NOTES. Felony Drinking and Driving Convictions as Crimes of Violence Under 18 U.S.C. 16(b): What the Words Really Mean for Aliens

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1 NOTES Felony Drinking and Driving Convictions as Crimes of Violence Under 18 U.S.C. 16(b): What the Words Really Mean for Aliens I. INTRODUCTION Over the past decade, the United States Congress has enacted a number of new laws that affect the immigration system and those who are part of it. 1 These new laws have expanded the basis for removal, 2 causing aliens who might have spent their entire lives in the United States to be faced with mandatory removal, leaving their family and friends in the United States. 3 This Note focuses on the removal of aliens for drinking and driving convictions, and the reasons why courts should not hold a Driving While Intoxicated (DWI) 4 conviction by an alien to be a crime of violence, and 1. See Immigration Act of 1990, Pub. L. No (a), 104 Stat. 4978, 5048 (1990); Immigration and Nationality Technical Corrections Act of 1994 (INTCA), Pub. L. No , 222, 108 Stat. 4305, 4320 (1994); Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No , 440, 110 Stat. 1214, 1277 (1996); Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No , 321, 110 Stat , (1996). 2. See Gail Pendleton, Removal Proceedings, in NATIONAL LAWYERS GUILD, STRATEGY AND PRACTICE UNDER THE NEW IMMIGRATION LAWS, 13, 13 (1996). With the enactment of IIRIRA in 1996, deportation and exclusion proceedings were consolidated into one removal proceeding. See id. 3. See Lory D. Rosenberg & Nelson A. Vargas-Padilla, Immigration Consequences of Crimes: Current Administrative Decisions Affecting Criminal Aliens, 75 INTERPRETER RELEASES 793, (1998). See also Lory D. Rosenberg & Nelson A. Vargas-Padilla, Immigration Consequences of Crimes in the 1990s: An Update on Current Administrative Decisions Affecting Criminal Aliens, 76 INTERPRETER RELEASES 837, (1999); Lory D. Rosenberg & Nelson Vargas-Padilla, Immigration Consequences of Crimes on the Doorstep of the Twenty-First Century, 77 INTERPRETER RELEASES 685, (2000); Lea McDermid, Comment: Deportation is Different: Noncitizens and Ineffective Assistance of Counsel, 89 CAL. L. REV. 741, (2001). 4. Throughout this Note, Driving While Intoxicated (DWI) will be used to refer generally to all drinking and driving offenses, although state drinking and driving offenses 395

2 396 NEW ENGLAND LAW REVIEW [Vol. 37:2 thus not an aggravated felony; thereby allowing aliens convicted of a DWI to remain in the United States. Part II of this Note provides background information on who is considered an alien, the basics of the immigration system, and the applicable statutes that govern removal. Part III discusses the string of recent cases dealing with the removal of aliens for DWI convictions. Part IV demonstrates that the majority of the circuit courts have been correct in holding that a felony DWI conviction is not a crime of violence, and therefore, that aliens should not be subjected to removal proceedings for these convictions. Part V applies the reasoning of the circuit courts, as well as the most recent Board of Immigration Appeals (BIA) decision, to state DWI statutes in order to explore what future circuits may and should hold on the issue. II. BACKGROUND A. Aliens Under United States Law and the United States Constitution An alien is any person who is not a citizen 5 or [a] national 6 of the United States. 7 [T]here are four broad classes of aliens: (1) persons seeking admission to the United States; (2) persons admitted permanently as immigrants (also called permanent residents or green card holders); (3) persons admitted temporarily as non-immigrants; and (4) undocumented persons or illegal aliens who are here without permission from the federal government. 8 are not always referred to as a DWI. See discussion infra Part IV.B. 5. A citizen is (1) a person[] born in the United States or in certain territories; (2) a person[] born outside the United States if one or both parents are American citizens and the child and/or parent meets certain residency requirements; or (3) a person[] born in possessions of the United States or in foreign countries who is then naturalized as a citizen of the United States. DAVID CARLINER ET AL., THE RIGHTS OF ALIENS AND REFUGEES: THE BASIC ACLU GUIDE TO ALIEN AND REFUGEE RIGHTS 1 (2d ed. 1990). 6. Naturalized citizens are [p]ersons born as aliens who acquire citizenship under laws enacted by Congress. Id. Nationals, as referred to in the Immigration and Nationality Act, are persons who owe permanent allegiance to a state. Immigration and Nationality Act of 1952, ch. 477, Pub. L. No , 101 (a)(21), 66 Stat The term national of the United States means (A) a citizen of the United States, or (B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States. Id. 101 (a)(22) U.S.C. 1101(a)(3) (2001). 8. STEPHEN W. YALE-LOEHR, BASIC IMMIGRATION LAW 13 (2001). The term alien is used in the broadest sense, so as to encompass all classifications of aliens, since under the statutes being analyzed, no difference is made as to whether the person is a legal or illegal

