Monday, October 30, 2006
Case Law Development: Reckless Domestic Violence Assault not a Categorical Crime of Violence for Purposes of Immigration Law
The United States Court of Appeals for the Ninth Circuit had to decide whether a misdemeanor domestic violence conviction under Arizona statutes constituted a "crime of domestic violence" under federal law subjecting a legally admitted resident alien to removal under 8 U.S.C.S. § 1227(a)(2)(E)(i). The court noted a recent inconsistency in its precedents regarding whether crimes of recklessness constituted categorical crimes of violence under immigration law. The court reviewed its own decisions and determined that it should join the other circuits that have restricted the category of crimes for which removal applies to crimes of violence involving specific intent. In this case, since the Arizona statute allowed conviction upon proof of reckless assault, the conviction was not a categorical crime of violence.
When a state statute of conviction does not define a categorical crime of violence, the court goes on ot apply a "modified categorical approach" in which it considers "whether any of a limited, specified set of documents--including "the state charging document, a signed plea agreement, jury instructions, guilty pleas, transcripts of a plea proceeding and the judgment" (sometimes termed "documents of conviction")--show the petitioner's conviction entailed an admission to, or proof of, the necessary elements of a crime of violence." In this case,
none of the documents ... demonstrated that [the alien's] conviction was based upon an admission, or any other proof, that he used force "intentionally" or "knowingly," as opposed to "recklessly." Accordingly, on the record now before us, we cannot conclude under the modified categorical approach that Fernandez-Ruiz committed a crime of violence or, by extension, a crime of domestic violence as defined by federal law.
The dissent took issue strongly with the rejection of recklessness as falling within the standards of categorical crimes of violence, arguing that:
Men do not beat their wives by accident. Blind to this truth, the majority ignores the realities of domestic violence and disregards congressional intent to hold that an Arizona domestic violence conviction is not a "crime of domestic violence" for purposes of a federal immigration law. The majority's hypertechnical analysis stretches the Taylor v. United States, 495 U.S. 575, 110 S. Ct. 2143, 109 L. Ed. 2d 607 (1990), categorical approach to absurdity and misreads Leocal v. Ashcroft, 543 U.S. 1, 125 S. Ct. 377, 160 L. Ed. 2d 271 (2004), as barring all crimes involving the reckless use of force from qualifying as "crimes of violence" under 18 U.S.C. § 16.
Fernandez-Ruiz v. Gonzales, 2006 U.S. App. LEXIS 26668 (9th Cir. October 26, 2006)
Opinion on web (last visited October 30, 2006 bgf)