one year or more
- Use of force as an element
- Includes both misdemeanor and felony offenses
18SENTENCE of at least one year
- ACTUAL sentence imposed, regardless of time
served. INA 101(a)(48)(B), 8 USC
1101(a)(48)(B). - 11th Cir. treats Georgia sentence to probation as
including a suspended sentence even though the
state does not treat it as such. U.S. v.
Ayala-Gomez, 255 F.3d 1314 (11th Cir. 2001).
19Blakely and Sentence
- Effect of Blakely v. Washington, 124 S. Ct. 2531
(2004).
2018 USC 16(a)
- USE OF FORCE AS AN ELEMENT
- INCLUDES MISDEMEANORS AND FELONIES
2118 USC 16(a)USE OF FORCE AS AN ELEMENT
- Conn. Gen. Stat. 53a-61(a)(1) Assault in the
third degree Class A Misdemeanor - A person is guilty of assault in the third
degree when (1) With intent to cause physical
injury to another person, he causes such injury
to such person or to a third person.
22USE OF FORCE AS AN ELEMENT
- Conn. Gen. Stat. 53a-61(a)(1) Assault in the
third degree Class A Misdemeanor - Matter of Martin, 23 IN Dec. 491 (BIA 2002)
(intent to cause physical injury implies use of
force). - Chrzanoski v. Ashcroft, 327 F.3d 188 (2d Cir.
2003) (force must be explicit element of the
statute intent to cause physical injury does
not necessarily involve use of force).
2318 USC 16(a)USE OF FORCE AS AN ELEMENT
- Under Leocal focus on use of force, not harm or
injury - Leocal suggests Matter of Martin no longer good
law because it treats intentional causation of
injury as intentional use of force.
24Leocal
- Florida conviction for driving under influence of
alcohol and causing serious bodily injury is not
a crime of violence because it includes
accidental or negligent conduct which Congress
did not intend to be a crime of violence.
25Leocal
- Rule of lenity applies to interpretation of crime
of violence aggravated felony definition. - Test is same for 16(a) and 16(b).
26Leocal
- Requires mental state of at least recklessness
but Bejerano v Gonzalez, No. 04-2270 __ F.3d__,
(4th Cir. July 5, 2005).
27 USE OF FORCE AS AN ELEMENT
- Ind. Code. 35-42-2-1(a)(1)(A) Battery
-
- A person who knowingly or intentionally touches
another person in a rude, insolent, or angry
manner commits battery the offense is (1) a
Class A misdemeanor if (A) it results in bodily
injury to any other person.
2818 USC 16(a)What Does Force Mean?
- Ind. Code. 35-42-2-1(a)(1)(A) Battery
-
- Flores v. Ashcroft, 350 F.3d 666 (7th Cir. 2003)
(mere offensive touching is not use of force even
where there is an element of resulting bodily
harm).
29Force Continued
- Under Leocal, use of force means same thing for
both 18 U.S.C. section16 (a) and 16(b).
30CRIME OF VIOLENCE18 USC 16(b)
- Sentence of incarceration of one year or more
- Includes only felony offenses
- Substantial risk that physical force may be used
against person or property in committing the
offense
31SENTENCE of at least one year
- Same as 16(a)
- ACTUAL sentence imposed, regardless of time
served. INA 101(a)(48)(B), 8 USC
1101(a)(48)(B).
3218 USC 16(b) ONLY FELONY OFFENSES
- Federal or state felony classification?
- Federal definition at 18 USC 3559 maximum term
of imprisonment is more than one year - State definitions vary
-
3318 USC 16(b) ONLY FELONY OFFENSES
- Misdemeanor under federal law,
- Felony under state law
- Ariz. Rev. Stat. 13-701(5) Sentence of
imprisonment for felony - For a class 6 felony, one year.
3418 USC 16(b) ONLY FELONY OFFENSES
- Felony under federal law,
- Misdemeanor under state law
- Pa. Stat. Ann. title 18, 1104 Sentence of
imprisonment for misdemeanors - (1) Five years in the case of a misdemeanor of
the first degree. - (2) Two years in the case of a misdemeanor of
the second degree.
3518 USC 16(b) ONLY FELONY OFFENSES
- Felony under federal law,
- Misdemeanor under state law
- Francis v. Reno, 269 F.3d 1018 (3d Cir. 2001)
(where state law classifies vehicular homicide as
misdemeanor, it is not a felony for purposes of
18 USC 16(b)).
36Oregon Example
- ORS 163.160
- misdemeanor assault punishable by one year
- potential punishment becomes 5 years if
- person assaulted same victim previously
- person has three priors
- assault committed in presence of victim
37Oregon Example
- Person with five year sentence for assault
committed in presence of minor is convicted of a
felony for purposes of 18 U.S.C. section 16(b).
U.S. v. Moreno-Hernandez, 397 F.3d 1248 (9th Cir.
2005) because it is a non-recidivist enhancement.
38Oregon example 2
- Defendant convicted of Oregon assault with three
priors treated as recidivist enhancement. U.S. v.
Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002)(en
banc).
39 Substantial Risk Force May be Used 18 USC sec.
16(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
40SUBSTANTIAL RISK FORCE MAY BE USED
- Burglary classic example- Leocal
- Force inheres in crime
- Role of mental state
41Exercise 1
-
- Are there any offenses that might not be
aggravated felonies under the Leocal mental state
requirement?
42Exercise 2
-
- Any moral turpitude that is divisible in your
state?
43Exercise 3
-
- How could pleading to a non-substantive offense
avoid immigration consequences?