3 2003] FELONY DWI CONVICTIONS UNDER 18 U.S.C 16(b) 397 Even though aliens are not citizens of the United States, once they gain entrance they are subject to the laws of the United States and are also afforded some protection by the United States Constitution. 9 Protection is only extended to aliens under certain provisions of the United States Constitution, which use the term persons rather than citizens. 10 This limits the amount of protection that aliens are afforded. Even though aliens are legally admitted to the United States and have some protection under the Constitution and laws, this does not mean they are exempt from removal. 11 Aliens, of any of the four classes, do not possess any constitutional right to stay in the United States, thus they are removable any time after admission. 12 In order to determine who is admitted and when, as well as who is removed and why, the federal government established an immigration system and laws. B. Immigration System The enforcement of immigration laws is the responsibility of the United States Attorney General. However, much of this responsibility has been delegated to the Department of Justice. 13 Under the Department of Justice there are two important branches that deal with immigration: the Immigration and Naturalization Service (INS) and the Executive Offices of Immigration Review (EOIR). 14 The INS is the agency that is responsible for enforcing immigration laws and regulations and administering immigration-related services. 15 The INS consists of four regional offices and thirty-four district offices, which are alien, or even whether the alien is a permanent resident. See MARGARET C. JASPER, THE LAW OF IMMIGRATION 58 (2d ed. 2000); 8 U.S.C. 1227(a)(2)(A)(iii) (2001). 9. See YALE-LOEHR, supra note 8, at See JASPER, supra note 8, at 20. The United States Constitution makes reference to both citizens and persons, sometimes in the same provision, as is the case in the Fourteenth Amendment. See U.S. CONST. amend. XIV. See also Plyler v. Doe, 457 U.S. 202, 210 (1982) (indicating aliens recognized as persons are guaranteed due process of law by the Fifth and Fourteenth Amendments ). 11. See JASPER, supra note 8, at See YALE-LOEHR, supra note 8, at See id. 14. See id. 15. See IMMIGRATION AND NATURALIZATION SERVICE, This is INS Overview at overview.htm (last visited Feb. 14, 2003). The enforcement aspect includes: [b]order control, [p]ort-of-entry inspections, [d]etention and removal of criminal aliens, [w]orksite enforcement, [a]pprehension of illegal aliens and workers, [d]eportations and exclusions [removal], [d]enial of benefits to ineligible applicants, [and] [d]ocument fraud. Id. The administration aspect includes [i]mmigrant and non-immigrant sponsorship, [a]djustment of status, [w]ork authorization and other permits, [n]aturalization, [and] [r]efugees and asylum. Id.

4 398 NEW ENGLAND LAW REVIEW [Vol. 37:2 the working units of the INS. 16 The EOIR contains two separate subdivisions: Immigration Judges and the Board of Immigration Appeals (BIA). 17 Under the EOIR, removal hearings are the main responsibility of the immigration judges, while the BIA acts as the administrative appeals body for these decisions. 18 The BIA is separate and independent from the INS, and directly accountable to the Attorney General. 19 The BIA is empowered to make a de novo review of the record, thus the BIA makes its own findings as to the legal sufficiency of the evidence. 20 Decisions rendered by the BIA do not hold any precedential value unless the Board designates so. 21 Since the BIA has nationwide jurisdiction, all precedential [d]ecisions of the Board are binding on all INS officers and immigration judges unless modified or overruled by the Attorney General or a federal court. 22 C. Removal Procedure for Aggravated Felonies The Applicable Statutes Immigration judges, in considering removal decisions, and the BIA, in their review of such orders, are governed by the immigration laws. 23 This Note will next examine how the term aggravated felony developed with respect to the applicable immigration laws. The notion of an aggravated felony was first developed in the Anti-Drug Abuse Act of Ironically, [t]he term aggravated felony is an immigration law concept, not a criminal law concept. 25 It was not until the 16. YALE-LOEHR, supra note 8, at 13. The district offices decide matters such as extension of stay, requests for permission to work, and applications for adjustment of status. See id. 17. See id. 18. See id. The BIA is the highest administrative body for interpreting and applying immigration laws. Board of Immigration Appeals Information at eoir/biainfo.htm (last visited Jan. 25, 2002) [hereinafter BIA Information]. 19. YALE-LOEHR, supra note 8, at JASPER, supra note 8, at 67. The BIA is directed to exercise its independent judgment in hearing appeals. BIA Information, supra note 18. While making its decision the BIA applies the law that exists at the time of review. See JASPER, supra note 8, at See YALE-LOEHR, supra note 8, at 13. Therefore, the only binding decisions made by the BIA are those that the Board itself decides to publish. See id. 22. BIA Information, supra note See id. 24. Anti-Drug Abuse Act of 1988, Pub. L. No , 7342, 102 Stat. 4181, 4469 (1988). See also JAMES G. CONNELL, III & RENE L. VALLADARES, CULTURAL ISSUES IN CRIMINAL DEFENSE 11.5[a] (2000). The Act included murder, drug trafficking, and trafficking in firearms or destructive devices. Id. 25. CONNELL, supra note 24, 11.5[a].

