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A crime of violence: Malum in Magallanes
by Daniel M. Kowalski

Deported for life because of an old DUI? It's happening now all across the country, due to the incremental effects of changes to our immigration laws over the past 10 years. The recent evolution of immigration law -- which is largely civil, administrative, regulatory law -- should give all federal lawyers pause.

A criminal record has always been problematic for aliens (noncitizens): it can bar an alien from entry, and it can cause an alien to be deported. But our immigration laws have usually contained humanitarian waivers, have usually been prospective in nature, and have been subject to judicial review. Not so any longer.

In 1988, Congress added the term "aggravated felony" to the list of reasons why an alien may be barred from entry to, or deported from, the United States. At first the definition of the term was quite limited, including murder, rape and arms trafficking. Over the past 10 years, however, the definition has been amended again and again, resulting in a definition with well over 20 sub-categories of offenses now deemed to be "aggravated felonies." (8 U.S.C. § 1101(a)(43).)

One of the subcategories now is a "crime of violence" for which the sentence is at least one year. The term "crime of violence," in turn, is defined by another federal statute, 18 U.S.C. § 16, 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." (Emphasis added.)

In 1994 the Board of Immigration Appeals (BIA) decided to take a "categorical approach" with respect to § 16(b); that is, the board will not look at the underlying facts and circumstances of what actually happened in any given case, but will only look at the "nature" of the offense to determine whether the crime has "the potential of resulting in harm," irrespective of whether a risk of harm develops or harm actually occurs. Matter of Alcantar, 20 I&N Dec. 801, 809 (BIA 1994).

Applying the "categorical approach" in Alcantar's case, the Board held that Alcantar's Illinois state court conviction for involuntary manslaughter (plea bargained down from a first degree murder charge), for which he was sentenced to 10 years imprisonment, triggered the "crime of violence" definition under § 16(b). Thus far, nothing surprising about the board's reasoning or holding. And from a layperson's point of view, a logical and just result: Alcantar was charged with killing a person by striking her with his fists. In Alcantar's case, the labels "crime of violence" and "aggravated felony" don't seem jarring at all.

But then came Magallanes-Garcia, and the "crime of violence" now seems to be against the English language. The facts are sketchy (but then, under the "categorical approach," facts don't matter much); we are told that in 1995 Magallanes-Garcia was convicted in Arizona for an aggravated DUI and sentenced to four months' imprisonment, plus five years on probation. Later that same year, Magallanes-Garcia violated his probation by again driving while impaired; under Arizona law, his probation was revoked and he was sentenced to two and one-half years in prison for "felony aggravated driving."

Magallanes-Garcia had been a legal permanent resident ("green card" holder) since 1989. While incarcerated and serving his sentence, he was given a deportation hearing and was ordered deported as one who had been convicted of a "crime of violence/aggravated felony." On appeal, the BIA affirmed the deportation order and made his case a precedent (published, binding) decision, Matter of Magallanes-Garcia, Interim Decision 3341 (BIA 1998). (Immigration lawyers simply refer to it as "Magallanes.")

As a result of the Magallanes decision, the INS initiated "Operation Last Call," under which long-time permanent residents with old DUI convictions were targeted for deportation, mostly in Texas. These efforts are now being challenged in the Fifth Circuit Court of Appeals, but in the meantime scores of permanent residents have been summarily deported, and others languish in INS detention without bond while their cases are pending.

The board took a wrong turn in Magallanes for two reasons, one linguistical and one political. In terms of language, the board erred by conflating "force" with "harm." Physical "force," at least in the textbook Physics 101 sense, is defined as "mass times acceleration." Using that definition of "force," a vast number of crimes can be labeled "crimes of violence." For example, if I shoplift a can of beans from a convenience store, I exert force, muscular effort, however slight, against the property of the store owner in lifting the can of beans off the shelf and hiding it in my coat. I may have caused economic harm to the store owner, but no physical injury in the sense contemplated by the board in Alcantar and Magallanes. Under the Alcantar test, however, I have committed a "crime of violence," and an "aggravated felony" in those states in which certain misdemeanor theft crimes carry a penalty of up to one year in jail.

On the political front, the board surfed the 1996 congressional wave of xenophobia which brought us the Anti-Terrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) (bills which contain serious attacks on due process, separation of powers and judicial review) and capitalized on everyone's righteous revulsion against the death and destruction caused by drunk drivers. In a key footnote, the board in Magallanes characterized drunk driving "not merely as malum prohibitum, but as malum in se." Magallanes, Slip Op. at 6. Thus, drunk driving, "by its nature," is inherently evil, and must be punished most severely.

Yet many defense lawyers and even a few courageous immigration judges are pointing out to the board that under many state statutory schemes, a person may suffer a felony DUI conviction for sleeping drunk in a vehicle with the engine running, or even for turning the ignition to the "on" position while drunk, even though the engine never starts. In these and many other factual scenarios, no harm to the driver or anyone else is even possible, much less likely. Such are the linguistic and political issues now before the Fifth Circuit, and other federal courts.

But I mentioned earlier that immigration law is no longer prospective in nature and that judicial review of agency decisions has been threatened. In fact, the BIA has recently ruled that the definition of "aggravated felony" may be applied retroactively, that is, to crimes which were committed well before the term was coined in 1988. And the AEDPA and the IIRAIRA contain severe restrictions on judicial review of BIA decisions. To cap things off, the new laws have largely eliminated the humanitarian waivers sparingly used to give long-time permanent residents a "second chance" after a criminal conviction, and they also restrict or eliminate the possibility of release on bond from immigration detention during the course of administrative deportation (now called "removal") hearings.

The net result is that any legal permanent resident alien, brought to the United States by his parents as an infant in, for example, 1940, who is now a parent, worker and taxpayer himself and who commits his first and only criminal offense in 1980, may be subject in 1998 to detention without bond, an administrative hearing without judicial review, and permanent deportation without relief. As federal lawyers -- and as citizens, voters and taxpayers -- we must ask ourselves if this is how we want our immigration laws to work.

Daniel M. Kowalski is a member of the editorial board and practices immigration law in Seattle at the firm of Ryan, Swanson & Cleveland, PLLC. He is the editor in chief of Bender's Immigration Bulletin, published by Matthew-Bender & Co. Inc., New York.


This article originally appeared in The Federal Lawyer, Vol. 46, No. 1. Used with permission.