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The 2nd U.S. Circuit Court of Appeals has issued two decisions clarifying the standards for removal of non-citizens for crimes of violence, both going against the U.S. Department of Justice. In the first case, Jobson v. Ashcroft, 02-4019, the court vacated an order of removal for a New York man who had been convicted of second-degree manslaughter under New York law, finding that the charge was not a “crime of violence” within the meaning of the Immigration and Nationality Act. And in Chrzanoski v. Ashcroft, 02-2531, a separate panel considering an appeal from the denial of a petition for a writ of habeas corpus ruled that a conviction for third-degree intentional assault under Connecticut law is not a crime of violence under the immigration act. Both cases concerned the definition of an aggravated felon under � 16 of the act. The New York case involved Damaine Antonio Jobson, who was sentenced to serve two to six years in prison after pleading guilty in 1999 to second-degree manslaughter. Jobson caused the death of his infant son by shaking the crying baby. As a lawful permanent resident of the United States who immigrated from Jamaica in 1988, Jobson was eligible for deportation because the immigration judge determined he had committed an aggravated felony. After the Board of Immigration Appeals (BIA) dismissed his appeal of the removal order, Jobson turned to the 2nd Circuit. Writing for the court, Senior Circuit Judge Wilfred Feinberg said the “essential differences between the minimal criminal conduct that violates” the law and “the requirements of Section 16(b) make clear that the BIA erred in characterizing second-degree manslaughter under New York law as a crime of violence under section 16 (b).” The difference, Judge Feinberg said, is that risk of serious physical injury in the manslaughter law “concerns the likely effect of the defendant’s conduct,” but the risk outlined in � 16(b) “concerns the defendant’s likely use of violent force as a means to an end.” Noting that the offense “encompasses many situations” where the defendant applies no force and “more importantly, situations that do not involve any risk that the defendant will apply force,” such as driving while intoxicated or placing a child in an all-terrain vehicle without a helmet, Feinberg said the court could not find that second-degree manslaughter was categorically a crime of violence. “Second, we believe an unintentional accident caused by recklessness cannot properly be said to involve a substantial risk that defendant will use physical force,” he said. CONNECTICUT CASE The Connecticut case concerned the habeas petition of Jaroslaw Chrzanoski, a citizen of Poland and a lawful permanent resident of the United States who pleaded guilty to driving under the influence and interfering with a police officer in 1996. U.S. District Judge Dominic J. Squatrito in Connecticut denied the petition after determining that third-degree assault was a crime of violence and that Chrzanoski was therefore removable as an aggravated felon. 2nd Circuit Judge Robert Katzmann said the Immigration and Naturalization Service “committed a legal error” by ordering Chrzanoski removed based on the assumption that the statute automatically involved a crime of violence. “In sum, while there are undoubtedly many ways in which force could be used to commit third-degree assault under Connecticut law, the plain language of the statute does not make use of force an explicit or implicit element of the crime,” Katzmann said. “Rather, its language is broad enough to cover myriad other schemes, not involving force, whereby physical injury can be caused intentionally.” Judge Robert D. Sack and Judge John Garvan Murtha of the U.S. District Court of Vermont, sitting by designation, joined Judge Feinberg in the Jobson opinion. Matthew L. Guadagno, Alan Michael Strauss, Kerry William Bretz and Jules E. Coven of Bretz & Coven represented Jobson. Assistant U.S. Attorneys Megan L. Brackney, Kathy S. Marks and Gideon A. Schor represented the government. Judges Chester J. Straub and Reena Raggi joined Judge Katzmann in the Chrzanoski opinion. Katherine R. Goldstein and Paul A. Engelmayer of Wilmer, Cutler & Pickering, and Michael G. Moore of Springfield, Mass., represented Chrzanoski. Assistant U.S. Attorneys John B. Hughes and Jeffrey A. Meyer of the District of Connecticut represented the government.

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