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Second Circuit DWI Decision Prompts Strong Dissent
by Carl R. Baldwin

On August 3, 2001 the Second Circuit decided that a DWI offense was not an “aggravated felony” since not a “crime of violence.” Dalton v. INS, No. 00-4123. The decision by two judges prompted a strong dissent by the third.

The majority began by reciting the facts of the case: the petitioner was subject to removal as an alien convicted of an “aggravated felony” based on his New York State felony conviction for operating a motor vehicle while intoxicated (DWI). The immigration judge ordered removal, and the Board of Immigration Appeals affirmed. The question presented to the court was whether a felony DWI conviction constitutes a “crime of violence,” and hence an “aggravated felony.” Said the court: “We conclude that it does not and accordingly vacate the deportation order.”

Petitioner’s two previous DWI convictions within ten years had enhanced the most recent one to a class D felony, with a term from 1 ½ to 4 ½ years of imprisonment. That length of time put him beyond the “at least one year” baseline for an “aggravated felony,” provided that a crime of violence is involved. The court reviewed the statutory definition of “a crime of violence” as either:

An offense that has as an element the use, attempted use, or threatened use of force against the person or property of another, or 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 court proceeded to analyze the question of whether DWI constituted a crime of violence under “categorical analysis,” defined as “analysis based on the intrinsic nature of the offense, rather than the factual circumstances surrounding any particular violation.”

The court reviewed decisions by the New York Court of Appeals, including some in which the intoxicated person was neither driving nor preparing to drive, and concluded that the New York DWI statute did not require “risk of physical force.” It stated: “We are at a loss to see how this minimum threshold, even if met on three separate occasions, satisfies the statutory definition of an ‘aggravated felony’ or a ‘crime of violence.’” While expressing grave concern about the effects of drunk driving, the court held that it was up to legislatures, state and federal, to address the problem. It vacated the deportation order and remanded for further proceedings consistent with this opinion.

The majority consisted of Judges Oakes and Carter. The dissenter was Chief Judge Walker. He urged what he termed a common-sense approach to the question of whether DWI is a crime of violence. “I believe the categorical analysis suggested by the majority requires a broader, common-sense view, one that contemplates the risks associated with the proscribed conduct in the mainstream of prosecutions brought under the statute. After all, it surely was the risk of injury from the use of force upon innocent victims of drunk drivers on the road that animated the legislation in the first place.” The dissenting opinion concludes: “Since New York’s DWI statute requires multiple prior DWI convictions, the offense ‘by its nature’ involves a substantial risk that harmful force will be used. For the foregoing reasons, I respectfully dissent.”

Recent news reports suggest to this observer that drunk driving, “by its nature,” constitutes a threat of bodily injury and death, and it is upsetting that a highly respected circuit court holds otherwise.

The court’s opinion and dissent are at:,0730-Dalton.shtm

About The Author

Carl R. Baldwin graduated from Columbia University Law School in 1980, and became a member of the New York State Bar a year later. He worked for three years with the New York City Law Department, and then entered solo practice in immigration law, which he has continued to the present. His work with clients has included asylum applications, deportation defense, visa processing, adjustment of status, and naturalization. He has also worked to implement special laws, such as the 1986 "amnesty" (The Immigration Reform and Control Act), and the 1998 Haitian reform act (The Haitian Refugee Immigration Fairness Act). Mr. Baldwin is the author of Immigration News Monthly. He can be reached by e-mail at

He has written a book on immigration law, called "Immigration Questions and Answers," 1997, Allworth Press, 10 East 23rd Street, New York, NY 10010 (212) 777-8395. The book, which contains essential background information about how the immigration law works, can be ordered in both an English Edition and a Spanish version from