5 2003] FELONY DWI CONVICTIONS UNDER 18 U.S.C 16(b) 399 passage of the Immigration Act of 1990, 26 however, that a conviction for a crime of violence was included under the definition of an aggravated felony. 27 From 1994 through 1996, three laws were passed that significantly expanded the definition of an aggravated felony. 28 As the term aggravated felony expanded, it became clear that a conviction for an aggravated felony would subject aliens to the harshest immigration consequences at the time of the conviction and for the rest of their lives. 29 Currently, 8 U.S.C governs classes of removable aliens. 30 An aggravated felony is defined in 8 U.S.C. 1101(a)(43)(F) as a crime of violence (as defined in section 16 of title 18, but not including a purely political offense) for which the term of imprisonment [is] at least one year U.S.C. 16 defines a crime of violence 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. 32 The removal procedure is put in motion after the alien has been convicted of a crime that the INS or the EOIR classifies as an aggravated felony. 33 The Attorney General, and in turn the INS, has broad discretion in 26. Immigration Act of 1990, Pub. L. No (a), 104 Stat. 4978, 5048 (1990). 27. See CONNELL, supra note 24, 11.5[a]. 28. See id. Laws that have expanded grounds for removal include: the Immigration and Nationality Technical Corrections Act of 1994 (INTCA), Pub. L. No , 222, 108 Stat. 4305, 4320 (1994); the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No , 440, 110 Stat. 1214, 1277 (1996); and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No , 321, 110 Stat , (1996). 29. CONNELL, supra note 24, 11.5[a]. 30. See 8 U.S.C (2000). Any alien who is convicted of an aggravated felony at any time after admission is deportable. Id. 1227(a)(2)(A)(iii). 31. Id. 1101(a)(43)(F). Under the current law, the definition of an aggravated felony is applied to all offenses, regardless of whether they violate state or federal law. See CONNELL, supra note 24, 11.5[b] U.S.C. 16 (2000). The term by its nature refers to the statutory definition of the crime rather than the particular circumstances under which this particular defendant committed this charged crime. CONNELL, supra note 24, 11.5[b] n.81. Thus, the question is whether the elements of the offense of conviction involve violence, or the potential for violence, not what occurred in an individual client s case. Id. 33. See YALE-LOEHR, supra note 8, at 93. If an alien had a previous (pre-1996) conviction for which she had already served time, she may still be subject to the removal process if the crime for which she was convicted falls within the definition of an aggravated

6 400 NEW ENGLAND LAW REVIEW [Vol. 37:2 deciding whether and when to pursue a removal proceeding against an alien, and it is within the Attorney General s or INS s discretion to refrain from instituting proceedings even though grounds for commencing such a proceeding exist. 34 If the immigration judge orders removal, 35 the alien must seek review by the BIA before the alien can seek judicial review. 36 There are significant limitations on when an alien can appeal to the federal court system from a BIA decision. 37 Federal courts do not have jurisdiction over removal orders that are based on aggravated felony convictions. 38 However, there are instances in which a court of appeals may hear removal cases even though they are based on aggravated felony convictions. 39 In these cases, the court of appeals only retains jurisdiction in order to determine whether they do or do not have jurisdiction; thus the courts also decide the merits of the case, because, when an alien is convicted of an aggravated felony under 8 U.S.C. 1227(a)(2)(iii), 40 the question of jurisdiction and the merits collapse into one: the jurisdiction question is based upon the merits. 41 Additionally, the federal courts of appeal may also retain jurisdiction in an aggravated felony case if the alien has been convicted, is removed, re-enters the country illegally, and is then prosecuted for illegal re-entry. 42 A conviction for an aggravated felony at any time in an alien s life is detrimental to their ability to remain in the United States, since a conviction for an aggravated felony any time after entry into the United States can felony, even though it was committed before the new laws were enacted. See Nancy Morawetz, Symposium: Understanding the Impact of the 1996 Deportation Laws and the Limited Scope of Proposed Reforms, 113 HARV. L. REV. 1936, 1937 (2000). 34. See Sousa v. Reno, 135 F. Supp. 2d 75, (D. Mass. 2001). 35. In order for the alien to be removed, the INS must prove by clear and convincing evidence that the alien is removable. See YALE-LOEHR, supra note 8, at See JASPER, supra note 8, at See 8 U.S.C (2000). 38. See id. 1252(a)(2)(C). Notwithstanding any other provision of law, no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in 8 U.S.C. 1227(a)(2)(A)(iii). Id. 39. See Dalton v. Ashcroft, 257 F.3d 200, 203 (2d Cir. 2001). See also Bazan-Reyes v. INS, 256 F.3d 600, 604 (7th Cir. 2001). 40. See 1227(a)(2)(A)(iii); 1101(43)(F). See also supra notes and accompanying text. 41. See Bazan-Reyes, 256 F.3d at See United States v. Trinidad-Aquino, 259 F.3d 1140, 1142 (9th Cir. 2001). See also United States v. Chapa-Garza, 243 F.3d 921, 923 (5th Cir. 2001). In these instances the original conviction, which was for an aggravated felony, becomes an issue because the penalty for illegal re-entry is increased by sixteen levels. See id. at 923. See also Trinidad- Aquino, 259 F.3d at 1140; U.S. SENTENCING GUIDELINES MANUAL 2L1.2(b)(1)(C) (2002).

