In re Martin
| Decision Date | 26 September 2002 |
| Docket Number | File A30 335 457.,Interim Decision Number 3481 |
| Citation | 23 I&N Dec. 491 |
| Parties | In re Jacques MARTIN, Respondent |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated January 9, 2002, an Immigration Judge concluded that the respondent was removable from the United States under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2000), as an alien convicted of an aggravated felony. The respondent has appealed from that decision, arguing that the Immigration Judge erred as a matter of law in finding him removable and requesting that removal proceedings be terminated. The Immigration and Naturalization Service has not filed an opposition to the respondent's appeal. The appeal will be dismissed.
The respondent is a native and citizen of Canada who entered the United States as a lawful permanent resident in 1970. The record reflects that on April 19, 2001, he was convicted pursuant to a guilty plea in the Superior Court for the Judicial District of New Britain, Connecticut, of the offense of third-degree assault in violation of section 53a-61 of the Connecticut General Statutes, which is a class A misdemeanor under Connecticut law. He was sentenced to a 1-year term of imprisonment.
On the basis of this conviction, the Service charged the respondent with removability as an alien convicted of a crime of violence for which a term of imprisonment of at least 1 year was imposed, which is an aggravated felony under section 101(a)(43)(F) of the Act, 8 U.S.C. § 1101(a)(43)(F) (2000). The Immigration Judge sustained the charge of removability, finding that the respondent's offense constituted a "crime of violence" under 18 U.S.C. § 16(a) (2000). Accordingly, the respondent was ordered removed to Canada.
The respondent's appeal raises the question whether the offense of third-degree assault in violation of Connecticut law constitutes a crime of violence under 18 U.S.C. § 16 and is therefore an aggravated felony under section 101(a)(43)(F) of the Act.
Both the respondent's criminal conviction and his removal proceedings occurred in Connecticut. Because this appeal requires us to determine the scope of 18 U.S.C. § 16, a provision of federal criminal law incorporated by reference in the Immigration and Nationality Act, our adjudication is governed by the authoritative precedents of the United States Court of Appeals for the Second Circuit. See, e.g., Matter of Yanez, 23 I&N Dec. 390 (BIA 2002); Matter of Anselmo, 20 I&N Dec. 25 (BIA 1989). Under general Second Circuit principles, the determination whether a state crime is a "crime of violence" must be made by reference to the statutory definition of the crime, as elucidated by the courts of the convicting jurisdiction. See Dalton v. Ashcroft, 257 F.3d 200, 205 (2d Cir. 2001) ().
The respondent was convicted under section 53a-61(a) of the Connecticut General Statutes, which provides as follows:
A person is guilty of assault in the third degree when: (1) With intent to cause physical injury to another person, he causes such injury to such person or to a third person; or (2) he recklessly causes serious physical injury to another person; or (3) with criminal negligence, he causes physical injury to another person by means of a deadly weapon, a dangerous instrument or an electronic defense weapon.
Conn. Gen. Stat. § 53a-61(a) (2000). We agree with the Immigration Judge's conclusion that the respondent was convicted under section 53a-61(a)(1). Accordingly, we confine our analysis to that section, which criminalizes acts that intentionally cause "physical injury" to others.1 The record of the respondent's conviction, which in this case includes an official transcript of his plea colloquy before the state trial judge, reveals that his conviction arose from an act of domestic violence in which he intentionally used actual and threatened physical force against his ex-girlfriend, with the intention of injuring her and with the result that she suffered a "physical injury."
Section 101(a)(43) of the Act defines the categories of offenses that qualify as aggravated felonies under the immigration laws and provides that the term "aggravated felony" applies to "an offense described in this paragraph whether in violation of Federal or State law." Included in the aggravated felony definition is
a crime of violence (as defined in section 16 of title 18, United States Code, but not including a purely political offense) for which the term of imprisonment [is] at least one year.
Section 101(a)(43)(F) of the Act. The term "crime of violence" referenced in this portion of the aggravated felony definition is, in turn, defined as
(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.
The offense of third-degree assault is classified as a misdemeanor under Connecticut law, and because the offense is punishable by a maximum term of imprisonment of 1 year, it is also a misdemeanor for purposes of federal law. See 18 U.S.C. § 3559(a)(5) (2000) (). Therefore, the respondent's offense cannot constitute a crime of violence under 18 U.S.C. § 16(b), which is confined to felony offenses by its terms. The status of the respondent's offense as a crime of violence must therefore be examined by reference to 18 U.S.C. § 16(a).2
The legislative history of the crime of violence definition provides explicit support for the conclusion that an assault involving the intentional infliction of physical injury has as an element the use of physical force within the meaning of 18 U.S.C. § 16(a). This conclusion is bolstered by recent decisions from several federal appeals courts interpreting 18 U.S.C. § 16 and other federal statutes containing virtually identical language, as well as Connecticut decisions indicating that the use or threatened use of physical force is inherent to the offense of third-degree assault under section 53a-61(a)(1).
The Senate Judiciary Committee's Report on the Comprehensive Crime Control Act of 1983, which defined the phrase "crime of violence" under 18 U.S.C. § 16, specifically stated that a crime of violence
means 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 any felony that, by its nature, involves the substantial risk that physical force against another person or property may be used in the course of its commission. The former category would include a threatened or attempted simple assault or battery on another person ....
S. Rep. No. 98-225, at 307 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3486-87 (emphasis added).
The Judiciary Committee Report also indicated in a footnote that offenses under 18 U.S.C. § 113(e) (now codified at 18 U.S.C. § 113(a)(5))—which criminalizes misdemeanor "simple assault" in cases arising within the maritime or territorial jurisdiction of the United States—would qualify as crimes of violence under 18 U.S.C. § 16(a). S. Rep. No. 98-225, at 307 n. 11. As the Second Circuit has acknowledged, "simple assault" under 18 U.S.C. § 113(a)(5) embraces the common law meaning of the term, which is defined as a crime "`committed by either a willful attempt to inflict injury upon the person of another, or by a threat to inflict injury upon the person of another which, when coupled with an apparent present ability, causes a reasonable apprehension of immediate bodily harm."' United States v. Chestaro, 197 F.3d 600, 605 (2d Cir. 1999) (quoting United States v. Johnson, 637 F.2d 1224, 1242 n.26 (9th Cir. 1980)), cert. denied, 530 U.S. 1245 (2000).
By expressly including misdemeanor simple assault offenses within the crime of violence definition at 18 U.S.C. § 16(a), Congress unequivocally manifested its understanding that assault offenses involving the intentional infliction or threatened infliction of "injury" or "bodily harm," such as those described by 18 U.S.C. § 113(a)(5) and section 53a-61(a)(1) of the Connecticut General Statutes, have as an inherent element the actual or threatened use of physical force.3
The Second Circuit has not yet confronted the precise question involved in this case, namely whether an assault offense defined under section 53a-61(a)(1) of the Connecticut General Statutes or another closely analogous statute has as an element the...
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