Section Review

U.S. Supreme Court holds that DUI does not constitute a removable offense for immigration purposes

Javier Pico practices at his firm in Boston, which focuses on immigration matters, including removal cases and visa processing cases, as well as residential real estate matters.
In Leocal v. Ashcroft, 125 S. Ct. 377, 543 U.S. __ (Nov. 9, 2004), a unanimous Supreme Court held that a conviction for driving under the influence (DUI) with a mens rea of negligence or less is not a crime of violence, as defined under 18 U.S.C. ß 16, and, therefore, not an aggravated felony under INA ß 101(a)(43)(F), and thus cannot make a person removable.

Josue Leocal, a Haitian national, is a permanent U.S. resident older than 20. In 2000, he plead guilty to two counts of driving under the influence of alcohol, DUI and causing serious bodily injury in an accident, under Florida Statute ß 316.193(3)(c)(2). He was sentenced to a two-and-a-half-year term of imprisonment. While serving his term in prison, the Department of Homeland Security, DHS, formerly Immigration and Naturalization Service, INS, held an administrative removal hearing in which the immigration judge determined that Leocal's state conviction was a crime of violence, making Leocal an aggravated felon without any form of relief against removal. He was ordered removed to Haiti upon the completion of his state sentence.

The Board of Immigration Appeals and the Eleventh Circuit affirmed. Notably, the Florida statute under which Leocal was convicted required proof of causation of injury, but did not require proof of mental state. The Eleventh Circuit held that it was bound by its earlier decision in Le v. United States Attorney General, 196 F.3d 1352 (11th Cir. 1999), holding that a conviction under the Florida DUI statute is a crime of violence under 18 U.S.C. ß 16(a). This issue was decided with various results in different circuits. To resolve the conflict the Supreme Court heard the matter on certiorari, and unanimously reversed the Eleventh Circuit's ruling.

Under INA ß 101(a)(43)(F), a crime of violence is defined by reference to 18 U.S.C. ß 16, as a conviction with at least a one year sentence that "has as an element the use, attempted use, or threatened use of physical force against the person or property of another," 18 U.S.C. ß 16(a), or "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. ß 16(b).

With respect to subsection (a), the Court held that "[t]he critical aspect of ß 16(a) is that a crime of violence is one involving the "use . . . of physical force against the person or property of another." Giving these words their "ordinary or natural meaning," the Court reasoned that a person who accidentally "uses . . . physical force against" another by stumbling and falling into him does not actively employ force. The critical phrase of section 16(a) "most naturally suggests a higher degree of intent than negligent or merely accidental conduct," the Court concluded. Accordingly, the Court found that a DUI offense with a mens rea of negligence or less is not a crime of violence as defined under section 16(a).

With respect to section 16(b), the Court determined that it "simply 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 Court acknowledged that the language of section 16(b) is broader than the language of section 16(a), but found that the provisions should be construed identically because both contained the element of the use of physical force against the person or property of another. The Court distinguished the risk of use of force versus the risk of injury to another, clarifying that 18 U.S.C. ß 16(b) is concerned specifically with the use or risk of use of force as a required element in committing a crime against another, and not merely the risk of injury resulting from reckless conduct. Accordingly, the Court found that a DUI offense with a mens rea element of negligence or less is not a crime of violence as defined under section 16(b).

The Court reasoned that DUI crimes are not the types of crimes typically constituting a crime of violence, which are those using intentional physical force against another. Furthermore, the Court also noted that Congress had noted this distinction in the INA. INA ß 101(h) defines a "serious nonpolitical offense" as any felony, any crime of violence, or any crime of reckless driving or driving while intoxicated or under the influence of alcohol or prohibited substances if such crime involves personal injury to another.

The Court noted that in that statute Congress distinguished a crime of violence from a DUI, and that including DUI offenses in the meaning of 18 U.S.C. ß 16, would leave INA ß 101(h) devoid of meaning and in conflict with that "whenever possible, every word of a statute should be given effect." Finally, the Court clarified that those cases did not seek to present the question of whether an offense requiring proof of the reckless use of force against another is a crime of violence under 18 U.S.C. ß 16.

Having found that Leocal's conviction was neither a crime of violence nor was he an aggravated felon, the Court ordered Leocal, who was now in Haiti, to be brought back to the U.S. as a legal permanent resident and vacated his removal order.

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