Update on Recklessness and Crimes of Violence after Voisine

 

Introduction: Issue Update on Reckless Conduct and Crimes of Violence

Reckless Conduct and Crimes of ViolenceIn the Matter of Chairez, 26 I&N Dec. 819 (BIA 2016) [PDF version], the Board of Immigration Appeals (BIA) clarified the rules for determining when a criminal statute is “divisible” consistent with the Supreme Court decisions in Mathis v. United States, 136 S.Ct. 2243 (2016) [PDF version] [see article] and Descamps v. United States, 133 S.Ct. 2276 (2013) [PDF version] [see article]. To learn more about the new Matter of Chairez decision, please see our comprehensive article [see article].

In this article, we will examine a footnote from the new Matter of Chairez decision regarding the question of whether, in light of the Supreme Court decision in Voisine v. United States, 136 S.Ct. 2272 (2016) [PDF version], reckless conduct may be included within the scope of the immigration aggravated felony provision for a crime of violence. To learn about the potential effects of Voisine on immigration law, please see our full article [see article]. Although the issue is only referenced briefly and not adjudicated in Chairez, the footnote represents the first time that the Board has addressed the issue to any extent in a published decision.

Board's First Post-Voisine Look at Reckless Conduct and Crimes of Violence

The issue at the core of the Matter of Chairez was whether a conviction for felony discharge of a firearm under Utah State law was categorically an immigration aggravated felony for a crime of violence under section 101(a)(43)(F). Section 101(a)(43)(F) references a federal criminal statute for a “crime of violence” found in 18 U.S.C. 16. The Board dealt only with 18 U.S.C. 16(a), and not 16(b), in the Matter of Chairez. 18 U.S.C. 16(a) provides that an offense is a crime of violence if it is:

An offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.

The Supreme Court has addressed this specific provision in multiple cases. In Leocal v. Ashcroft, 543 U.S. 1, 9 (2004) [PDF version] [see article], the Court made clear that the word “use” means “volition[al]” use. However, as we discuss in our article on Leocal, the Court left open whether reckless conduct falls or could fall within the scope of 18 U.S.C. 16(a). In Johnson v. United States, 559 U.S. 133, 140 (2010) [PDF version], the Court defined “physical force” as meaning “violent force” that is “capable of causing physical pain or injury to another person.” However, the Court has yet to issue a definitive opinion on whether reckless conduct is encompassed within 18 U.S.C. 16(a) to the extent that this section has been found by the Court as defining a crime of violence as one that entails the volitional use of violent force that is capable of causing physical pain or injury to another person.

The Board also has yet to address the issue definitively. However, because the Matter of Chairez arose from within the jurisdiction of the Tenth Circuit, the Board was bound by Tenth Circuit precedent in the Matter of Chairez. In footnote 4 of its decision, the Board explained that in United States v. Zuniga-Soto, 527 F.3d 1110, 1122-24 (10th Cir. 2008) [PDF version], the Tenth Circuit had held that mere “reckless” conduct is not sufficient to constitute a crime of violence under 18 U.S.C. 16. In the Matter of Chairez, the Board therefore found that the Utah State statute was not categorically for a crime of violence because it was possible to violate the statute by engaging in reckless conduct.

However, in the same footnote, the Board in the Matter of Chairez addressed the recent Supreme Court decision in Voisine v. United States, 136 S.Ct. 2272, 2280 (2016). In that case, the Supreme Court found that reckless assault that involves the use of physical force was included within the scope of a federal domestic violence statute that bars persons with certain domestic violence offenses from owning a firearm (18 U.S.C. 921(a)(33)(A) (2012)). In Voisine , the Supreme Court specified that it was not deciding whether reckless conduct falls within the crime of violence provision found in 18 U.S.C. 16(a). . Rather, the Supreme Court left open the issue of whether reckless conduct can constitute a crime of violence under 18 U.S.C. 16(a).

In its footnote, the Board in the Matter of Chairez noted that the Supreme Court did not take a position on whether certain reckless conduct falls within the scope of 18 U.S.C. 16(a). The Board itself did not take any position on the matter besides that it would follow the relevant Tenth Circuit authority in the Matter of Chairez.

