This opinion uses the term “DUI” to mean all state and federal impaired-driving offenses, including “driving while intoxicated,” “operating under the influence,” and the like, that make it unlawful for an individual to operate a motor vehicle while impaired. This term does not include lesser included offenses, such as negligent driving, that do not require proof of impairment. Although DUIs are the offenses at issue here, nothing in this opinion prevents immigration judges or the Board of Immigration Appeals from taking into account other convictions, such as negligent driving, in determining whether to grant cancellation of removal.
Unless these immigration effects are taken into consideration by deputy district attorneys in appropriate circumstances, some defendants will be exposed to direct consequences that were not intended by the prosecutor in light of the facts and significance of the criminal offense and the background and history of the defendant. Consideration of the impact of consequences, particularly in the context of immigration consequences, is consistent with the duty of all prosecutors to pursue justice by prosecuting the guilty, protecting the innocent, and ensuring that the punishment fits the crime.
While Colorado’s Third Degree Assault may not be categorically a “Crime Involving Moral Turpitude,” causing an immigrant to be deportable under that ground, after the Tenth Circuit’s recent holding in United States v. Bettcher, 911 F.3d 1040 (10th Cir. 2018), we are no longer recommending Third Degree Assault as a safe immigration plea in the domestic violence context, as it may cause an immigrant – including any Lawful Permanent Resident – to be removable under 237(a)(2)(E)(i) of the Immigration and Nationality Act.
The phrase “crime of domestic violence” at section 237(a)(2)(E)(i) of the Act means any crime of violence (as defined in section 16 of title 18, United States Code) with a domestic component. 18 U.S.C. § 16 contains two parts; (a) and (b). Subsection (b) has been held unconstitutionally vague. Golicov v. Lynch, 837 F.3d 1065, 1074 (10th Cir. 2016). Therefore, the only issue is whether the conviction “has as an element the use, attempted use, or threatened use of physical force against the person or property of another” under subsection (a).
Immigration courts will look to the underlying facts of the case through the “circumstance specific approach” to determine whether there was a domestic relationship involved. It is immaterial if the “DV tag” at C.R.S. 18-6-800.3(1) is used for reasons beyond the scope of this blog entry.
In 2004, the Supreme Court held in Leocal v. Ashcroft, 543 U.S. 1 (2004), that a state DUI offense which (1) does not have a mens rea (state of mind) component; or which (2) requires only a showing of negligence in the operation of a vehicle is not a “crime of violence” under 18 U.S.C. 16. The Supreme Court held that accidental or negligent conduct would not constitute the use of force. The Court declined to address “whether a state or federal offense that requires proof of the reckless use of force against a person or property of another qualifies as a crime of violence under 18 U.S.C. § 16 (a).” Id. at 13.
However, after Leocal, the Tenth Circuit in United States v. Zuniga-Soto, 527 F.3d 1110 (10th Cir. 2008) held that a reckless mental state would not constitute a crime of violence under 18 U.S.C. § 16 (a). “In light of the persuasive reasoning of our sister circuits, we are convinced that recklessness falls into the category of accidental conduct that the Leocal Court described as failing to satisfy the use of physical force requirement under either of § 16’s definitions of ‘crime of violence.'” Id. at 1124.
But twelve years after Leocal, the Supreme Court issued a new case pointedly addressing the issue Leocal reserved – whether the Court would group reckless harm (voluntary acts “undertaken with awareness of their substantial risk of causing injury”) with intentional and knowing harm, or instead, with negligent and accidental harm. The Supreme Court chose the former. Voisine v. United States, 136 S. Ct. 2272, 2279 (2016). In so doing, it expressly limited its holding to 18 USCS 922(g)(9)(firearm prohibition for those convicted of misdemeanor domestic violence offenses). See also, In re Chairez-Castrejon, I26 I & N Dec. 819, n. 4 (BIA 2016).
Prior to Bettcher, Colorado’s Third Degree Assault would arguably still be a safe plea for immigration purposes under Zuniga-Soto and Chairez-Castrejon. However, Bettcher wholeheartedly adopts the reasoning in Voisine and does not limit it to 18 USCS 922(g)(9). In Bettcher, the Tenth Circuit expressly rejects the logic used in Zuniga-Soto.
Bettcher would have us confine Voisine to the misdemeanor-crime-of-domestic-violence context. By his account, “the fact that Voisine construed the word ‘use’ to include reckless conduct in the context of § 921 has no bearing on how the elements clause[s] of § 16, the ACCA, and § 4B1.2 should be interpreted.” Br. for the Appellee at 18. Yet as noted in the preceding paragraph, our court has already extended Voisine’s recklessness reasoning outside of the 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9) (misdemeanor crimes of domestic violence) context. We do so again here. None of Bettcher’s arguments for excluding reckless conduct carry more force when applied to U.S.S.G. § 4B1.2(a)(1)’s elements clause than similar arguments did when applied to the elements clauses in play in earlier cases. As did those cited cases, we recognize that Voisine reserved deciding whether recklessness sufficed to establish the “use” of force in any other elements clause, including 18 U.S.C. § 16(a). Voisine, 136 S. Ct. at 2280 n.4. But Voisine’s reading of Leocal defeats the reach we attributed to it in the Zuniga-Soto line of cases. So we now conform our reading of Leocal to that announced in Voisine, which puts us on a different course.
United States v. Bettcher, 911 F.3d 1040, 1045 (10th Cir. 2018). Although addressing a different statute than 18 U.S.C. § 16 – albeit with the exact same language – just as the court did in Zuniga-Soto, Bettcher makes clear that Colorado’s Third Degree Assault is no longer a safe plea, and will most likely be considered a deportable offense under 237(a)(2)(E)(i) of the Immigration and Nationality Act. “Simply put, [Tenth Circuit] reasoning in Zuniga-Soto and Duran has lost viability after Voisine.” Id. at 1047.
This case deals with the amendment to section 18.5 of the California Penal Code, which retroactively lowered the maximum possible sentence that could have been imposed for an immigrant’s State offense from 365 days to 364 days. The California legislature passed this amendment for the obvious reason to protect immigrants from removal. The amendment was also explicitly retroactive. However, in this case the BIA held that the amendment did not affect the applicability of section section 237(a)(2)(A)(i)(II) of the Immigration and Nationality Act (crime involving moral turpitude within 5 years of admission for which a sentence of 1 year or more may be imposed). Therefore, the immigrant in this case could not take advantage of the amendment to avoid removal. According to the BIA:
Although we recognize that section 18.5 may have retroactively modified the maximum possible sentence for the respondent’s forgery offense for purposes of State law, it does not affect the immigration consequences of his conviction under section 237(a)(2)(A)(i)(II) of the Act, a Federal law. By its plain terms, that provision is concerned with whether an alien has been convicted of a crime involving moral turpitude for which a sentence of 1 year or longer “may be imposed.” (Emphasis added.) In other words, it calls for a backward-looking inquiry into the maximum possible sentence the alien could have received for his offense at the time of his conviction.
The categorical approach does not govern whether violating a protection order under 237(a)(2)(E)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(ii) (2012), renders an alien ineligible for cancellation of removal under section 240A(b)(1)(C) of the Act, 8 U.S.C. § 1229b(b)(1)(C) (2012); instead, Immigration Judges need only decide whether the alien has been convicted within the meaning of the Act and whether that conviction is for violating a protection order under section 237(a)(2)(E)(ii). Matter of Obshatko, 27 I&N Dec. 173 (BIA 2017), followed.