CRIME OF VIOLENCE 2019 Sessions v. Dimaya Aftermath and Current Law - - PowerPoint PPT Presentation

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CRIME OF VIOLENCE 2019

Sessions v. Dimaya Aftermath and Current Law Brian Bates Derek Julius Lory D. Rosenberg Norma Sepulveda

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CRIME OF VIOLENCE The term “aggravated felony includes:

• 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. See INA(a)(43)(F).

• Subsection (43)(F) includes 2 defining clauses: (a) and

(b), which are part of 18 USC § 16, and 1 penalty clause: “at least one year” imprisonment.

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18 USC 16

• Principal clause - §16(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.”

• Residual clause - § 16(b): “any other offense

that is a felony and that, by its nature, involves a substantial risk that physical force . . . may be used in the course of committing the offense.”

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• Supreme Court struck down the “ordinary case”

approach and found §16b void-for-vagueness.

• 18 USC §16(a) is the only remaining basis on which the

DHS or EOIR can find an individual either deportable or ineligible for certain benefits.

• This calls into question the result in cases decided

under 18 USC §16(b) before the Dimaya decision.

SESSIONS v. DIMAYA

584 U.S. ___, 138 S.Ct. 1204 (2018)

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SESSIONS v. DIMAYA IMPACT

• BIA precedents called into question:
• Matter of Francisco Alonzo, 26 I&N Dec. 594 (BIA

2015)( adopting the ordinary case test).

• Matter of Ramon Martinez, 25 I&N Dec. 571 (BIA

2011) (citing James v. United States, 550 U.S. 192, 208 (2007), for the proposition that, in § 16(b) cases, we look to the ordinary case for the risk of violent force.

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SESSIONS v. DIMAYA IMPACT, cont’d.

• More BIA precedents called into question:
• Matter of Guerrero, 25 I&N Dec. 631 (BIA 2011) (using

modified categorical approach holding that solicitation under R.I. Gen. Laws §11-1-9 to commit assault with a dangerous weapon is a COV under section §16(b).

• Matter of Palacios, 22 I&N Dec. 434 (BIA 1998):

holding that 1st degree arson under Alaska law involves substantial risk of physical force being used.

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JOHNSON v. UNITED STATES

135 S. Ct. 2551, 2557-58 (2015)

• Supreme Court previously struck down almost identical

residual clause - the “violent felony” definition in the Armed Career Criminal Act (ACCA).18 USC §924(e)(2)(B).

• ACCA required enhancement for felonious conduct that

presented a serious potential risk of physical injury.

• ACCA clause invites “more unpredictability and

arbitrariness” than the Constitution allows.

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JOHNSON EXPLAINS DIMAYA

• The residual clause created “grave uncertainty” about

estimating the risk posed, tying it to the “ordinary case.”

• Required judicial imagination to contemplate risk
• Requires an idealized result, neither based on actual

nor elemental factors.

• Uncertainty about what threshhold of risk was enough

to make a given crime a “violent felony” was problem.

• = An unacceptable combined indeterminacy

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PHYSICAL FORCE AS VIOLENT FORCE

• Johnson v. U.S., 559 U.S. 133 (2010)(involving

simple battery under Fla. Stat. §784.03(1)(a), (2) by “actually and intentionally touching” another person) = an offense that has no element the use of physical force under 18 USC §924(e)(2)(B)(i).

• U.S. v. Castleman, 134 S.Ct. 1405, n.4 (2014) = a

“domestic violence” crime as defined in reference to 18 USC §16 requires violent force. But see Voisine

• v. U.S. 579 U.S. (2016).

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BIA COV INTERPRETATIONS

• Matter of Velasquez, 25 I&N Dec. 278 (BIA 2010): following Johnson

and holding that misdemeanor assault and battery against a family or household member under Va. Code Ann. §18.2-57.2(A) is not categorically a crime of violence as it does not require violent force, and therefore not a domestic violence crime under INA §237(a)(2)(E)(i).

• Matter of Guzman-Polanco, 26 I&N Dec. 713 (BIA 2016): following

Johnson, finding that under 16(a) a COV must categorically include “violent force” and withdrawing from Matter of Martin, 23 I&N Dec. 491 (BIA 2002). But see 26 I&N Dec. 806, 808, leaving question of whether use/threatened use of poison involves sufficient force.

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MORE BIA COV INTERPRETATIONS

• Matter of Kim, 26 I&N Dec. 912, 914 (BIA 2017): “The

term ‘use’ under § 16(a) ‘requires active employment’ and therefore denotes volition.” (quoting Leocal v. Ashcroft, 543 U.S. 1, 9 (2004), but a malicious act resulting in great bodily injury impliedly requires more than recklessness).

• Matter of Cervantes Nunez, 27 I&N Dec. 238 (BIA 2018):

ruling that attempted voluntary manslaughter in violation of Cal. Penal Code §§192(a), 664 is a COV because it requires specific intent to cause death.