10th Circuit Finds DWI Offense Not A "Crime Of Violence" Aggravated Felony

IMMIGRATION LAW & POLICY

Removal Issues
Concerning Criminal Convictions

10th Circuit finds DWI offense not a "crime of violence" aggravated felony
Immigrants' Rights Update, Vol. 17, No. 7, November 24, 2003

The U.S. Court of Appeals for the Tenth Circuit has ruled that the offense of driving while intoxicated does not constitute a "crime of violence" such as to be an "aggravated felony" within the definition of section 101(a)(43)(F) of the Immigration and Nationality Act. The ruling replaces the court's prior decision in Tapia-Garcia v. INS, 237 F.3d 1216 (10th Cir. 2001), and brings the Tenth Circuit into accord with other circuits that have ruled on this issue and with the revised position of the Board of Immigration Appeals (see "Three Circuit Courts Rule Felony DUI Conviction Not 'Aggravated Felony,'" IMMIGRANTS' RIGHTS UPDATE, Aug. 31, 2001, p. 12; and "BIA Overrules Prior Decisions to Find DUI Conviction Not a Crime of Violence 'Aggravated Felony,'" IRU, July 15, 2002, p. 7).

The ruling comes on the appeal from a district court's order applying a sentence enhancement to a defendant's criminal conviction on the grounds that under Tapia-Garcia his prior DWI conviction constituted an aggravated felony. In distinguishing Tapia-Garcia, the court explained that in the prior decision the court had deferred to the Board of Immigration Appeals, finding that its conclusion that a DWI offense was a crime of violence was a reasonable interpretation of the statute. Subsequently, the BIA reversed its position on this issue (In re Ramos, 23 I. & N. Dec. 336 (BIA 2002)), and the court now agrees with the other circuits that have ruled that DWI does not meet the definition of a "crime of violence."

United States v. Lucio-Lucio, No. 03-2025 (10th Cir. Oct. 28, 2003).