7 2003] FELONY DWI CONVICTIONS UNDER 18 U.S.C 16(b) 401 place that person in danger of being removed. 43 With a conviction for an aggravated felony comes a string of other problems: the conviction is a bar to political asylum, it precludes an alien from being eligible for re-entry for the next twenty years, it substantially increases any future penalties for reentry after removal, and it bars all aliens even those who are lawful permanent residents that have lived in the United States their entire lives from cancellation of removal. 44 As has been shown, the effects of a conviction for an aggravated felony can bring numerous problems to an alien who is attempting to remain or return to the United States. This leads to the question of why Congress has enacted such harsh laws and penalties for those convicted of certain crimes. D. Why Removal A conviction for a crime classified as a crime of violence is also deemed an aggravated felony for which an alien can be removed, and since removal is a dreadful punishment, abandoned by the common consent of all civilized peoples, 45 an examination of Congress authority to remove aliens is warranted. The Constitution does not expressly give Congress the authority to remove aliens; but rather, the Supreme Court has implied this authority from both the power to regulate foreign commerce and the assumed inherent power of sovereignty. 46 The Supreme Court has repeatedly sustained Congress authority to remove aliens. 47 The Court has justified this power as being inherent in our nation s sovereignty. 48 While there are constitutional grounds for challenging removal, none of the courts have agreed with any of the reasons presented to them thus far. 49 In 43. See CONNELL, supra note 24, 11.5[d]. This means that any non-u.s. citizen who has ever been convicted of a crime that is now defined as an aggravated felony can be removed. See id. See also supra note 33 and accompanying text. 44. See CONNELL, supra note 24, 11.5[d]. Cancellation of removal is a discretionary general waiver of deportability. Id. 11.6[a]. It is available to permanent residents (but not those who have committed an aggravated felony) who have seven consecutive years of lawful unrelinquished domicile in the United States, at least five of which were as a lawful permanent resident. See id. 11.6[a]. It can also be available to a non-permanent resident if he or she is able to meet certain criteria. See id. 45. Klonis v. Davis, 13 F.2d 630, 630 (2d Cir. 1926) (referring to how deplorable it would be to deport an alien who knows no other language, no other people, no other habits. However heinous his crimes, deportation is to him exile. ) 46. CARLINER, supra note 5, at 102. See also Fong Yue Ting v. United States, 149 U.S. 698, (1892) (discussing the power to remove aliens). 47. See YALE-LOEHR, supra note 8, at Id. 49. See Lieggi v. INS, 389 F. Supp. 12, (7th Cir. 1976) (discussing the uncertainty of constitutional protections afforded to aliens).

8 402 NEW ENGLAND LAW REVIEW [Vol. 37:2 rejecting constitutional challenges to Congress s removal authority, the courts have held that removal is a civil sanction rather than a criminal one so as to preclude certain constitutional claims. 50 Even though Congress has the power to remove aliens, it is still a severe form of punishment that should carefully be weighed. Deportation is a drastic measure and at times the equivalent of banishment or exile. It is the forfeiture for misconduct of a residence in this country. Such a forfeiture is a penalty. 51 Additionally, the purpose behind removal is an important consideration. If the purpose of removal is to rid the country of wrongdoers, the INS records prove that removal has not been effective and removal does not justify the cost or impact upon aliens and their families. 52 This is especially true in instances where the reason an alien is removed would result in a substantially less dramatic punishment for a United States citizen. 53 The number of aliens removed has been increasing over the years as the grounds for removal have expanded. 54 The number of alien defendants prosecuted in 1999 went up twenty-six percent from The number of convictions also increased, so that in 1999, forty percent of those prosecuted were convicted. 56 Additionally, in 1999, more than 69,000 aliens were removed due to criminal convictions. 57 Through the Institutional Reform Program, the INS has ensured that incarcerated criminals are placed in removal proceedings. 58 Therefore, with Congress numerous additions to the aggravated felony list, the stiffening of penalties, and the diminished availability of review by the federal courts, the INS has 50. See YALE-LOEHR, supra note 8, at Dalton v. Ashcroft, 257 F.3d 200, 208 (2d Cir. 2001) (citing Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948)). 52. See CARLINER, supra note 5, at 3. The purposes of removal are to protect the integrity of the admissions process, penalize aliens who commit certain crimes, and to target aliens who become public charges within five years of entering the United States. See YALE- LOEHR, supra note 8, at See McDermid, supra note 3, at 758. For example, a DWI conviction often yields no more than a slap on the wrist for wealthy white United States citizens, yet for noncitizens such a conviction may mean removal and exclusion from the United States. Id. 54. See supra note 28 and accompanying text. For example, Congress amended the sentence requirement for an aggravated felony by reducing the number of years of the imposed sentence from five years to only one year. See McDermid, supra note 3, at 757. There are six broad categories for removal. See 8 U.S.C (2001). 55. See Statistical Yearbook of the Immigration and Naturalization Service, Fiscal Year 1999 Statistical Yearbook, INS Statistical Reports, at graphics/aboutins/statistics/99enfsect.htm (last visited Jan. 15, 2003). 56. See id. 57. See id. 58. See id.

