Transcript Unit 2: Definition of Conviction, Drug Offenses

Unit 5:
Crimes Against the Person
Moral Turpitude
Aggravated Felonies
Homicide, etc.
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
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.
CRIMES OF MORAL TURPITUDE
MensCRIMINAL
Rea
Crime
of moral
LAW
PERSPECTIVE
turpitude?
Specific Intent
Almost always
Knowledge
Usually
Recklessness
Unlikely
Negligence
Unlikely
Absolute liability Never
DUI Offenses

A DUI conviction is not a crime involving
moral turpitude. Matter of Lopez-Meza, 22
I&N 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 I&N Dec. 78
(BIA 2001).
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).
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?
Moral Turpitude Poll - 2

Does an incest conviction
– Always involve moral turpitude?
– Sometimes involve moral turpitude?
– Never involve moral turpitude?
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
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 client’s priors
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
CRIMES OF VIOLENCE
Statutory definition at 18 USC § 16
 Categorical statutory analysis
– 18 USC § 16(a)
– 18 USC § 16(b)
 Example

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)
CRIME OF VIOLENCE
18 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.
CRIME OF VIOLENCE
18 USC § 16

Categorical analysis
– Look to elements of statute, not actual
conduct
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
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
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).

Blakely and Sentence
 Effect
of Blakely v. Washington, 124 S.
Ct. 2531 (2004).
18 USC § 16(a)
•
•
USE OF FORCE AS AN ELEMENT
INCLUDES MISDEMEANORS AND
FELONIES
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.
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 I&N 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).
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.
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.
Leocal
 Rule
of lenity applies to interpretation of
crime of violence aggravated felony
definition.
 Test is same for 16(a) and 16(b).
Leocal

Requires mental state of at least recklessness
but Bejerano v Gonzalez, No. 04-2270 __
F.3d__, (4th Cir. July 5, 2005).
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.
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).
Force Continued
Under Leocal, use of force means same thing
for both 18 U.S.C. section16 (a) and 16(b).
CRIME OF VIOLENCE
18 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

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).

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

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.
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.
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)).
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
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 nonrecidivist enhancement.
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).
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
SUBSTANTIAL RISK FORCE MAY
BE USED
Burglary classic example- Leocal

Force inheres in crime

Role of mental state
Exercise 1

Are there any offenses that might not be
aggravated felonies under the Leocal mental
state requirement?
Exercise 2

Any moral turpitude that is divisible in your
state?
Exercise 3

How could pleading to a non-substantive
offense avoid immigration consequences?