Three Circuit Courts Rule Felony DUI Conviction Not "Aggravated Felony"

IMMIGRATION LAW & POLICY

Removal Issues Concerning Criminal Convictions

THREE CIRCUIT COURTS RULE FELONY DUI CONVICTION NOT "AGGRAVATED FELONY"
Immigrants' Rights Update, Vol. 15, No. 5, Aug. 31, 2001

The U.S. Circuit Courts of Appeal for the Second, Seventh, and Ninth Circuits have joined the Fifth Circuit in ruling that a felony drunk driving conviction is not a "crime of violence" such as to constitute an "aggravated felony" (see "5th Circuit Holds That Texas Felony DWI Is Not a Crime of Violence," Immigrants' Rights Update, Mar. 29, 2001, p. 5). On the other hand, the Tenth Circuit has agreed with the Board of Immigration Appeals that a felony driving under the influence (DUI) conviction with bodily injury is a "crime of violence."

As was also the case with the Fifth Circuit decision, the Ninth Circuit decision arose in the context of criminal sentencing. Construing a crime as an "aggravated felony" can trigger a substantial increase in the prison sentence of a person who is convicted of being in the United States unlawfully after having been removed from the U.S. following conviction for that crime. The Second, Seventh, and Tenth Circuit decisions all arise in the immigration context, where the issue is whether the individual is deportable as an aggravated felon.

All of these cases turn on the question of whether the state felony DUI statute for which the individual was convicted encompasses conduct broader than that the definition of a "crime of violence" in 18 U.S.C. section 16(b). That statute applies to any felony offense "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." If an individual could be convicted under the terms of the DUI statute for conduct that is not encompassed within section 16(b), then it should not be considered a "crime of violence." The Second, Fifth, and Seventh Circuits concluded that section 16(b) requires a level of intent greater than recklessness, because it requires a risk of the use of force rather than simply a risk of injury. While no specific intent to cause harm is required to make the statute applicable, the courts found that, at a minimum, a volitional act is necessary. All three circuits ruled that, since the state felony offenses at issue encompassed reckless behavior, they were broader than section 16(b) and could not be considered "crimes of violence."

The Seventh Circuit decision distinguishes the earlier Seventh Circuit decision in United States v. Rutherford, 54 F.3d 370 (7th Cir. 1995), which found that a federal sentencing guideline containing language similar but not identical to the above quoted phrase encompassed recklessness. The most recent decision distinguishes Rutherford because of a key difference between the language of the sentencing guideline and the language of section 16(b): the sentencing guideline requires only "conduct that presents a serious potential risk of physical injury."

The Ninth Circuit decision uses a different analysis, since the court has previously ruled that section 16(b) encompasses reckless behavior. United States v. Ceron-Sanchez, 222 F.3d 1169 (9th Cir. 2000) (Arizona conviction for aggravated assault constitutes "crime of violence"); Park v. INS, 252 F.3d 1018 (9th Cir. 2001) (conviction for involuntary manslaughter constitutes "crime of violence"). The most recent decision distinguishes those cases by finding that the offense at issue-California Vehicle Code section 23153-encompasses negligent as well as reckless behavior and thus is broader than section 16(b) and is not a "crime of violence."

The Tenth Circuit, on the other hand, upheld the BIA's conclusion that section 16(b) encompasses reckless behavior and concluded that an Idaho conviction for driving under the influence, after the convicted person had pled guilty or been found guilty of two previous violations within five years, constitutes a "crime of violence."

Dalton v. Ashcroft, __ F.3d __, No. 00-4123 (2d Cir. Jul. 20, 2001); U.S. v. Chapa-Garza, 243 F.3d 921 (5th Cir. 2001); Bazan-Reyes v. Ashcroft, 256 F.3d 600 (7th Cir. Jul. 5, 2001); U.S. v. Trinidad-Aquino, __ F.3d __, No. 00-10013 (9th Cir. Aug. 8, 2001); Tapia-Garcia v. INS, 237 F.3d 1216 (10th Cir. Jan. 19, 2001).