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BIA: RI solicitation to commit assault is crime of violence

The BIA held that a conviction for violating Rhode Island’s prohibition against criminal solicitation was a crime of violence where the crime solicited was assault. Matter of Guerrero, 25 I&N Dec. 631 (BIA 2011) (Pauley, Greer, and Mullane, Board members). Board member Pauley wrote the panel’s decision.

This case involved an LPR who was convicted of criminal solicitation, R.I. Gen. L. § 11-1-9, after pleading nolo contendere. The record of conviction explained that Guerrero was charged with solicitation to commit the crime of assault. Matter of Guerrero, 25 I&N Dec. at 631.

Several years ago, the U.S. Court of Appeals held that Rhode Island’s assault offense is a crime of violence “because it has as an element the ‘attempted use, or threatened use of physical force against the person or property of another.’” Lopes v. Keisler, 505 F.3d 58, 63 (1st Cir. 2007) (quoting 18 U.S.C. § 16(a)). The First Circuit relied on the first of two alternative definitions of crime of violence used for immigration, INA § 101(a)(43)(F), and criminal law purposes, 18 U.S.C. § 16(a). The second definition provides that “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” is a COV. 18 U.S.C. § 16(b).

Though the BIA discussed the First Circuit’s holding in Lopes, it ultimately rested its conclusion on § 16(b)’s “substantial risk” requirement. To convict someone of criminal solicitation, the BIA explained, “the State must show that the accused intended that the solicited crime, in this case assault with a dangerous weapon, would be committed.” Matter of Guerrero, 25 I&N Dec. at 635. Accordingly, “although the respondent’s solicitation offense ‘can be committed without the use of force and before any actual force is used, this does not diminish the substantial risk of violence that solicitation of . . . assault inherently presents.’” Matter of Guerrero, 25 I&N Dec. at 635.

In effect, the BIA, relying on the First Circuit’s holding that Rhode Island assault necessarily involves the use or threatened use of physical force, concluded that solicitation to commit assault necessarily involves a substantial risk that physical force would be used to actually perform the assault. As such, it concluded that Rhode Island solicitation to commit assault constitutes a crime of violence as defined by 18 U.S.C. § 16(b). Matter of Guerrero, 25 I&N Dec. at 636.

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