Leocal v. Ashcroft: Narrowing the Scope of "Crime of Violence"

 

Introduction: Leocal v. Ashcroft

In Leocal v. AshcroftIn 2004, the Supreme Court held unanimously in Leocal v. Ashcroft, 543 U.S. 1 (2004) [PDF version], that a state DUI offense which (1) does not have a mens rea (state of mind) component; or which (2) requires only a showing of negligence in the operation of a vehicle is not a “crime of violence” under 18 U.S.C. 16. This holding was made in the context of an appeal by a lawful permanent resident who had been ordered deported based upon his DUI conviction being considered an immigration aggravated felony under section 101(a)(43)(F) of the Immigration and Nationality Act (INA), which requires that the crime be a crime of violence under 18 U.S.C. 16. In this article, we will look at the facts of Leocal v. Ashcroft, the Supreme Court's decision, and its broader implication for aliens with certain criminal convictions.

Facts of Leocal v. Ashcroft

Josue Leocal (the petitioner), was a lawful permanent resident (LPR) who was convicted in 2000 under Florida law of driving under the influence of alcohol (DUI) and causing serious bodily injury.1 The petitioner pled guilty to both counts and was sentenced to two and a half years in prison.

While the petitioner was serving his sentence, removal proceedings were instituted against him under section 237(a) of the INA, which renders deportable any alien who is convicted of an aggravated felony. The Immigration and Naturalization Service (INS)2 argued that the petitioner's conviction was an immigration aggravated felony as defined by section 101(a)(43)(F) of the INA, which defines as an aggravated felony:

  • “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.”

18 U.S.C. 16 defines a crime of violence 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.”

The INS claimed that the DUI conviction was a crime of violence under 18 U.S.C. 16, and therefore rendered the petitioner deportable under section 237(a) of the INA.

In 2001, an Immigration Judge found the petitioner removable, relying upon then Eleventh Circuit precedent which held that a DUI conviction under the Florida statute was a “crime of violence.”3 The Board of Immigration Appeals (BIA) affirmed the Immigration Judge's decision. The petitioner was removed to Haiti after completing his sentence. The Eleventh Circuit dismissed the petitioner's petition for review, relying on its existing precedent. The Supreme Court granted certiorari (agreed to hear the case) in order to resolve a Circuit Court split over whether state DUI offenses similar to the one in Florida, “which do not have a mens rea component or require only a showing of negligence in operating a vehicle, qualify as a crime of violence.”

Decision — Leocal v. Ashcroft: DUI Offense in Question is not a “Crime of Violence”

In a unanimous decision authored by then-Chief Justice William Rehnquist, the Supreme Court held that the Florida DUI offense was not a crime of violence, and therefore not an immigration aggravated felony as defined by INA 101(a)(43)(F).

The Florida DUI Statute

The offense that the petitioner was convicted of made it a third-degree felony for a person to operate a vehicle while under the influence and, “by reason of such operation, caus[e] … [s]erious bodily injury to another.”4 The Court noted that the Florida statute required proof of causation of injury, but did not require proof of any particular mental state. Furthermore, many state DUI offenses were similar in these respects to the Florida offense, meaning that the opinion would have broad applicability. The Court then moved to determine whether the Florida DUI offense qualified as a crime of violence under either 18 U.S.C. 16(a) or (b).

Analysis of Whether the DUI Offense was a Crime of Violence Under 18 U.S.C. 16

18 U.S.C. 16(a) states that an offense qualifies as a “crime of violence” if it has “as an element the use, attempted use, or threatened use of physical force against the person or property of another.” Because the conviction in question clearly did not include the “attempted use” or “threatened use” of physical force, the decision focused on whether the conviction required the “use” of force against another person.

The petitioner argued that “use” of physical force requires an intentional act. The Government argued that “use” of physical force does not incorporate a mens rea component, and that Leocal's DUI conviction necessarily includes the use of physical force.

The Court stated in its decision that both the petitioner's and the Government's arguments with regard to the meaning of “use” of physical force were too narrow. Instead, the Supreme Court opted to construe the term in its context in the provision as a whole. The Court noted that the key term was “use … of physical force against the person or property of another.” (Emphasis taken from the decision.) Citing its decision in Bailey v. United States, 516 U.S. 137 (1995) [PDF version], which adjudicated the meaning of “use” in a similar context, the Court stated that “'use' requires active employment.” As an example, the decision suggested that it would be unnatural to say that a person could actively employ physical force against another person by accident.

The Court stated that the most natural way of reading the term “use” of physical force in the context of the statute was that it required “a higher degree of intent than negligent or merely accidental conduct.” Accordingly, the Court held that the DUI offense was not a crime of violence under section 16(a).

18 U.S.C. 16(b) makes renders as a crime of violence “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 Court followed its reasoning in determining that the DUI offense was not a crime of violence under 18 U.S.C. 16(a) to hold that it was also not a crime of violence under 18 U.S.C. 16(b). While section 16(b) does not require the actual application of physical force, it requires that the felony offense, by its nature, involve a substantial risk of the use of physical force. The Court used as an example burglary, stating that “a burglary would be covered under section 16(b) not because the offense can be committed in a generally reckless way or because someone may be injured, but because burglary, by its nature, involves a substantial risk that the burglar will use force against a victim in completing the crime.”

The decision stated that it “must give the language in section 16(b) an identical construction [to section 16(a)], requiring a higher mens rea than the merely accidental or negligent conduct in a DUI offense.” Furthermore, it added that in no “ordinary or natural” sense can one say that a person risks having to “use” physical force against another person while driving under the influence and causing injury.

