In a published decision, the BIA held that California’s assault with intent to commit a felony offense constitutes a crime of violence type of aggravated felony. Matter of Martinez, 25 I&N Dec. 571 (BIA 2011) (Grant, Miller, and Malphrus, Board Members). Board Member Grant wrote the panel’s decision.
This case involves an LPR who was convicted by plea of violating Cal. Penal Code § 220. According to the BIA, at the time of his conviction (in 1994) § 220 provided:
Every person who assaults another with intent to commit mayhem, rape, sodomy, oral copulation, or any violation of Section 264.1 [acting in concert with another person to commit, by force or violence, rape or penetration of genital or anal openings by foreign object, etc.], 288 [lewd or lascivious acts with a child under age 14] or 289 [penetration of genital or anal openings by foreign object, etc.] is punishable by imprisonment in the state prison for two, four, or six years.
Matter of Martinez, 25 I&N Dec. at 572. That is, § 220 penalizes the commission of an assault in the course of intending to commit one of the enumerated felonies.
Martinez pleaded to violating § 220, but, pursuant to a California doctrine allowing defendants to stipulate to the factual basis of a plea and accept punishment as if guilty without actually admitting guilt, People v. West, 477 P.2d 409 (Cal. 1970), his plea “did not specify which predicate offense he intended to commit.” Matter of Martinez, 25 I&N Dec. at 572. The Immigration Judge nonetheless concluded that he was convicted of assault with intent to commit rape. Matter of Martinez, 25 I&N Dec. at 572. Accordingly, the IJ determined that this constituted a crime of violence.
Unlike the IJ, the BIA determined that the record of conviction was unclear about whether Martinez committed assault with the intent to commit rape or whether he intended to commit one of the other listed offenses. Matter of Martinez, 25 I&N Dec. at 572. Ultimately this disagreement proved not to affect the outcome.
(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 BIA noted in a footnote, “For purposes of 18 U.S.C. § 16(a), the phrase ‘use of physical force’ means the use of violent force.” Matter of Martinez, 25 I&N Dec. at 573 n.1.
Analyzing subpart (a) of 18 U.S.C. § 16, the BIA concluded that California’s assault with intent to commit any of the enumerated felonies constitutes a crime of violence because a conviction requires lack of consent from the victim. That lack of consent means that there is always at least the threat of violent force even if no actual force is used.
In the Board’s words, “one who violatessection 220 must specifically intend to use whatever degree of physical force,including violent force, that might prove necessary to accomplish the objectoffense, thereby signaling to the victim that resistance will be met with violentcoercion.” As such, the BIA added,
every violation of section 220 has as an element at least the “attempted” or “threatened” use of such force against the victim, which are alternative elements to the actual use of force under § 16(a). Accordingly, we conclude that a violation of section 220 is categorically a “crime of violence” under 18 U.S.C. § 16(a).
Matter of Martinez, 25 I&N Dec. at 573.
The BIA then turned to the alternative definition of crime of violence found at 18 U.S.C. § 16(b). Citing to the analysis of § 16(b) used by the Supreme Court in Leocal v. Ashcroft, 543 U.S. 1, 10 (2004), the BIA explained that “[t]he substantial risk referred to in § 16(b) ‘relates not to the general conduct or to the possibility that harm will result from a person’s conduct, but to the risk that the use of physical force against another might be required in committing a crime.’” Matter of Martinez, 25 I&N Dec. at 573-74.
The Board then explained the proper scope of the offense to consider when determining whether the substantial risk requirement was met:
We do not rule out an offense simply because there exists a conceivable factual scenario in which the statute could be applied to conduct that would not constitute a crime of violence. See James v. United States, 550 U.S. 192, 208 (2007). Instead, we look to the risk of violent force that is present in the “ordinary” case arising under the statute of conviction.
Considering the “ordinary” case, the BIA concluded that when an assault is committed in the course of intending to commit one of the offenses listed in § 220, “there is always a ‘substantial risk’ that its consummation may involve the intentional use of violent physical force against the victim, either to accomplish the initial assault or to overcome the
victim’s will, or both.” Matter of Martinez, 25 I&N Dec. at 574.
Accordingly, Cal. Penal Code § 220 constitutes a crime of violence under 18 U.S.C. § 16(b) as well. Matter of Martinez, 25 I&N Dec. at 574.