How Other Circuits Have Resolved the Issue Pre-Voisine

Multiple Circuits have reached the same conclusion as the Tenth Circuit in specific cases that a crime with a minimum mens rea of recklessness cannot constitute a crime of violence under 18 U.S.C. 16. See e.g., United States v. Fish, 758 F.3d 1 (1st Cir. 2014) [PDF version]; Garcia v. Gonzalez, 455 F.3d 465 (4th Cir. 2005) [PDF version]; United States v. Portela, 469 F.3d 496 (6th Cir. 2006) [PDF version]; Jimenez-Gonzalez v. Mukasey, 548 F.3d 557 (7th Cir. 2008) [PDF version]; United States v. Torres-Villalobos, 487 F.3d 607 (8th Cir. 2007) [PDF version]; Fernandez-Ruiz v. Gonzalez, 466 F.3d 1121 (9th Cir. 2006) [PDF version]; and U.S. v. Palomino Garcia, 606 F.3d 1317 (11th Cir. 2010) [PDF version].

However, it is worth noting that the Third Circuit held in Aguilar v. Attorney General of the U.S., 663 F.3d 692 (3d Cir. 2011) [PDF version] that certain offenses with a minimum mens rea of recklessness may fall within the scope of 18 U.S.C. 16(b), which was recognized in Leocal as being broader than 18 U.S.C. 16(a), in that 16(b) does not require the element of force included in 16(a). The Aguilar decision was at odds with a prior Third Circuit opinion in Oyebanji v. Gonzalez, 418 F.3d 260 (3d Cir. 2005) [PDF version], where, in an opinion authored by then Circuit Court Judge Samuel Alito, held that a New Jersey conviction for vehicular homicide did not rise to the standard of crime of violence because it relied upon finding that a person acted merely recklessly. However, Aguilar is arguably consistent with Blake v. Gonzales, 481 F.3d 152 (2d Cir. 2007) [PDF version], in which the Second Circuit held that a statute with a minimum mens rea of reckless conduct could be a crime of violence under 18 U.S.C. 16(b), and the statute at issue requires violence and injury as elements of the crime. .

In the Matter of U. Singh, 25 I&N Dec. 670 (BIA 2012) [PDF version], the Board held that certain conduct that required a minimum mens rea of recklessness (in that case, a statute for harassment) can be crimes of violence under 18 U.S.C. 16(b), reaffirming its previous decision in the Matter of Malta, 23 I&N Dec. 656 (BIA 2004) [PDF version]. This decision was issued notwithstanding contrary Ninth Circuit precedent in Malta-Espinoza v. Gonzales, 478 F.3d 1080 (9th Cir. 2007) [PDF version].

For the Tenth Circuit's part, it held that 18 U.S.C. 16(b) is unconstitutionally vague as relied upon by section 101(a)(43)(F) in Golicov v. Lynch, No. 16-9530 (10th Cir. 2016) [PDF version]. The Supreme Court is set to consider the constitutionality of 18 U.S.C. 16(b) as incorporated in the INA in Lynch v. Dimaya, Docket No. 15-4998.

However, there are three important caveats regarding the cases we discussed. Firstly, there is a distinction between 18 U.S.C. 16(a) and (b), and subsection (b) is broader in scope in that it does not require an element of force. With regard to the question of whether reckless conduct can constitute a crime of violence, the Third Circuit recognized the distinction between 16(a) and (b) as significant in Aguilar. Secondly, the cases cited addressed the issue with varying degrees of specificity, and often with regard to the specific circumstances of a case and a particular statute. Thirdly, all of these decisions were based upon interpreting Leocal and were issued before the Voisine decision. It remains to be seen whether any of the Circuits that have made explicit or suggested that reckless conduct does not fall within the scope of 18 U.S.C. 16(a)will reassess their interpretations of the provision in light of Voisine, or if the Board itself will in a different case.

Conclusion

In the Matter of Chairez, the Board made its first published comment on Voisine. In Chairez, the Board did not have the opportunity to reach whether certain reckless conduct falls within the scope of 18 U.S.C. 16(a), being bound to follow existing Tenth Circuit precedent. It remains to be seen whether any of the Circuits will determine that Voisine suggests that certain types of reckless conduct fall under the scope of 18 U.S.C. 16(a) and (b). Furthermore, the Board may choose to take up the issue in a similar case regarding 18 U.S.C. 16(a) arising from a Circuit that has less clear precedent on the issue than does the Tenth Circuit, or in a case where the Board had not been instructed to resolve an issue as narrowly as it was in Chairez (see Matter of Chairez & Sama, 26 I&N Dec. 796 (AG 2016) [PDF version] [see article]). Finally, the Supreme Court may itself choose to weigh in definitively if the issue presents itself.

Because of the importance of section 101(a)(43)(F), and by effect 18 U.S.C. 16, in the removal context in immigration law, this issue will bear watching going forward.