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 CRIMINAL LAW PERSPECTIVE Mens ReaCrime of moral turpitude? Specific IntentAlmost always KnowledgeUsually RecklessnessUnlikely NegligenceUnlikely Absolute liabilityNever

DUI Offenses A DUI conviction is not a crime involving moral turpitude. Matter of Lopez-Meza, 22 I&N Dec (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 – 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 (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 __ F.3d__, (4th Cir. July 5, 2005).

USE OF FORCE AS AN ELEMENT Ind. Code. § (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. § (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. § (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 § 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 non- recidivist 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?