A Chicago immigration judge recently held that resisting law enforcement in violation of Indiana Code § 35-44-3 is not a crime of violence type of aggravated felony. Matter of —-, slip op. (Chicago Immigr. Ct. Dec. 3, 2012) (Fujimoto, IJ).
This case involved an LPR who was convicted and sentenced to 545 days imprisonment. According to the court, at the time of conviction the statute penalized “‘[a] person who knowingly or intentionally…flees from a law enforcement officer after the officer has, by visible or audible means, identified himself and ordered the person to stop’” and “‘the person uses a vehicle to commit the offense’” or “while committing the offense the person ‘operates a vehicle in a manner that creates a substantial risk of bodily injury to another person.’” Matter of —, slip op. at 2-3 (quoting Ind. Code § 35-44-3-3 (2004)).
The government argued that resisting law enforcement is a crime of violence under either prong: committed using a vehicle or committed while operating a vehicle in a manner that creates substantial risk of injury to another. Matter of —, slip op. at 3. The respondent argued that neither prong constitutes a COV.
For its part, the IJ noted that, according to the Supreme Court in Leocal v. Ashcroft, 543 U.S. 1, 10 n.7 (2004), not all offenses that involve a risk of injury to another person are crimes of violence. Matter of —, slip op. at 3. In Leocal, the Court held that driving under the influence was not a COV despite the fact that injury to another person is an obvious risk. The key, though, was that use or threatened use of force are not elements of DUI and DUI did not involve a substantial risk that force would be used while committing the offense. The focus, in other words, is on the elements of the offense or the magnitude of the risk that force will be used to commit the offense (only “substantial risk” that force will be used is enough); the concern is not whether substantial injury will result from committing the offense. Congress could have written the statute differently, but it didn’t.
Applying this reasoning to the Indiana resisting law enforcement offense, the IJ explained, “the risk that an accident may occur is simply not the same thing as the risk that the individual may use physical force against another in committing the offense of fleeing from law enforcement in a vehicle.” Matter of —, slip op. at 4.
Importantly, the court distinguished this situation from Sykes v. United States, 131 S. Ct. 2267 (2011), a case that DHS relied on and that involved the same Indiana offense at issue here. There the Court held that the Indiana crime was a “violent felony” for purposes of the Armed Career Criminal Act, a statute that uses language very similar to the COV language used by the INA. Though similar, the statutes are not identical. Unlike the INA’s definition of COV which requires a “substantial risk that physical force against the person or property of another may be used,” the ACCA penalizes “conduct that presents a serious potential risk of physical injury to another.” This distinction, the IJ concluded, was a fatal flaw in the government’s attempt to rely on Sykes. Matter of —, slip op. at 5.
Accordingly, the court concluded that Indiana’s resisting law enforcement offense, even when involving a vehicle, is not a crime of violence for immigration law purposes.
crImmigration.com was ranked among the 100 best law blogs of 2012 by the ABA Journal. Take a minute to vote for crImmigration.com as your favorite source of legal information by going to the ABA Journal’s web site and finding crImmigration.com listed in the “niche” category.