Francis v. Reno: 3d Circuit Rules...Misdemeanor Conviction for Vehicular Homicide Not a "Crime of Violence"

IMMIGRATION LAW & POLICY

Removal Issues Concerning Criminal Convictions

FRANCIS V. RENO: 3D CIRCUIT RULES STATE MISDEMEANOR CONVICTION FOR VEHICULAR HOMICIDE NOT A "CRIME OF VIOLENCE" AGGRAVATED FELONY
Immigrants' Rights Update, Vol. 15, No. 7, Nov. 16, 2001

The Third Circuit Court of Appeals has ruled that a Pennsylvania misdemeanor conviction for vehicular homicide is not a "crime of violence" within the meaning of 18 U.S.C. section 16 and therefore does not constitute an aggravated felony under section 101(a)(43)(F) of the Immigration and Nationality Act. The court's decision was made on a petition for review of a removal order entered by the Board of Immigration Appeals.

The petitioner in this case, a Mr. Francis, had lived in the U.S. for over 25 years, and is married to a U.S. citizen. In May 1993, he caused a traffic accident in which two people were killed, and he was subsequently convicted of two counts of homicide by vehicle under Pennsylvania law, each count being classified as a misdemeanor of the first degree. He was sentenced to two consecutive terms of 18 to 60 months in prison, and after he served his sentence the Immigration and Naturalization Service commenced removal proceedings against him. At his hearing the immigration judge terminated proceedings, but the INS appealed, and the BIA reversed and issued a removal order, finding Francis deportable as an aggravated felon. Francis then filed a petition for review with the court of appeals.

As a threshold matter, the court found that it has jurisdiction to determine whether Francis is removable as an aggravated felon. Were the court to determine that his conviction constitutes an aggravated felony, however, jurisdiction would be barred by INA section 242(a)(2)(C).

The statute under which Francis was convicted applies to "any person who unintentionally causes the death of another person" while violating any state law or municipal ordinance applying to the operation or use of a vehicle or to the regulation of traffic (except for driving under the influence of alcohol or a controlled substance, which is the subject of a different statute), if the violation is the cause of death. The statute encompasses criminal negligence as well as recklessness.

A "crime of violence" is defined in 18 U.S.C. section 16 as "(a) an offense that has as an element the use, or 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 BIA had recognized that subsection (a) does not apply to Francis's conviction but concluded that the conviction was encompassed in subsection (b).

The court declined to give deference to the BIA's interpretation of 18 U.S.C. section 16(b), noting that "pure questions of statutory construction must be resolved by courts." The court also pointed out that deference is only applicable to inquiries that implicate agency expertise "in a meaningful way," and in this case the BIA is not charged with administering and does not have particular expertise regarding the criminal statute at issue.

The court concluded that the state conviction does not meet two requirements of section 16(b): it is not a "felony," and it does not involve a substantial risk that physical force may be used. The court noted that subsection (b), unlike (a), expressly applies only to felony convictions. The court rejected the INS's contention that the conviction should be considered a felony under 18 U.S.C. section 3559(a)(5). That statute, for purposes of federal sentencing, assigns letter grades to offenses based on the maximum term of imprisonment authorized by the statute describing the offense. For example, an offense not specifically classified in the statute defining it which authorizes imprisonment for a maximum period of less than five years but more than one year is classified as a Class E felony. However, the court concluded that this classification does not apply to Francis's conviction because the state expressly classified the offense as a misdemeanor.

The court distinguished its prior decision in United States v. Graham, 169 F.3d 787 (3d Cir. 1999), which held that a state misdemeanor conviction constituted an aggravated felony under INA section 101(a)(43)(G), which encompasses theft or burglary offenses "for which the term of imprisonment [is] at least one year." According to the court, subsection (G) by its plain language applies to all theft offenses carrying the requisite sentence, whether they are classified as felonies or misdemeanors. Subsection (F), on the other hand, expressly incorporates the requirements for a "crime of violence" of 18 U.S.C. section 16; and to qualify as a crime of violence under section 16(b), an offense must be a "felony."

The court also found support for its interpretation of the statute in the rule of lenity-the longstanding principle that deportation statutes must be given the narrowest possible interpretation because of the severity of deportation. The court noted that the Supreme Court recently affirmed the rule of lenity in INS v. St. Cyr, 121 S.Ct. 2268 (June 25, 2001).

Finally, the court concluded that, even were Francis's conviction considered to constitute a felony, it does not pose the substantial risk of physical force required by section 16(b). The state statute for homicide by vehicle encompasses a broad range of unintentional conduct, including, in this case, driving with a suspended license. The court noted that "[t]here are undoubtedly many reasons why a state would suspend a person's driving privileges, some of which may have no relation to a person's fitness to drive or the likelihood that he or she will use physical force." Indeed, one reason for suspension under Pennsylvania law is simply for failing to apply to renew a license. The court concluded that "driving while one's license is suspended simply does not bear a sufficient risk of physical injury" as to constitute a crime of violence under section 16(b). The court therefore granted the petition for review and remanded the case to the BIA to vacate the order of removal.

Francis v. Reno, __ F.3d __, No. 00-2375 (3d Cir. Oct. 16, 2001).