9 2003] FELONY DWI CONVICTIONS UNDER 18 U.S.C 16(b) 403 made removal a certainty for a number of aliens. Unfortunately, due to the pressures placed upon prosecutors to have criminal aliens removed, 59 the INS has been successful in removing many aliens due to felony DWI convictions. 60 The BIA s original interpretation of 18 U.S.C. 16(b) and how it applies to felony DWI convictions received a fair amount of criticism as the issue made its way to the circuit courts, leading to the BIA s re-interpretation of 16(b). 61 III. RECENT DECISIONS A split in the circuit courts has developed as courts have tried to determine whether a DWI conviction should be considered a crime of violence. The majority of jurisdictions that have decided the issue have held that a DWI conviction does not constitute a crime of violence. 62 Yet, two circuits have held that a DWI conviction is a crime of violence. 63 Additionally, a few courts have not yet ruled on this specific issue, but have alluded to it in similar cases. 64 Moreover, the reasoning behind the circuit 59. See Morawetz, supra note 33, at For example, in Atlanta the INS began to train local district attorneys to seek criminal dispositions in cases involving aliens, and encouraged prosecutors to seek one year suspended sentences, which would lead to mandatory removal. See Atlanta INS District Office Instructs Prosecutors on Removal of Illegal Aliens at (last visited Feb. 14, 2003) (letter from the Atlanta INS district office to all district attorneys and U.S. attorneys in Georgia). Similarly, in 1998 a local enforcement initiative in Texas led to the arrest of five hundred legal permanent residents with old DWI convictions. See Morawetz, supra note 33, at 1949; How Dry I Am INS Goes After Drunk Driver Aliens, at usvisanews.com/memo227.html (last visited Feb. 14, 2003). 60. See Morawetz, supra note 33, at See United States v. Chapa-Garza, 243 F.3d 921 (5th Cir. 2001); Dalton v. Ashcroft, 257 F.3d 200 (2d Cir. 2001); United States v. Trinidad-Aquino, 259 F.3d 1140 (9th Cir. 2001); Bazan-Reyes v. INS, 256 F.3d 600 (7th Cir. 2001). But see Tapia-Garcia v. INS, 237 F.3d 1216 (10th Cir. 2001). See also In re Ramos, 23 I. & N. Dec. 336 (B.I.A. Apr. 4, 2002). 62. See Bazan-Reyes, 256 F.3d at 602 (holding that a DWI conviction, including homicide by intoxicated use of a vehicle, is not a crime of violence under 18 U.S.C. 16(b)); Trinidad-Aquino, 259 F.3d at 1146 (holding that a DWI conviction is not a crime of violence as defined by 18 U.S.C. 16(b)); Chapa-Garza, 243 F.3d at 928 (holding that a DWI conviction is not a crime of violence under 18 U.S.C. 16(b)); Dalton, 257 F.3d at 208 (holding that a DWI conviction is not a crime of violence under 18 U.S.C. 16(b)). 63. See Tapia-Garcia, 237 F.3d at 1222 (holding that driving under the influence fits the statutory definition of a crime of violence under 18 U.S.C. 16(b)); Le v. Att y Gen., 196 F.3d 1352, 1354 (11th Cir. 1999) (holding that a conviction of driving under the influence that causes serious bodily injury is a crime of violence under 18 U.S.C. 16(a)). 64. See United States v. Parson, 955 F.2d 858 (3d Cir. 1992) (stating in dicta that a felony DWI conviction under Pennsylvania law would not be a crime of violence).

