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Criminal Law Newsletter

Impact of the Ashcroft Decision on Expedited Deportation

The Immigration and Nationality Act (INA) permits deportation of an alien convicted of an “aggravated felony,” which can include “a crime of violence for which the term of imprisonment [is] at least one year.” In line with this provision, aliens convicted of driving under the influence of alcohol (DUI) in states which characterize a DUI conviction as a crime of violence have been subjected to automatic deportation, even if they have been legally residing in the U.S. for years.

However, the U.S. Supreme Court recently barred deportation of an alien convicted of DUI pursuant to the aforementioned INA provision. In November 2004, the Court held in Leocal v. Ashcroft that state DUI offenses that do not require proof of any mental state, or require only a showing that an individual acted negligently in operating the vehicle, are not crimes of violence for purposes of expedited alien deportation.

Crimes of Violence

Pursuant to 18 U.S.C. Section 16, a “crime of violence” for which a convicted alien may be deported must involve either one of the following:

  • Use of physical force against the person or property of another; or
  • A felony that 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 Court in Ashcroft interpreted the first definition as requiring “active employment” of force. Accordingly, the Court concluded that a DUI offense is not a crime of violence where the DUI statute under which an alien was convicted does not require proof of any mental state or only requires proof that an individual acted negligently. The Court reasoned that a person convicted of DUI does not actively employ physical force against another, where the state’s DUI statute does not require “a higher degree of intent than negligent or merely accidental conduct.”

Furthermore, the Court concluded that the second definition does not cover all negligent conduct (e.g., negligent operation of a vehicle), where the negligent conduct at issue did not involve a substantial risk that physical force might be used against another by virtue of committing the offense. The Court distinguished a DUI offense from burglary, which “involves a substantial risk that the burglar will use force against a victim in completing the crime.”

Implications of the Ashcroft Decision on Other Legal Immigrants

Based on these interpretations, the Court reversed a deportation order that had been issued against a lawful permanent resident by the Board of Immigration Appeals (BIA) pursuant to Section 237 of the INA. Having pled guilty to two counts of DUI and causing serious bodily injury in an accident, the legal immigrant in this case was technically eligible for automatic deportation under a Florida DUI statute that characterized DUI offenses as crimes of violence. However, since Florida’s DUI statute did not require proof of any mental state, the Court concluded that the DUI offense could not be characterized as a crime of violence. Redefining the nature of drunken driving, the Court effectively lifted the threat of deportation based on DUI convictions for millions of legal immigrants in the U.S.

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