257 F.3d 200 (2nd Cir. 2001), 00-4123, Dalton v Ashcroft

Docket NºDocket No. 00-4123
Citation257 F.3d 200
Party NameThomas Anthony Dalton, Petitioner, v. John Ashcroft, Attorney General of the United States; Immigration and Naturalization Service, Respondents.
Case DateJuly 20, 2001
CourtUnited States Courts of Appeals, Court of Appeals for the Second Circuit

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257 F.3d 200 (2nd Cir. 2001)

Thomas Anthony Dalton, Petitioner,


John Ashcroft, Attorney General of the United States; Immigration and Naturalization Service, Respondents.

Docket No. 00-4123

United States Court of Appeals, Second Circuit

July 20, 2001

Argued: January 26, 2001

Petitioner was ordered removed from the country as an alien convicted of an "aggravated felony" after pleading guilty to a felony count of driving while intoxicated under New York law. The Board of Immigration Appeals denied petitioner's appeal on the basis that his crime constituted a "crime of violence" under 18 U.S.C. § 16(b).


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Mark T. Kenmore, Buffalo, NY, for Petitioner.

Meredith E. Kotler, Assistant United States Attorney, New York, NY (Mary Jo White, United States Attorney, Diogenes P. Kekatos and Jeffrey S. Oestericher, Assistant United States Attorneys, of counsel), for Respondents.

Before: WALKER, Chief Judge, OAKES and PARKER, Circuit Judges.

Chief Judge Walker dissents in a separate opinion

OAKES, Senior Circuit Judge:

Petitioner was ordered removed from the United States under § 237(a)(2)(A)(iii) of the Immigration and Nationality Act of 1952 ("INA"), codified at 8 U.S.C. § 1227(a)(2)(A)(iii)(2000), as an alien convicted of an "aggravated felony" based upon his New York State felony conviction for operating a vehicle while intoxicated ("DWI").1 Petitioner claims that his conviction does not amount to a "crime of violence" under 18 U.S.C. § 16(b)(2000), as is required by the definition of "aggravated felony" provided in 8 U.S.C. § 1101(a)(43)(F)(2000).

The principal question on appeal is whether a felony DWI conviction under New York State law constitutes a "crime of violence" under 18 U.S.C. § 16(b). We conclude that it does not and accordingly vacate the deportation order.


I. Factual Background

Thomas Anthony Dalton, a native and citizen of Canada, has been living continuously in the United States as a lawful permanent resident since 1958, before he was one year old. His parents and siblings reside in the United States as well. Dalton has been convicted several times under New York Vehicle and Traffic Law ("NYVTL") § 1192.3 for operating a vehicle while intoxicated. He pleaded guilty to his most recent DWI offense on January 15, 1998, and due to two previous convictions within ten years preceding the third, his crime and sentence were enhanced under NYVTL § 1192.1(c)(ii) to become a class D felony with an accompanying 1½ to 4½ years' imprisonment term.

II. Statutory Background

Under 8 U.S.C. § 1227(a)(2)(A)(iii), "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable." An "aggravated felony" is defined in 8 U.S.C. § 1101(a)(43)(F) as "a crime of violence (as defined in section 16 of Title 18...) for which the term of imprisonment [is] at least one year." A "crime of violence," in turn, is a term of art defined in 18 U.S.C. § 16 as:

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(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, 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.

III. Procedural Background

In April 1999, while Dalton was serving his prison sentence, the Immigration and Naturalization Service ("INS") initiated removal proceedings against him, charging that he was removable as an alien convicted of an aggravated felony resulting from a felony DWI conviction in violation of NYVTL § 1192.3.

During two telephonic removal hearings, Dalton admitted that he was convicted under NYVTL § 1192.3, but denied the ground for removal, namely, that he had committed an "aggravated felony" as defined under 8 U.S.C. § 1101(a)(43)(F) or a "crime of violence" as defined under 18 U.S.C. § 16(b).

In December 1999, the Immigration Judge ("IJ") rejected Dalton's argument and ordered him removed to Canada without the opportunity to request relief.2 Dalton appealed the IJ's decision to the Board of Immigration Appeals ("BIA"). Basing its reasoning on BIA precedent regarding Texas and Arizona DWI statutes3 as well as a Fifth Circuit opinion that has since been withdrawn,4 the BIA concluded on May 17, 2000, that a violation of NYVTL § 1192.3 constitutes a "crime of violence"5 and affirmed the IJ's removal order.


As an initial matter, we note that the scope of our review in this case is limited jurisdictionally under 8 U.S.C. § 1252(a)(2)(C)(2000), which precludes judicial review of final orders of removal against aliens who are removable by reason of having committed, inter alia, an aggravated felony. We do retain jurisdiction, however, to review the question whether, as a matter of law, Dalton committed an "aggravated felony" under 8 U.S.C. § 1101(a)(43)(F), as defined by 18 U.S.C. § 16. See Bell v. Reno, 218 F.3d 86, 89 (2d Cir. 2000).

