The legal quagmire of the definition of an aggravated felony for Immigration purposes.

The purpose of this article, is to focus on crimes of violence that could also be aggravated felonies under the Immigration & Nationality Act and therefore subject the defendant to removal ( this is the same thing as deportation but the INS prefers to call deportation proceedings removal proceedings). It is very important that, if you are in a situation where you are charged with a crime that is an aggravated felony, that your lawyer must be aware of the immigration consequences of such a conviction and should try to plead the case to a lesser included offense to prevent removal.

The Immigration & Nationality Act 101(43) states that legal permanent residents are subject to removal for crimes of violence. This section, was implemented by the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) in 1996. It expanded the class of crimes that could be aggravated felonies while at the same time, created a lot of confusion between federal crimes and state crimes.

A crime of violence is defined in 2 parts:

(a) an offense that has an element the use, attempted use or threatened use of physical force against the person or property of another.

(b) any other offense that is a felony and that, by it’s 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.

[1] For state crimes such as murder and voluntary manslaughter, there is no doubt that these crimes are crimes of violence. Another element that courts have used to determine if a crime is a crime of violence, is the specific intent associated with that crime. The intent element of murder and voluntary manslaughter cases are evident. But what about driving under the influence (DUI) or driving while intoxicated (DWI)? According to the above definition of a crime of violence, it would seem that a DUI or a DWI would not be a crime of violence but the courts have said otherwise.

In 1998, the Board of Immigration Appeals, reasoned that a DUI conviction was a crime of violence because “the respondent was convicted of an offense that is the type of crime that involves a substantial risk of harm to persons and property”.

[2] In another case decided a year later, the Board of Immigration Appeals held that a conviction under a Texas DWI state was a crime of violence.