Matter of Alcantar
| Decision Date | 25 May 1994 |
| Docket Number | Interim Decision Number 3220,A-72101831 |
| Citation | 20 I&N Dec. 801 |
| Parties | MATTER OF ALCANTAR In Deportation Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision rendered on September 20, 1993, the immigration judge found the respondent deportable under section 241(a)(1)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(1)(B) (Supp. IV 1992), for entry without inspection, and ordered him deported to Mexico. The immigration judge also determined that the respondent was not deportable under section 241(a)(2)(A)(iii) of the Act for conviction of an "aggravated felony," and it is this determination which the Immigration and Naturalization Service has challenged in its appeal.1 The appeal will be sustained, and a new order of deportation will be entered. The Service's request for oral argument before this Board was withdrawn by Appellate Counsel for the Service.
The Service's charge of deportability under section 241(a)(2)(A)(iii) of the Act is based on the respondent's June 18, 1992, conviction in the Circuit Court of Cook County, Chicago, Illinois, for involuntary manslaughter committed on June 25, 1991. The respondent had been charged with first degree murder on the grounds that he "without lawful justification intentionally and knowingly struck Karla Alcantar Lemus with his fists and killed her," but he pleaded guilty to, and was convicted of, involuntary manslaughter. The respondent was sentenced to 10 years in prison. The Service contends that this conviction is a "crime of violence," and therefore an "aggravated felony" within the meaning of section 101(a)(43) of the Act, 8 U.S.C. § 1101(a)(43) (Supp. IV 1992).
CRIME OF VIOLENCE UNDER 18 U.S.C. § 16
Section 101(a)(43) of the Act provides as follows:
The term "aggravated felony" means murder, any illicit trafficking in any controlled substance (as defined in section 102 of the Controlled Substances Act), including any drug trafficking crime as defined in section 924(c)(2) of title 18, United States Code, or any illicit trafficking in any firearms or destructive devices as defined in section 921 of such title, any offense described in section 1956 of title 18, United States Code (), or any crime of violence (as defined in section 16 of title 18, United States Code, not including a purely political offense) for which the term of imprisonment imposed (regardless of any suspension of such imprisonment) is at least 5 years, or any attempt or conspiracy to commit any such act. Such term applies to offenses described in the previous sentence whether in violation of Federal or State law and also applies to offenses described in the previous sentence in violation of foreign law for which the term of imprisonment was completed within the previous 15 years.
Section 101(a)(43) of the Act (emphasis added). The inclusion of "crimes of violence" in the definition of an "aggravated felony" was accomplished by section 501 of the Immigration Act of 1990 and applies to offenses committed on or after November 29, 1990. See section 501 of the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, 5048 (effective Nov. 29, 1990), as corrected by section 306(a)(1) of the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, Pub. L. No. 102-232, 105 Stat. 1733, 1751 (enacted Dec. 12, 1991).
The respondent's offense was committed on June 25, 1991, subsequent to the November 29, 1990, effective date for considering crimes of violence as aggravated felonies. See section 501(b) of the Immigration Act of 1990, 104 Stat. at 5048. There is no suggestion that the offense was "purely political." In addition, the respondent was sentenced to 10 years' imprisonment for his conviction and, therefore, the 5-year sentence prerequisite in section 101(a)(43) of the Act has been satisfied. The only issue is whether the respondent's conviction for involuntary manslaughter falls within the definition of "crime of violence" found at 18 U.S.C. § 16 (1988).
The term "crime of violence" is defined in 18 U.S.C. § 16 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 respondent was convicted of involuntary manslaughter under the following provision:
A person who unintentionally kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly, except in cases in which the cause of the death consists of the driving of a motor vehicle, in which case the person commits reckless homicide.
Ill. Rev. Stat. ch. 38, para. 9-3(a) (1992). Conviction under this provision is designated as a class 3 felony. Id. at para. 9-3(d).
Without citing any authority, the immigration judge found that "intent is crucial to finding that a conviction constitutes a crime of violence for purposes of 18 U.S. Code Section 16." As the provision under which the respondent was convicted is based on unintentional killing, the immigration judge concluded that the respondent was not convicted of a crime of violence within 18 U.S.C. § 16, and, consequently, was not convicted of an aggravated felony under section 101(a)(43) of the Act.
Although relatively new to the Immigration and Nationality Act, the term "crime of violence" as defined at 18 U.S.C. § 16 is used in many places in the United States Code and has a history of interpretation in the courts upon which we can draw in applying the term for purposes of section 101(a)(43) of the Act. First, 18 U.S.C. § 16 serves as the general definition of a "crime of violence" for title 18, see United States v. Aragon, 983 F.2d 1306, 1311 (4th Cir. 1993), which includes numerous references to the term. See 18 U.S.C. § 929(a)(1) (1988) (); 18 U.S.C. § 1952(a)(2) (1988 & Supp. IV 1992) (use of interstate travel, commerce, or mail with intent to commit a crime of violence); 18 U.S.C. § 1959(a)(4) (1988) (); 18 U.S.C. § 3521(a)(1) (1988) (); 18 U.S.C. § 5032 (1988 & Supp. IV 1992) (juvenile delinquency proceedings and transfer for criminal prosecution); 18 U.S.C. § 5038 (1988) (); cf. 15 U.S.C. § 1245(b) (1988) (); 20 U.S.C. § 1232g(b)(6) (Supp. II 1990) (); 25 U.S.C. § 3207(b) (Supp. IV 1992) (Indian child protection); 28 U.S.C. § 994(h), (i), (j) (1988) (duties of United States Sentencing Commission); 40 U.S.C. § 212a (Supp. IV 1992) ().
In addition, separate definitions of the term "crime of violence" which are virtually identical to that at 18 U.S.C. § 16 are found at 18 U.S.C. §§ 924(c)(3) and 3156(a)(4) (1988). And, 18 U.S.C. § 16 itself was previously used at 18 U.S.C. § 924(c) and at section 4B1.2 of the United States Sentencing Guidelines prior to the November 1, 1989, amendments to section 4B1.2. See 18 U.S.C.A. app. 4, § 4B1.2 (West Supp. 1994) ("Sentencing Guidelines"). We will briefly look at each of these sections.
Under 18 U.S.C. § 924, increased liability is authorized for various offenses, including any "crime of violence," which is defined, for purposes of § 924 as
an offense that is a felony and—
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) 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. § 924(c)(3); see also 18 U.S.C. §§ 924(c)(1) (...
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