We also note that while we apply Chevron deference, see Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984), to the BIA's interpretation of the INA, we review de novo its interpretation of federal or state criminal statutes. See Sutherland v. Reno, 228 F.3d 171, 173-74 (2d Cir. 2000) (citing Michel v. INS, 206 F.3d 253, 262 (2d Cir. 2000)). Accordingly, because the INA defines an "aggravated felony" in § 1101(a)(43)(F) by reference to a "crime

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of violence" in 18 U.S.C. § 16, we review de novo the question whether NYVTL § 1192.3 constitutes a "crime of violence" that, in turn, constitutes a deportable "aggravated felony" under the INA.

I. Application of Categorical Analysis to "Crime of Violence"

Under the language of the statute, a § 16(b) "crime of violence" is analyzed "by its nature." We believe that this language compels an analysis that is focused on the intrinsic nature of the offense rather than on the factual circumstances surrounding any particular violation. See United States v. Velazquez-Overa, 100 F.3d 418, 420-21 (5th Cir. 1996) (citing Taylor v. United States, 495 U.S. 575 (1990)); United States v. Aragon, 983 F.2d 1306, 1312 (4th Cir. 1993); United States v. Rodriguez, 979 F.2d 138, 140-41 (8th Cir. 1992). Under this approach, commonly referred to as the "categorical approach" to criminal statutory interpretation, "the singular circumstances of an individual petitioner's crimes should not be considered, and only the minimum criminal conduct necessary to sustain a conviction under a given statute is relevant[.]" Michel v. INS, 206 F.3d at 270 (Calabresi, J., dissenting); see also Tapia Garcia v. INS, 237 F.3d 1216, 1221-22 (10th Cir. 2001) (citations omitted).

In this Circuit, we have long endorsed categorical analyses of criminal statutes in the context of deportation orders for crimes of moral turpitude. See United States ex rel. Guarino v. Uhl, 107 F.2d 399, 400 (2d Cir. 1939). Our decisions in this area stand for the proposition that the offense, judged from an abstracted perspective, must inherently involve moral turpitude; in other words, any conduct falling within the purview of the statute must by its nature entail moral turpitude. See id. (holding that because defendant could be convicted under relevant statute for crimes not involving moral turpitude, statute could not form basis for order of deportation based upon commission of crime of moral turpitude); see also United States ex rel. Zaffarano v. Corsi, 63 F.2d 757, 758 (2d Cir. 1933) (finding that conviction for second degree assault did not "inherent[ly]" involve moral turpitude because statute could encompass crimes that both did and did not involve moral turpitude); United States ex rel. Robinson v. Day, 51 F.2d 1022, 1022-23 (2d Cir. 1931) ("When by its definition [a statute] does not necessarily involve moral turpitude, the alien cannot be deported because in the particular instance his conduct was immoral."). More recently, we have reaffirmed this approach in Michel v. INS, where we stated that "[a]s a general rule, if a statute encompasses both acts that do and do not involve moral turpitude, the BIA cannot sustain a deportability finding [predicated on moral turpitude, based] on that statute." 206 F.3d at 263 (quoting Hamdan v. INS, 98 F.3d 183, 187 (5th Cir. 1996)).

Based upon the language of the statute requiring analysis of the "nature" of the crime, as well as by analogy to this Circuit's law regarding moral turpitude, we believe that the categorical approach is appropriate for determining whether an offense is a crime of violence under § 16(b) in the context of deportation proceedings.6

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Furthermore, the categorical approach is especially appropriate in the current context where the relevant facts may be up to ten years old and may never have been developed in a trial court.7

II. Categorical Analysis of NYVTL § 1192.3

In the instant case, upon a de novo review of the relevant criminal statute, we conclude that not all violations of NYVTL § 1192.3 are "by their nature" "crimes of violence" because risk of physical force is not a requisite element of the New York DWI offense.

NYVTL § 1192.3 provides, in its entirety, that "[n]o person shall operate a motor vehicle while in an intoxicated condition." Recently, in People v. Prescott, 722 N.Y.S.2d 778 (N.Y. 2001), the New York Court of Appeals clarified the nature of the state DWI offense and the breadth of the statute. The Prescott Court held that attempted DWI was not a legally cognizable offense distinct from the substantive crime because the crime of attempt is already encompassed within NYVTL § 1192.3. See id. at 782. The court stressed that:

[T]he breadth of conduct prohibited by Vehicle and Traffic Law § 1192, as interpreted by our courts, is sweeping. Our courts have long recognized that...

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