10 404 NEW ENGLAND LAW REVIEW [Vol. 37:2 courts holdings has a new importance in light of the most recent BIA decision on the issue. A. Relevant BIA Decisions The BIA s most recent interpretation of 18 U.S.C. 16 as it applies to DWI convictions is found in In re Ramos. 65 The defendant, Luis Ramos, was a lawful permanent United States resident when he was convicted in Massachusetts of operating a motor vehicle while under the influence. 66 Once the defendant was convicted, the INS began removal proceedings because the DWI conviction was an aggravated felony. 67 On reconsideration, the BIA withdrew their decisions in In re Puente 68 and In re Magallanes 69 and held that the offense of driving under the influence is not a crime of violence under 18 U.S.C. 16(b). 70 In doing so, the BIA stated that they would follow the interpretation in those circuits that had already addressed the issue, but: [i]n those circuits that have not yet ruled on the issue, [the BIA] will require that the elements of the offense reflect that there is a substantial risk that the perpetrator may resort to the use of force to carry out the crime before the offense is deemed to qualify as a crime of violence under 16(b). 71 B. Circuit Courts Holding that a Felony DWI Is Not a Crime of Violence The majority of jurisdictions have held that a DWI conviction is not a crime of violence. 72 These circuits have stated a variety of reasons for their decisions, but the most convincing of these reasons is the intent problem that arises when analyzing 18 U.S.C. 16(b) and the various state DWI I. &. N. Dec. 336 (B.I.A. Apr. 4, 2002). 66. See id. at 337. See also MASS. GEN. LAWS ch. 90, 24(1)(a)(1) (2000). The defendant was a native and citizen of Portugal. See Ramos, 23 I. & N. Dec. at See Ramos, 23 I. & N. Dec I. & N. Dec (B.I.A. Sept. 29, 1999) (holding that Texas DWI conviction is a crime of violence), overruled by Ramos, 23 I. & N. at I. & N. Dec. 1 (B.I.A. Mar. 19, 1998) (holding that DWI conviction under Arizona law is a crime of violence), overruled by Ramos, 23 I. & N. at See Ramos, 23 I. & N. Dec. at Id. (citations omitted). The BIA further require[s] that the offense be committed at least recklessly to meet this requirement. Id. 72. See Bazan-Reyes v. INS, 256 F.3d 600 (7th Cir. 2001); United States v. Trinidad- Aquino, 259 F.3d 1140 (9th Cir. 2001); United States v. Chapa-Garza, 243 F.3d 921 (5th Cir. 2001); Dalton v. Ashcroft, 257 F.3d 200 (2d Cir. 2001). But see Tapia-Garcia v. INS, 237 F.3d 1216 (10th Cir. 2001); Le v. Att y Gen., 196 F.3d 1352 (11th Cir. 1999).

11 2003] FELONY DWI CONVICTIONS UNDER 18 U.S.C 16(b) 405 statutes. 73 This next section will highlight the decisions of these circuit courts. 1. United States v. Chapa-Garza 74 The Fifth Circuit was the first to directly address the issue of whether a felony DWI fits the description of a crime of violence. 75 In Chapa-Garza, the five defendants had been convicted under Texas law for driving while intoxicated. 76 The defendants were removed from the United States after an immigration judge held that they were removable under 8 U.S.C. 1227(2)(A)(iii), based on an aggravated felony conviction. 77 The defendants re-entered the country illegally and plead guilty to unlawfully being in the United States after removal. 78 The district court, over the objections of the defendants, applied a sixteen level increase in their sentencing because the convictions for which they were removed were aggravated felonies. 79 However, on appeal the Fifth Circuit found that under the Sentencing Guidelines 80 a Texas felony DWI was not an aggravated felony because the conviction did not fall within the definition of a crime of violence as found in 18 U.S.C The court stated that 16(b) requires there be a 73. See Bazan-Reyes, 256 F.3d 600; Trinidad-Aquino, 259 F.3d 1140; Chapa-Garza, 243 F.3d 921; Dalton, 257 F.3d F.3d 921 (5th Cir. 2001). 75. See id. 76. See id. at 922. The Texas DWI statute simply states that, [a] person commits an offense if the person is intoxicated while operating a motor vehicle in a public place. TEX. PENAL CODE ANN (2001). 77. See Chapa-Garza, 243 F.3d at 923. See also supra note 30 and accompanying text. 78. See Chapa-Garza, 243 F.3d at See id. See also U. S. SENTENCING GUIDELINES MANUAL 2L1.2(b)(1)(C) (2002) (providing that if convicted of an aggravated felony, the base offense sentence is to be increased by eight levels). The application notes provide that for the purposes of the guideline, the definition of an aggravated felony is as found in 8 U.S.C. 1101(a)(43). See U. S. SENTENCING GUIDELINES MANUAL 2L1.2 Application Note 2 (2002); Chapa-Garza, 243 F.3d at 923. See also supra note 31 and accompanying text. 80. See U. S. SENTENCING GUIDELINES MANUAL 2L1.2(b)(1)(A) (2002). 81. See United States v. Chapa-Garza, 243 F.3d 921, 928 (5th Cir. 2001). See also supra note 32 and accompanying text. The court gave three main reasons why a DWI conviction should not be a crime of violence under 18 U.S.C. 16(b). See id. at 924. The first reason was that to do so would require[] that section 16(b) be construed the same as U.S.S.G. 4B1.2(a)(2), which now contains significantly broader language than does 18 U.S.C. 16(b). Id. See also infra notes and accompanying text. The second reason the court gave was that the substantial risk that physical force may be used contemplates only reckless disregard for the probability that intentional force may be

