Aguilar v. Attorney Gen. of the United States
Citation | 663 F.3d 692 |
Decision Date | 29 November 2011 |
Docket Number | No. 10–3926.,10–3926. |
Parties | Victor Jair AGUILAR, Petitioner, v. ATTORNEY GENERAL OF the UNITED STATES, Respondent. |
Court | United States Courts of Appeals. United States Court of Appeals (3rd Circuit) |
OPINION TEXT STARTS HERE
Wayne P. Sachs [Argued], Philadelphia, PA, for Petitioner.
Eric H. Holder, Jr., Thomas W. Hussey, Rebecca H. Phillips [Argued], Ann C. Varnon, United States Department of Justice, Office of Immigration Lit., Civ. Div., Washington, DC, for Respondent.
Before: RENDELL, JORDAN and BARRY, Circuit Judges.
Victor Aguilar petitions for review of a decision of the Board of Immigration Appeals (“BIA”) ordering that he be removed because he was convicted of “sexual assault” under 18 Pa. Cons.Stat. § 3124.1 (“§ 3124.1”), which the BIA determined was a crime of violence under 18 U.S.C. § 16(b) (“§ 16(b)”), and therefore an aggravated felony under 8 U.S.C. § 1101(a)(43)(F). Aguilar asserts that crimes involving a minimum mens rea of recklessness cannot be crimes of violence under § 16(b). Accordingly, he argues that, because the minimum mens rea necessary for conviction under § 3124.1 is recklessness, the BIA erred in finding that his conviction constituted a crime of violence under § 16(b). Contrary to Aguilar's assertion, however, our precedent does not foreclose the possibility that a reckless crime can be a crime of violence under § 16(b). Because sexual assault, as defined by § 3124.1, raises a substantial risk that the perpetrator will intentionally use force in furtherance of the offense, we agree with the BIA that it constitutes a crime of violence under § 16(b). We will therefore deny Aguilar's petition.
In 2000, Aguilar, a native and citizen of Honduras, was admitted to the United States as a lawful permanent resident. Four years later, in the Court of Common Pleas of Berks County, Pennsylvania, he was found guilty of both sexual assault, a second degree felony, under § 3124.1,1 and indecent assault, a second degree misdemeanor, under 18 Pa. Cons.Stat. § 3126(a)(2). He was sentenced to a term of imprisonment of forty-six months to eight years, followed by two years of probation. In that same proceeding, the jury found Aguilar not guilty of rape under 18 Pa. Cons.Stat. § 3121(a)(1). 2 Based on those felony and misdemeanor convictions, the Department of Homeland Security (“DHS”) issued Aguilar a Notice to Appear, charging him as removable under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), because he had been convicted of a crime of violence under § 16(b) and hence an aggravated felony as defined by 8 U.S.C. § 1101(a)(43)(F).3
Section 16(b) defines a “crime of violence” as “any other offense [not described in § 16(a) 4 ] 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.” 18 U.S.C. § 16(b). In an “Interlocutory Ruling on Aggravated Felony,” the Immigration Judge (“IJ”) “sustain[ed] the aggravated felony ground of removal under [ 8 U.S.C. § 1227(a)(2)(A)(iii) ].” (AR at 86.) The IJ held that, since “[t]he confrontation inherent in engaging in non-consensual sexual or deviant intercourse” creates a substantial risk that physical force may be used in the course of committing the offense, sexual assault under § 3124.1 is a crime of violence under § 16(b). ( Id.) The IJ reasoned that, although § 3124.1 “cover[s] those occasions where a victim is compelled to engage in sexual intercourse or deviant sexual intercourse without consent even where no force was applied,” (AR at 85), § 16(b) can nevertheless cover offenses under § 3124.1 because § 16(b) only requires “a substantial risk that physical force may be used against the person in the course of committing the offense,” (AR at 86).
Aguilar appealed to the BIA. Like the IJ, the BIA reasoned that “even if the intercourse required by [§ 3124.1] is accomplished without physical force or physical resistance, the offense of penetrating another person without [that person's] consent necessarily disregards the substantial risk of physical force being used to actually overcome the victim's lack of consent.” (AR at 4.) Thus, the BIA dismissed the appeal.
Aguilar has timely petitioned us for review.
