Exam Answer KeyBLegislation Winter 2002


I.                    Preliminary questions.

A.                 Is D an alien?Yes, per 11-1(a)(3) (resident alien)

B.                 Was he convicted?Yes, facts say so, plus 1101(a)(48)


II.                 Was his conviction for an Aaggravated felony@ under 1227, making him deportable?

A.                 Was his offense a Acrime of violence@ under 1101(a)(43)(F), which in turn refers to

18 USC 16?

1.                  Was the DUI a felony?Yes, per ARS 28-697(D)

2.                  Was it committed during a covered time period?

S                    1227(a)(2)(A)(iii) applies to aggravated felonies committed at any

time after admission to the US. D is covered.

S                    but D=s felony conviction came before amendment of 1101(a)(43)

in 1996 (reducing required time of imprisonment from 5 yrs to

1 yr.). D clearly would not be covered under prior version.

1101(a)(43) operates retroactively by attaching new immigration

Consequences to the prior conviction, therefore is valid only if

There is a clear statement.

S                    text provides a clear statement of retroactive effect. It says it applies to Aactions taken@ on or after date of enactment regardless of date of conviction. AAction@ here is BIA decision, which occurred after date of enactment.

S                    In the same paragraph, Congress provided a different rule

(non-retroactive) for a different category of cases, showing that

Congress knew what it was doing and intended retroactive effect.


3.                  Was D imprisoned for Aat least one year@? (4 mo. sentence + 12 yrs. violation)

S                    state statute sets term at minimum of 4 months - not more than 1 year.

S                    imprisonment for probation violation is not part of sentence Aactually imposed with respect to the offense.@ State statute does not authorize punishment for Aat least one year@ for this offense.

S                    fact that fed. Statute refers to sentence Aactually imposed@ is irrelevant. Conf. Rpt. makes clear that intent was to make deportation provision apply even if all/part of sentence was suspended. Shows no intent to incorporate time served for probation violation. Conf. Rpt. is relevant and reliable and does not vary the statutory text.

S                    rule of lenity does not strictly apply because this is a civil case

(deportation), but policies behind the rule would suggest that this

statuteBif still ambiguousBshould be interpreted in favor of D.


4.                  Was his aggravated DUI a Acrime of violence@ under 18 USC 16(a)?

S                    no: the state DUI statute does not contain the required

elements of use, attempted use, or threatened use of force.

S                    Rutherford states that DUI does not meet 16(a) test. Case arose under USSG but language is identical to 16(a).


5.                  Was his DUI a Acrime of violence@ under 16(b)? BIA says yes. What

deference is due?

-Has Congress spoken unambiguously to the precise issue?


No. Statute is ambiguous re: imprisonment (above) and seems not

To apply to DUI in general, though literal reading could fit w/DUI.

BIA has authority to interpret immigration statutes.


- Is BIA=s interpretation reasonable?

16(b) requires that offense, Aby its nature, involve substantial risk

that physical force against the person or property of another will be

used in the course of committing the offense.@


Text: application to DUI is strained. DUI involved risk that harm will result, but not risk that force will be used. Here, there was no impact with person or property of another.

Text is strongest authority (actually passed, gives notice, etc.)


Dictionary definitions of Aforce@ involve at least a weak sense of intentional or volitional action, and also imply that there is an object. Here, both intent and impact on an object are lacking.


Definitions of Ause@ even more strongly suggest intent. No intent here.


Definitions of Aviolence@ make clear that DUI is not a Acrime of violence@ again because there is no intent to harm a person or property.


Mere risk of harm is not enough to convert all crimes into crimes of violence. Congress itself put burglary and theft in a separate category 1101(a)(43)(G), not within crimes of violence, though injury to person or property can certainly result from such crimes.


Textual canons: establish that DUI is not included because it is not like the other crimes listed.


Noscitur a sociis: DUI not like its neighbors.


Ejusdem generis: doesn=t exactly fit (no Aother@/@otherwise@ clause), but would suggest that DUI is not in the same category as crimes such as murder, drug trafficking, etc.