12 406 NEW ENGLAND LAW REVIEW [Vol. 37:2 substantial risk that the defendant will use physical force against another s person or property in the course of committing the offense. 82 Furthermore, the court reasoned that section 16(b) applies only when the nature of the offense is such that there is a substantial likelihood that the perpetrator will intentionally employ physical force against another s person or property in the commission thereof Bazan-Reyes v. Immigration and Naturalization Service 84 Four months later, the Seventh Circuit in Bazan-Reyes similarly held that defendants were not removable because a DWI conviction is not a crime of violence under 18 U.S.C. 16(b) 85 The Bazan-Reyes decision was a consolidation of three cases dealing with the same basic issue but from the three different states in the Seventh Circuit. 86 All of the defendants had been convicted of a DWI offense, and removal proceedings began shortly after their convictions. 87 The circuit court heard their cases on appeal from the BIA by retaining jurisdiction in order to determine whether the court had jurisdiction, and therefore, decided the case on the merits. 88 The court determined that the type of physical force and intent required by 16(b) was not present in the respective DWI statutes. 89 The Seventh Circuit illustrated this by stating that opening the car door or pressing the employed. Chapa-Garza, 243 F.3d at 924. The third reason was that the physical force described in section 16(b) is that used in the course of committing the offense, not that force that could result from the offense having been committed. Id. See also infra notes and accompanying text. 82. Chapa-Garza, 243 F.3d at 925. See also supra note 32 and accompanying text. 83. Chapa-Garza, 243 F.3d at F.3d 600 (7th Cir. 2001). 85. See id. at Id. at In 1999, Bazan-Reyes, a Mexican citizen, was convicted under Indiana law of a Class D felony of operating while intoxicated. Id. at 602. See IND. CODE ANN (Michie 1998). In 1998, Maciasowicz, a citizen of Poland and a lawful permanent resident of the United States, was convicted under Wisconsin law of homicide by intoxicated use of a vehicle. See Bazan-Reyes, 256 F.3d at 603. See WIS. STAT (2001). In 1997, Gomez-Vela, a Mexican citizen and a lawful permanent resident of the United States, was convicted under Illinois law of aggravated driving under the influence. See Bazan-Reyes, 256 F.3d at ; 625 ILL. COMP. STAT. 5/11-501(d)(1) (1997). 87. See Bazan-Reyes, 256 F.3d at See also supra note 86 and accompanying text. 88. See Bazan-Reyes v. INS, 256 F.3d 600, 604 (7th Cir. 2001). See also supra note and accompanying text. 89. See Bazan-Reyes, 256 F.3d at 612. None of the state DWI statutes in these three cases require proof of a mens rea element for conviction. See id. See also 625 ILL. COMP. STAT. 5/11-501(d)(1) (1997); IND. CODE (Michie 1998); WIS. STAT (1996).

13 2003] FELONY DWI CONVICTIONS UNDER 18 U.S.C 16(b) 407 accelerator does not constitute the use of physical force as required by the statute. 90 The Seventh Circuit further noted that even in the case of homicide by intoxicated use of a vehicle, the necessary intent would be lacking to qualify as a crime of violence. 91 The court stated that the only requirement in homicide by intoxicated use of a vehicle is that the person hit someone while intoxicated; the offense does not require that the person intentionally use force to achieve that result Dalton v. Ashcroft 93 Similar to the Seventh Circuit, the Second Circuit also held that a DWI conviction was not a crime of violence, and thus not an aggravated felony. 94 In Dalton, the defendant 95 was convicted several times under New York law for operating while intoxicated. 96 Mr. Dalton was ordered removed by an immigration judge for having committed an aggravated felony. 97 The BIA upheld the ruling on the basis that the felony DWI was a crime of violence under 18 U.S.C. 16(b). 98 The Second Circuit, however, vacated the removal order on appeal. 99 The court differentiated between risk of injury and risk of use of 90. See Bazan-Reyes, 256 F.3d at See id. The court addressed this issue since one of the defendants had been convicted under Wisconsin law for homicide by intoxicated use of a vehicle. See id. at See Bazan-Reyes, 256 F.3d at 609. The homicide by intoxicated use of a vehicle only requires that the death is caused by the operation of a vehicle and that the person operating the vehicle was either under the influence or that the person had a prohibited alcohol concentration. See WIS. STAT (1996) F.3d 200 (2d Cir. 2001). 94. See id. While concluding that a felony DWI is not a crime of violence, the court also emphasized the seriousness of the offense and that its decision was not to undermine that seriousness. See id. at 208. However, the court noted, by shoehorning such reprehensible conduct into criminal statutes that were not designed to hold it, we risk an equivalent harm of usurping federal and state legislative roles. Id. 95. Dalton was a Canadian citizen who had been living in the United States as a lawful permanent resident since 1958 before he was even one year old; his parents and siblings also resided in the United States. See Dalton, 257 F.3d at See id. See also N.Y. VEH. & TRAF. LAW (McKinney 1998). In the most recent incident, the violation was enhanced to a Class D felony. See Dalton, 257 F.3d at 202; N.Y. VEH. & TRAF. LAW (c)(ii) (McKinney 1998). 97. See Dalton, 257 F.3d at 203. See also supra note 31 and accompanying text. 98. See Dalton, 257 F.3d at 203. See also supra note 32 and accompanying text. The BIA had made no finding as to whether a DWI conviction met the elements of 16(a) and on appeal it was not disputed that the conviction failed to meet the requirements of 16(a). See Dalton, 257 F.3d at Dalton, 257 F.3d at 202.

