CRIME OF VIOLENCE 2019 Sessions v. Dimaya Aftermath and Current Law - PowerPoint PPT Presentation

CRIME OF VIOLENCE 2019 Sessions v. Dimaya Aftermath and Current Law Brian Bates Derek Julius Lory D. Rosenberg Norma Sepulveda #ImmigrationLaw #FBA

CRIME OF VIOLENCE The term “aggravated felony includes: • 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 at least one year. See INA(a)(43)(F). • Subsection (43)(F) includes 2 defining clauses: (a) and (b), which are part of 18 USC § 16, and 1 penalty clause: “at least one year” imprisonment. #ImmigrationLaw #FBA

18 USC 16 Principal clause - § 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.” Residual clause - § 16(b): “any other offense • that is a felony and that, by its nature, involves a substantial risk that physical force . . . may be used in the course of committing the offense.” #ImmigrationLaw #FBA

SESSIONS v. DIMAYA 584 U.S. ___, 138 S.Ct. 1204 (2018) • Supreme Court struck down the “ordinary case” approach and found §16b void-for-vagueness. • 18 USC § 16(a) is the only remaining basis on which the DHS or EOIR can find an individual either deportable or ineligible for certain benefits. • This calls into question the result in cases decided under 18 USC § 16(b) before the Dimaya decision. #ImmigrationLaw #FBA

SESSIONS v. DIMAYA IMPACT • BIA precedents called into question: • Matter of Francisco Alonzo , 26 I&N Dec. 594 (BIA 2015)( adopting the ordinary case test). • Matter of Ramon Martinez, 25 I&N Dec. 571 (BIA 2011) (citing James v. United States , 550 U.S. 192, 208 (2007), for the proposition that, in § 16(b) cases, we look to the ordinary case for the risk of violent force. #ImmigrationLaw #FBA

SESSIONS v. DIMAYA IMPACT, cont’d. • More BIA precedents called into question: • Matter of Guerrero, 25 I&N Dec. 631 (BIA 2011) (using modified categorical approach holding that solicitation under R.I. Gen. Laws §11-1-9 to commit assault with a dangerous weapon is a COV under section §16(b). • Matter of Palacios, 22 I&N Dec. 434 (BIA 1998): holding that 1st degree arson under Alaska law involves substantial risk of physical force being used. #ImmigrationLaw #FBA

JOHNSON v. UNITED STATES 135 S. Ct. 2551, 2557-58 (2015) • Supreme Court previously struck down almost identical residual clause - the “violent felony” definition in the Armed Career Criminal Act (ACCA).18 USC § 924 ( e ) (2)(B). • ACCA required enhancement for felonious conduct that presented a serious potential risk of physical injury. • ACCA clause invites “more unpredictability and arbitrariness” than the Constitution allows. #ImmigrationLaw #FBA

JOHNSON EXPLAINS DIMAYA • The residual clause created “grave uncertainty” about estimating the risk posed, tying it to the “ordinary case.” • Required judicial imagination to contemplate risk • Requires an idealized result, neither based on actual nor elemental factors. • Uncertainty about what threshhold of risk was enough to make a given crime a “violent felony” was problem. • = An unacceptable combined indeterminacy #ImmigrationLaw #FBA

PHYSICAL FORCE AS VIOLENT FORCE • Johnson v. U.S., 559 U.S. 133 (2010)(involving simple battery under Fla. Stat. §784.03(1)(a), (2) by “actually and intentionally touching” another person) = an offense that has no element the use of physical force under 18 USC §924(e)(2)(B)(i). • U.S. v. Castleman, 134 S.Ct. 1405, n.4 (2014) = a “domestic violence” crime as defined in reference to 18 USC §16 requires violent force. But see Voisine v. U.S . 579 U.S. (2016). #ImmigrationLaw #FBA

BIA COV INTERPRETATIONS • Matter of Velasquez, 25 I&N Dec. 278 (BIA 2010): following Johnson and holding that misdemeanor assault and battery against a family or household member under Va. Code Ann. §18.2-57.2(A) is not categorically a crime of violence as it does not require violent force, and therefore not a domestic violence crime under INA §237(a)(2)(E)(i). • M atter of Guzman-Polanco, 26 I&N Dec. 713 (BIA 2016): following Johnson , finding that under 16(a) a COV must categorically include “violent force” and withdrawing from Matter of Martin, 23 I&N Dec. 491 (BIA 2002). But see 26 I&N Dec. 806, 808, leaving question of whether use/threatened use of poison involves sufficient force. #ImmigrationLaw #FBA

MORE BIA COV INTERPRETATIONS • Matter of Kim, 26 I&N Dec. 912, 914 (BIA 2017 ): “ The term ‘use’ under § 16(a) ‘requires active employment’ and therefore denotes volition.” (quoting Leocal v. Ashcroft , 543 U.S. 1, 9 (2004), but a malicious act resulting in great bodily injury impliedly requires more than recklessness). • Matter of Cervantes Nunez, 27 I&N Dec. 238 (BIA 2018): ruling that attempted voluntary manslaughter in violation of Cal. Penal Code §§192(a), 664 is a COV because it requires specific intent to cause death. #ImmigrationLaw #FBA