In a published opinion, the Board of Immigration Appeals held that a conviction for interfering with the operation of an aircraft is not a crime of violence, but it is a removable “public safety” offense. Matter of Tavarez Peralta, 26 I&N Dec. 171 (BIA 2013) (Pauley, Mullane, and Hoffman, Board Members). Board Member Mullane wrote the panel’s opinion. This case received the rare oral argument before the BIA.
Tavarez Peralta, an LPR, was convicted of violating 18 USC § 32(a)(5) which prohibits “interfer[ing] with or disabl[ing], with intent to endanger the safety of any person or with a reckless disregard for the safety of human life, anyone engaged in the authorized operation of such aircraft or any air navigation facility aiding in the navigation of any such aircraft” by pointing a laser at a Philadelphia Police Department helicopter and hitting the pilot’s eyes. Matter of Tavarez Peralta, 26 I&N Dec. at 172.
The immigration judge concluded that this was not a crime of violence type of aggravated felony, INA § 101(a)(43)(F), and the BIA agreed. A crime of violence is statutorily defined as
(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.
According to the Board, Tavarez Peralta’s conviction does not meet subsection (a)’s definition because “it does not necessarily involve ‘the use, attempted use, or threatened use of physical force.’” Matter of Tavarez Peralta, 26 I&N Dec. at 177.
To constitute a crime of violence under § 16(b), an offense must “by its nature, raise a substantial risk that force may be used.” Matter of Tavarez Peralta, 26 I&N Dec. at 178. Importantly, “the type of force contemplated is violent force, not merely any force as that term might be defined under the laws of physics.” Matter of Tavarez Peralta, 26 I&N Dec. at 178. Though there was no question in the Board’s mind that Tavarez Peralta sought to hit the pilot’s eyes with the laser, the Board was “not convinced…that the act of shining a laser beam at the pilot was an application of the kind of physical force necessary for a crime of violence.” Matter of Tavarez Peralta, 26 I&N Dec. at 178. As such, the Board concluded that this was not a crime of violence.
In contrast, the Board disagreed with the IJ’s assessment that Tavarez Peralta had not been convicted of a “public safety” offense under INA § 237(a)(4)(A)(ii) which renders removable a person who “engages” in “criminal activity which endangers public safety or national security.” This provision does not require a conviction. Matter of Tavarez Peralta, 26 I&N Dec. at 174.
Because the Board had never addressed this provision in a published opinion and because the INA doesn’t define “public safety,” the panel first set out to define this phrase. It does not, the Board explained, “cover typical single-victim crimes” no matter how heinous. Matter of Tavarez Peralta, 26 I&N Dec. at 174. Instead, the BIA held that “the phrase ‘criminal activity which endangers public safety’ is limited to those situations where the public at large is endangered.” Matter of Tavarez Peralta, 26 I&N Dec. at 174.
Applying a totality of the circumstances test, the court then concluded that Tavarez Peralta’s “crime squarely falls within the scope of section 237(a)(4)(A)(ii) because a helicopter crash over a large city like Philadelphia would put many lives at risk and would thus endanger the public safety.” Matter of Tavarez Peralta, 26 I&N Dec. at 175. As such, the Board concluded that Tavarez Peralta was removable.