The court of appeals lacks jurisdiction to review a removal order based on an alien’s commission of an aggravated felony. However, the court retains jurisdiction to review constitutional claims and questions of law raised in a petition for review. Because the question of whether an offense constitutes an aggravated felony is a purely legal one, the court has jurisdiction to review the petition for appeal. Moreover, the court also has jurisdiction to determine its own jurisdiction, i.e., to determine whether the conviction qualifies as an aggravated felony.
With respect to determining whether a prior conviction falls within a provision of the INA, the court accords substantial deference to the BIA’s interpretation of the INA’ itself and definitions and phrases within it. The court reviews de novo whether the particular statute that the prior conviction is under falls within the relevant INA definition.
Any alien who is convicted of an aggravated felony at any time after admission is deportable Section 101(a)(43) of the INA defines “aggravated felony” to include, inter alia, 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. Title 18 of the United States Code, Section 16, in turn defines the phrase “crime of violence” to mean, inter alia, 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.
This court agrees that the BIA erred in its application of the categorical approach and, because it did not apply the modified categorical approach, this court concludes that remand is appropriate for the agency to make the initial determination on that issue.
To determine whether an alien’s guilty plea conviction constitutes an aggravated felony for removal purposes, this court applies a ‘categorical approach,’ under which this court refers only to the statutory definition of the crime for which the alien was convicted and ask whether that legislatively-defined offense necessarily fits within the INA definition of an aggravated felony.
Accordingly, the court focuses on the statutory element of the offense and not on the actual facts underlying the conviction.
Section 16(b) defines a “crime of violence” as 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.” The Supreme Court interpreted § 16(b) in Leocal v. Ashcroft, 543 U.S. 1 (2004), explaining that § 16(b) covers offenses that naturally involve a person acting in disregard of the risk that physical force might be used against another in committing an offense. Stated differently, the reckless disregard in § 16 relates not to the general conduct or to the possibility that harm will result from a person’s conduct, but to the risk that the use of physical force might be required in committing a crime. Moreover, § 16(b) requires a higher mens rea than merely accidental or negligent conduct.
The Florida false imprisonment offense, Fla. Stat. Sec. 787.02, is not categorically a “crime of violence” under § 16(b) because, in addition to forcible imprisonments, the statute also punishes “confinement” of a child without the consent of his or her legal guardian, even if the child acquiesces or consents in fact to the confinement. Other circuits have held that the false imprisonment of a child due only to a lack of consent by the child’s legal guardian does not involve a substantial risk that physical force will be used to commit the offense. The Florida offense of false imprisonment can be committed upon a child who acquiesces or consents in fact to the confinement. There is certainly a possibility that physical force might result from a parent whose child is confined without the parent’s consent (an upset parent scenario), but such force is not necessarily required to commit the offense—rather, it is merely a harm that might result from the commission of the offense. Accordingly, imprisonment of a willing child does not present a substantial risk of using physical force against another. This court therefore holds that the Florida offense of false imprisonment, Fla. Stat. § 787.02, is not categorically a crime of violence under § 16(b). The BIA, in concluding otherwise, misapplied the categorical approach to order petitioner’s removal.
Courts are authorized to apply a modified categorical approach when a statute is divisible in that it defines multiple offenses, at least one of which constitutes an aggravated felony. The modified categorical approach allows the court to examine certain additional documents to determine whether the conviction was ‘necessarily’ for a particular crime defined by the statute that meets the aggravated felony criteria. When the conviction was the product of a guilty plea, these additional documents are the charging document, the written plea agreement, transcript of the plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented. The petitioner thus prevails if the additional documents are insufficient to establish that petitioner was necessarily convicted of an aggravated felony.
Remand is generally appropriate where the BIA has not yet considered an issue. Federal courts are not generally empowered to conduct initial inquiries into matters that statutes place primarily in agency hands. In such cases, the agencies perform the role of initial factfinders; federal courts may only properly involve themselves after the agencies have first considered the underlying merits of the claim, and then only in an appellate review fashion. Because the BIA has not yet applied the modified categorical approach in this matter, this court remands this petition to the BIA for its application of the modified categorical approach to determine whether petitioner’s conviction under Florida’s false imprisonment offense was a “crime of violence” for purposes of § 16(b). Accordingly, the court grants the petition for review and remands for further proceedings.
No comments:
Post a Comment