The BIA reviews de novo the IJ’s determination on a question of law.
The term “crime of domestic violence” means “any crime of violence (as defined in 18 U.S.C. § 16) against a person” committed by, inter alia, a current or former spouse of the person. The term “crime of violence” is defined in 18 U.S.C. § 16 (2006) 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. Thus, an offense cannot qualify as a “crime of domestic violence” unless it is also a “crime of violence” as defined by 18 U.S.C. § 16.
Section 243(e)(1) of the California Penal Code punishes a battery committed “against a spouse, a person with whom the defendant is cohabiting, a person who is the parent of the defendant’s child, former spouse, fiancé, or fiancée, or a person with whom the defendant currently has, or has previously had, a dating or engagement relationship.” “Battery” is defined by section 242 of the California Penal Code as “any willful and unlawful use of force or violence upon the person of another.” Under the case law of the United States Court of Appeals for the Ninth Circuit, in whose jurisdiction this case arises, battery under section 242 requires neither a force capable of hurting or causing injury nor violence in the usual sense of the term, so it does not qualify categorically as a crime of violence under 18 U.S.C. § 16. Thus, the respondent’s offense is not categorically a crime of domestic violence. This court must therefore employ the modified categorical approach described in Taylor v. United States, 495 U.S. 575 (1990), to determine whether the respondent’s conviction is for a crime of domestic violence.
In the Ninth Circuit, the modified categorical approach only applies when the particular elements of the crime of conviction are broader than the generic crime, and it cannot be applied when the crime of conviction is missing an element of the generic crime altogether. Since “battery” is an element of section 243(e)(1) of the California Penal
Code, the statute under which the respondent was convicted, and it is defined by section 242 of the California Penal Code as “any willful and unlawful use of force or violence,” it is encompassed within the generic crime of domestic violence and is therefore not missing any element of the generic offense.
In applying the modified categorical approach to assess an alien’s conviction, the Immigration Judge and the BIA may look beyond the language of the statute of conviction to a specific set of judicially noticeable documents that are part of the record of conviction, including the charging document, the judgment of conviction, jury instructions, a signed guilty plea, the transcript from the plea proceedings, and any explicit factual findings by the trial judge to which the alien assented in the criminal proceedings. It is also proper to consider a comparable judicial record, including the clerk’s minute order prepared by a neutral officer of the court, provided the defendant had the right to examine and challenge its accuracy during the criminal proceedings. The use of such judicially noticeable documents is permitted because they are considered sufficiently conclusive and reliable to establish the facts to which the alien actually pleaded guilty.
While a police report, standing alone, is not part of the record of conviction, the respondent’s decision to incorporate the police report into the guilty plea made the report an explicit statement in which the factual basis for the plea was confirmed by the respondent.
The respondent’s argument that the police report should not be considered because it was never admitted into the record of his criminal proceedings or incorporated into the criminal complaint is without merit. Where the plea agreement references the police report as the “factual basis” for the respondent’s plea, and where the plea form contains the handwritten statement “stip to police report as factual basis” and the respondent initialed the statement, it serves as the findings of fact adopted by the defendant upon entering the plea, which is part of the judicial record on which the courts may rely. It was not necessary for the respondent to acknowledge the truth of every statement in the police report or for the judge in the criminal case to have specifically reviewed or referenced the report during the plea proceedings. Also, contrary to the respondent’s argument, it is not necessary that the copy of the police report relied on in the immigration proceedings be obtained from the files of the criminal case. The only requirement is that the police report or reports relied on in the immigration proceedings be incorporated by reference as at least part of the factual basis for the guilty plea. Thus, the Immigration Judge erred in failing to view the police report as part of the record of conviction and to consider its contents in applying the modified categorical analysis. Accordingly, the BIA finds it necessary to remand the record to the IJ for further proceedings. On remand, the IJ should consult the police report to determine whether the DHS has demonstrated that the respondent’s offense is a crime of domestic violence that renders him removable as charged. The DHS’s appeal will be sustained, and the record will be remanded.
Showing posts with label crime of violence. Show all posts
Showing posts with label crime of violence. Show all posts
Friday, February 19, 2010
Tuesday, November 17, 2009
Kerr v. Holder, No. 08-60020 (5th Cir. Nov. 10, 2009).
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.
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.
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