Pursuant to 8 U.S.C. § 1252(a), we have jurisdiction to consider “ ‘questions of law raised upon a petition for review,’ including petitions for review of removal orders based on aggravated felony convictions.” 5 Tran v. Gonzales, 414 F.3d 464, 467 (3d Cir.2005) (quoting 8 U.S.C. § 1252(a)(2)(D)). Since the interpretation of criminal provisions “is a task outside the BIA's special competence and congressional delegation ... [and] very much a part of this Court's competence,” our review is de novo. See id. ( ).
III. DiscussionA. The Categorical Approach
This case requires us to interpret the meaning and application of the type of aggravated felony defined by statute as a “crime of violence.” See Singh v. Ashcroft, 383 F.3d 144, 150 (3d Cir.2004) ( ). First, we must ascertain the definition of a “crime of violence” under the enumerating statute, 8 U.S.C. § 1101(a)(43)(F), which incorporates § 16(b) by reference, and second, we must compare that federal definition to the statute of conviction, namely sexual assault under § 3124.1. Restrepo v. Att'y Gen. of the U.S., 617 F.3d 787, 791 (3d Cir.2010). Case law refers to this kind of analysis as the “categorical approach” to determining whether a state law conviction constitutes an aggravated felony under federal law. Taylor v. United States, 495 U.S. 575, 601, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Applying the categorical approach, “we look to the elements of the statutory state offense, not to the specific facts [of the case], reading the applicable statute to ascertain the least culpable conduct necessary to sustain conviction under the statute.” Denis v. Att'y Gen. of the U.S., 633 F.3d 201, 206 (3d Cir.2011) (citations and internal quotation marks omitted).6
B. Crime of Violence
The question before us is whether sexual assault under § 3124.1, which has a minimum mens rea of recklessness,7 is a crime of violence under § 16(b). Aguilar argues that it is not, because he reads our precedent as barring any crime that can be committed recklessly from qualifying as a § 16(b) crime. The government argues that, notwithstanding the possibility that § 3124.1 may be violated recklessly, “sexual assault,” as defined by that statute, is a crime of violence under § 16(b) because it creates a substantial risk that force may be used. The preliminary issue, then, is whether, under our precedent, the fact that a crime can be committed with a mens rea of recklessness necessarily disqualifies it from being a crime of violence under § 16(b). We conclude that reckless crimes can be crimes of violence under § 16(b) because, under the terms of the statute and applicable case law, the focus must be on the risk of the intentional use of force, not merely on mens rea, as Aguilar urges. However, as the relevant precedents are nuanced and deserving of discussion, we will review them first and apply the proper test to the crime at issue, before turning to cases examining similar crimes, which have consistently been held to be crimes of violence.
As already noted, § 16(b) provides that a crime of violence is “any other offense [not described in § 16(a) 8 ] 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.” 18 U.S.C. § 16(b). Mens rea is not featured in that definition, but both the Supreme Court and our court have considered mens rea when determining what constitutes a crime of violence under § 16(b). Under those precedents, crimes involving a mens rea of negligence or of a variant of recklessness that we have called “pure” recklessness have been held not to be crimes of violence under § 16(b) because, by their nature, they do not raise a substantial risk that physical force may be used. E.g., Tran, 414 F.3d at 465; see Leocal v. Ashcroft, 543 U.S. 1, 11, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004). Those precedents, however, do not foreclose all crimes with a mens rea of recklessness from qualifying as crimes of violence. Although the mental state necessary to satisfy the substantive elements of a crime may have a bearing on the “substantial risk” inquiry required by § 16(b), a reckless mens rea does not necessarily dictate that a crime falls outside of § 16(b). Case law instead follows the plain language of § 16(b) and focuses on whether the crime, by its nature, raises a substantial risk that force may be used. Thus, a crime that can be committed recklessly may still qualify as a crime of violence under § 16(b) if that crime, by its nature, raises such a risk.
In Leocal v. Ashcroft, the Supreme Court held that a Florida DUI offense 9 is not a crime of violence under § 16(b) because “[i]n no ‘ordinary or natural’ sense can it be said that a person risks having to ‘use’ physical force against another person in the course of operating a vehicle while intoxicated and causing injury.” 543 U.S. at 11, 125 S.Ct. 377. The Court reasoned that § 16(b):
covers offenses that naturally involve a person acting in disregard of the risk that physical force might be used against another in committing an offense. The reckless disregard in § 16 relates not to the general conduct or to the possibility that harm will result from a person's conduct, but to the risk that the use...
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