X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Lifting a deportation order for a Jamaican native who has lived in the United States for 25 years and has an American wife, a federal appeals court has ruled that vehicular homicide is not necessarily a “crime of violence.” In Francis v. Reno, a unanimous three-judge panel of the 3rd U.S. Circuit Court of Appeals overturned a decision by the Bureau of Immigration Appeals after rejecting the BIA’s finding that Robert Francis’ misdemeanor conviction qualified as an “aggravated felony” under federal law. In May 1993, Francis was driving while his license was suspended when police said he caused an eight-car accident on Route 95, causing two deaths. A jury convicted Francis on two counts of vehicular homicide, and he was sentenced to consecutive terms of 18 to 60 months in prison. When he had finished serving his time, Francis was held on a detainer by the Immigration and Naturalization Service. The INS then initiated deportation proceedings, alleging that Francis’ convictions made him removable as an “aggravated felon” under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). An immigration judge ruled in favor of Francis, but the INS appealed and the BIA reversed and ordered deportation. Now the 3rd Circuit has ruled that BIA erred by finding that Francis was guilty of “reckless” conduct since he was charged only with criminal negligence. “The BIA determined that Francis’ conduct was reckless. It may well have been. However, recklessness was not charged, and he was not convicted of an offense requiring that mens rea,” 3rd Circuit Judge Theodore A. McKee wrote in an opinion joined by Judges Anthony J. Scirica and Walter K. Stapleton. Instead, McKee said, Francis was charged only with “unintentional” conduct. In his 20-page opinion, McKee was forced to navigate the labyrinth of immigration laws that were designed to account for any alien resident’s encounters with the criminal courts in any state. Under IIRIRA, an alien can be deemed deportable for a conviction of one of the law’s “enumerated offenses.” In Francis’ case, INS said he had been convicted of an “aggravated felony,” which is defined in the law to include any “crime of violence.” McKee found that the immigration statute itself does not define the term “crime of violence,” but instead incorporates the definition from the U.S. Crimes Code. INS lawyers argued that Francis’ conviction met the second prong of the definition — “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.” Although misdemeanor convictions in state courts can be treated as felonies under federal law if they satisfy the federal definition, McKee found that Pennsylvania’s vehicular homicide statute does not satisfy the test. “Even if we assume … that Francis’ misdemeanor conviction of vehicular homicide can somehow be converted into a felony … we would still conclude that his conviction is not an ‘aggravated felony,’ ” McKee wrote. The federal definition of aggravated felony, McKee said, is a crime 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.” Francis’ crime doesn’t meet the definition, McKee said, because “homicide by vehicle in Pennsylvania is not such an offense.” Significantly, McKee rejected arguments by government lawyers who said BIA’s analysis of how to classify Francis’ crime was entitled to deference under the U.S. Supreme Court’s 1984 decision in Chevron v. Natural Resources Defense Council. “Pure questions of statutory construction must be resolved by courts,” McKee wrote. In its 1999 decision in Sandoval v. Reno, McKee said, the 3rd Circuit held that Chevron deference applies only to an inquiry “that implicates agency expertise in a meaningful way.” The legal analysis of Francis’ crime didn’t meet the Sandoval test, McKee said, because “clearly, the BIA did not rely upon any expertise in interpreting the meaning of ‘felony.’” McKee found that Chevron requires courts to accord deference to federal agencies only to the extent that the agency is asserting the “construction of the statute which it administers.” BIA does not administer the U.S. Crimes Code, McKee said, and those laws are not “transformed” into immigration law merely because they are incorporated into IIRIRA. Francis was represented in the appeal by attorney Stephan D. Converse of Anderson Converse in York, Pa. Justice Department attorney Gretchen M. Wolfinger argued the case for the government and was joined on the brief by Assistant Attorney General David W. Ogden, who heads the civil division; Linda S. Wendtland, the assistant director of the civil division; and immigration litigation attorneys Terri J. Scadron and Matthew R. Hall.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.