Expressio unius: a weak canon, but would suggest that because DUI is not mentioned, the proper inference is that Congress intentionally excluded it.


Intent: the evolution of 1101(a)(43) is towards inclusion of more crimes and lessening of the required punishment in order for a crime to lead to deportation.


But Congress clearly had crimes of a certain type in mindBsee Conf. Rpt. There is no evidence they considered DUI the type of Aserious@ crime they were trying to address. The court should not extend the statute.


Purpose: Conf. Rpt. shows eagerness to deport criminals who Adisregard@ our laws, especially those whose actions harm others. D=s repeated DUI convictions may show disregard for the law, but he hasn=t harmed anyone.


But the broad statement in Conf. Rpt. is not precisely relevant to the question whether DUI is included within the category of crimes leading to deportation. This statement cannot be used to vary the text actually enacted, which makes no mention of DUI.


Many judges are becoming reluctant to rely on legislative history (manipulable, not enacted, undoes the compromise, etc.)


Related Provisions:section13981 (VAWA) uses a different phrase: Aserious risk of physical injury to another.@ This test clearly looks at potential result, not intent. DUI might meet this standard, but it is not the standard Congress used in the deportation statute.


Different text suggests different interpretation.


Statutes are not in pari materiaBthey occur in very different contexts. They are independent enactments (pari passu); no need to make them mean the same thing.


USSG 4B1.2 also uses different language from 16(b) (uses same language as 13981 above). Again, focuses on result, not intent.


Not in pari material (USSG 4B1.2 and 16(b))


USSG is lesser authority than statute, and enacted by different bodyBno real influence over what the statute means.


1101(a)(43) was added in 1988, after adoption of USSG in 1987. Congress had both the USSG model and 18 USC 16 (enacted 1984) available to it, and deliberately chose the latter standard for deportation cases. The fact that Congress later chose to use the USSG version in 13981 is irrelevant to interpretation of the deportation statute.


Precedent: Rutherford (13th C) holds that DUI IS a crime of violence, but case is not controlling because it arises under USSG 4B1.2, not under 18 USC 16, and the wording of USSG is different (see above).


Case is distinguishable on facts (injury)


Court focused on risk that injury would resultBthe test under the USSG. DUI seems to fit this test, but that doesn't mean that DUI, by its nature, involves a substantial risk that force will be used during commission of the crime.


Court clearly thinks the result is wrong but feels bound by the plain text of USSG.


Sweetser (BIA) holds that child neglect resulting in death IS NOT a crime of violence under 16(b). Case is not binding on court of appeals but should have dictated BIA=s result, and should persuade court of appeals.


The Aby its nature@ language requires application of Acategorical@ approach, looking to specifics of state statute + facts of conviction. ARS 28-697 requires only the act of driving under the influence during a period when the license is revoked for prior DUI. No element of force or violence is necessary for conviction. Therefore, it cannot be said that this offense, by its nature, involves a substantial risk that force will be used.


Best answer: DUI, however serious, is simply not a Acrime of violence.@ It is reckless and dangerous, but involves neither violence nor intentional use of force. The whole point is that the driver=s judgment is impaired, and that he ignores great risks by driving in that condition, not that he intends harm.


Though rule of lenity does not really apply, its policy suggests it would be unfair to subject D to severe immigration consequences of which the statute gives no real notice.


Congress recognized the need to balance desire to deport criminals against other important immigration policies and general legal norms.


S                    other (non-Chevron) factors:


BIA has expertise


BIA interpretations are Aauthoritative@


But its interpretation in this case lacks power to persuade (Skidmore)

S                    result seems contrary to Sweetser (there, death but no deportation; here, no death or injury but deportation). Deportation policy (BIA=s charge) should be more rational/fair than that.

S                    BIA opinion in D=s case mixes up risk of resulting harm with risk that force will be used. The two standards are not the same. Congress chose the latter standard in this context, and the BIA may not substitute the former (similar to Cardoza-Fonseca).