Evidence in the INA that the DUI Offense Was Not a Crime of Violence

The decision Court that the Immigration and Nationality Act itself contained further evidence that the petitioner's DUI offense was not a crime of violence.

The decision pointed to section 212(a)(2)(E) of the INA which renders inadmissible an alien who has previously exercised diplomatic immunity from criminal jurisdiction in the United States after having committed a “serious criminal offense.” The term “serious criminal offense” is defined in section 101(h) to mean:

  1. any felony;
  2. any crime of violence, as defined in section 16 of title 18; or
  3. any crime of reckless driving or of driving while intoxicated or under the influence of alcohol or of prohibited substances if such crime involves personal injury to another.” 8 U.S.C. § 1101(h).

The Court believed that the Congress' decision to distinguish “driving while intoxicated or under the influence of alcohol” from a “crime of violence” in this statute was telling. Had Congress intended for a DUI offense such as the one at issue in Leocal v. Ashcroft to be considered a “crime of violence,” the distinction reflected in section 101(h)(3) would be devoid of any meaning.5 The decision cited Supreme Court precedent from Duncan v. Walker, 533 U.S. 167 (2001) in noting that “we must give effect to every word of a statute whenever possible.” To that effect, the decision stated that the construction of section 101(h) “bolsters our conclusion that [18 U.S.C. 16] does not itself encompass DUI offenses.”

Decision

The Supreme Court held 9-0 that the Florida DUI conviction was not for a crime of violence, and remanded the case back to the Eleventh Circuit for further proceedings consistent with the decision in Leocal v. Ashcroft.

In the decision, the Court noted that the case did not present the question of whether a state or federal offense that requires proof of the reckless use of force against a person or property of another qualifies as a crime of violence. This is because the Florida statute and many similar DUI statutes do not require any particular mental state for a conviction.

Conclusion: Leocal v. Ashcroft

The central holding of Leocal v. Ashcroft, that DUI offenses that do not have a mens rea component and that require only mere negligence for a conviction are not crimes of violence, is an important holding beyond the scope of evaluating such DUI offenses. This is because the Supreme Court's analysis of 18 U.S.C. 16(a) and (b) is applicable to evaluating whether a wide variety of offenses fall under the statutory definition of “crime of violence.”

It is however important to note that the Leocal decision only has an effect on offenses with no mens rea requirement and that require mere negligence for a conviction. The Court explicitly stated that it did not decide the issue of whether an offense that requires proof of reckless force, as opposed to mere negligence, qualifies as a crime of violence. Multiple Circuit Courts have subsequently held that an offense that requires at a minimum merely reckless conduct is not a crime of violence under 18 U.S.C. 16.6 However, the Third Circuit held in Aguilar v. Att'y Gen. of the U.S., 663 F.3d 692, 696-700 (3d. Cir. 2011) [PDF version] that an offense with a mens rea of recklessness may qualify as a crime of violence under 18 U.S.C. 16(b). Furthermore, the Second Circuit held in Blake v. Gonzales, 481 F.3d 152 (2d Cir. 2007) [PDF version] that a state criminal offense for aggravated assault on a police officer was a crime of violence even though it included “wanton or reckless conduct” because the conduct required violence an injury in order to warrant a conviction under the statute. The BIA held in Matter of Malta, 23 I&N Dec. 656 (BIA) [PDF version] that a California offense which prohibits stalking when there is a court order prohibiting stalking behavior is a crime of violence. Although this decision was reversed by the Ninth Circuit, the BIA affirmed that it is binding for Immigration Judges outside of the Ninth Circuit.7

An alien who is charged with deportability for any reason should consult immediately with an experienced immigration attorney in criminal immigration matters. If the alien is charged with deportability under section 101(a)(43)(F) of the INA, an experienced immigration attorney will be able to assess the charges and, by relying on the statutes, regulations, and case-law such as Leocal v. Ashcroft, in order to determine whether there are plausible grounds for rebutting the charges in the specific case.

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  1. See Fla. Stat. § 316.193(3)(c)(2) (2003)
  2. The Department of Homeland Security (DHS) has taken over the functions of the former INS.
  3. Le v. United States Att'y Gen, 196 F.3d 1352 (1999) (per curiam) [abrogated by Leocal v. Ashcroft]
  4. Using the segment of the statute copied in the decision.
  5. The decision also noted in footnote 6 that Congress had incorporated 18 U.S.C. § 16 as an aggravated felony under INA § 101(a)(43)(F) on November 29, 1990 [Immigration Act of 1990, § 501, 104 stat. 5048 (Nov. 29, 1990)]. Just over nine months earlier, Congress enacted INA § 101(h) with its incorporation of 18 U.S.C. § 16 along with the separate provision covering DUI offenses [FRAA §131, 104 Stat. 31 (Feb. 16, 1990)]. The decision stated that the proximity of these events supports its construction of 18 U.S.C. 16.
  6. See e.g. Covarrubias Teposte v. Holder, 632 F.3d 1049 (9th Cir. 2011); U.S. v. Palomino Garcia, 606 F.3d 1317, 1334-37 (11th Cir. 2010); Jimenez-Gonzalez v. Mukasey, 548 F.3d 557 (7th Cir. 2008); Tran v. Gonzales, 414 F.3d 464 (3d Cir. 2005)
  7. Reversed by: Malta-Espinoza v. Gonzales, 478 F.3d 1080 (9th Cir. 2007); BIA affirmed precedent outside of Ninth Circuit: Matter of Singh, 25 I&N Dec. 670 (BIA 2012)

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: AILA Publications, 2014. 231-32, Print. Treatises & Primers.