Unit 5: Crimes Against the Person

1
Unit 5 Crimes Against the Person

• Moral Turpitude
• Aggravated Felonies
• Homicide, etc.

2
Moral 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

3
Moral 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.

4
CRIMES OF MORAL TURPITUDE
Mens Rea Crime of moral turpitude?
Specific Intent Almost always
Knowledge Usually
Recklessness Unlikely
Negligence Unlikely
Absolute liability Never

• CRIMINAL LAW PERSPECTIVE

5
DUI Offenses

•   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).

6
Assault 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. 475 (BIA 1996). 

7
Moral 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?

9
REVIEW 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

10
Practice 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

11
Divisible 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

12
CRIMES OF VIOLENCE

• Statutory definition at 18 USC 16
• Categorical statutory analysis
• 18 USC 16(a)
• 18 USC 16(b)
• Example

13
AGGRAVATED 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)

14
CRIME 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.

15
CRIME OF VIOLENCE18 USC 16

• Categorical analysis
• Look to elements of statute, not actual conduct

16
Divisibility

• 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

18
SENTENCE 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).

19
Blakely and Sentence

• Effect of Blakely v. Washington, 124 S. Ct. 2531
  (2004).

20
18 USC 16(a)

• USE OF FORCE AS AN ELEMENT
• INCLUDES MISDEMEANORS AND FELONIES

21
18 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.

22
USE 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).

23
18 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.

24
Leocal

• 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.

25
Leocal

• Rule of lenity applies to interpretation of crime
  of violence aggravated felony definition.
• Test is same for 16(a) and 16(b).

26
Leocal

• 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.

28
18 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).

29
Force Continued

• Under Leocal, use of force means same thing for
  both 18 U.S.C. section16 (a) and 16(b).

30
CRIME 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

31
SENTENCE 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).

32
18 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

33
18 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.

34
18 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.

35
18 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)).

36
Oregon 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

37
Oregon 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.

38
Oregon 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

40
SUBSTANTIAL RISK FORCE MAY BE USED

• Burglary classic example- Leocal
• Force inheres in crime
• Role of mental state

41
Exercise 1

• Are there any offenses that might not be
  aggravated felonies under the Leocal mental state
  requirement?

42
Exercise 2

• Any moral turpitude that is divisible in your
  state?

43
Exercise 3

• How could pleading to a non-substantive offense
  avoid immigration consequences?