14 408 NEW ENGLAND LAW REVIEW [Vol. 37:2 physical force, 100 writing that while it may be true that all driving involves some risk of an accident and drunk driving increases that risk this reasoning begs the question of whether an accident is something that can be referred to as involving the use of physical force. 101 Furthermore, the court held that an intention to drive is not the same as driving: 102 Just as many good intentions are crushed by reality, so too can reality felicitously crush bad intentions. 103 The court pointed out that 16(b) 104 defines a crime of violence as real, substantial risks and stated that deportation cannot be based upon hypothetical harms United States v. Trinidad-Aquino 106 The Ninth Circuit joined the Fifth and Seventh Circuits when it decided Trinidad-Aquino. 107 Mr. Trinidad-Aquino was removed after being convicted under California law for driving under the influence of alcohol and causing bodily injury. 108 After being convicted for illegally re-entering the United States, the district court applied a sixteen level increase to his sentence because his prior removal was based on an aggravated felony. 109 On appeal, the circuit court reversed because the California statute he was convicted under could be violated through negligence alone; thus a violation of the statute was not a crime of violence. 110 The court held that the defendant must intentionally or recklessly, but not negligently, risk using physical force against someone or something in order to commit a crime of violence Other Decisions At least two Third Circuit decisions contain dicta indicating that, if confronted with the issue, that court would join the circuits that have held 100. Id. at Id See id. at Id U.S.C. 16(b) (2001). See also supra note 32 and accompanying text Dalton v. Ashcroft, 257 F.3d 200, 206 (2d Cir. 2001) F.3d 1140 (9th Cir. 2001) See id Id. at The California statute requires that the person be under the influence and concurrently do any act forbidden by law or neglect any duty imposed by law in driving the vehicle, and that the act or neglect proximately causes bodily injury to any person other than the driver. CAL. VEH. CODE (Deering 2001) See Trinidad-Aquino, 259 F.3d at See id. at See id. at 1145.

15 2003] FELONY DWI CONVICTIONS UNDER 18 U.S.C 16(b) 409 that a felony DWI is not a crime of violence. 112 In United States v. Parson, 113 the court suggested that a felony DWI is not a crime of violence because 18 U.S.C. 16(b) requires a willingness to risk having to commit a crime of specific intent. 114 Additionally, in Francis v. Reno, the Third Circuit suggested that 16(b) requires intent on the part of the defendant. 115 In Francis, the defendant had been convicted in Pennsylvania for causing a traffic accident that killed two people. 116 The court held that a state misdemeanor conviction for vehicular homicide is not a crime of violence under 18 U.S.C. 16 because the statute required the crime to be a felony. 117 The Francis court further stated that even if the violation was considered a felony the court would still have concluded that the conviction was not a crime of violence. 118 The court noted that 16(b) requires the crime to be one 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. Homicide by vehicle in Pennsylvania is not such an offense See United States v. Parson, 955 F.2d 858, (3d Cir. 1992) (discussing Sentencing Guidelines and 18 U.S.C. 16(b) definitions of crime of violence). See also Francis v. Reno, 269 F.3d 162, (3d Cir. 2001) (explaining that even if 18 U.S.C. 16(b) did encompass misdemeanor convictions, defendant s conviction for vehicular homicide would still not be a crime of violence because there is no intent required in order to violate the statute) F.2d 858 (3d Cir. 1992) See id. at See also supra note 32 and accompanying text See Francis, 269 F.3d 162 at See id. at 164. The defendant was a citizen of Jamaica although he had lived in the United States for more than twenty-five years as a legal resident. See id. The defendant was found in violation of 75 PA. CONS. STAT. ANN. 3732, which states: any person who unintentionally causes the death of another person while engaged in the violation of any law of this Commonwealth or municipal ordinance applying to the operation or use of a vehicle or to the regulation of traffic except section 3731 (relating to driving under [the] influence of alcohol or controlled substance) is guilty of homicide by vehicle, a misdemeanor of the first degree, when the violation is the cause of death. 75 PA. CONS. STAT. ANN (West 1996). The Pennsylvania statute has since been amended to make the offense a third degree felony. See 75 PA. CONS. STAT. ANN (West 1996 & Supp. 2002) See Francis v. Reno, 269 F.3d 162, (3d Cir. 2001). See also supra note 35 and accompanying text. The immigration judge had ruled that the violation was not a crime of violence, however, on appeal the BIA disagreed and ordered Francis removed. See Francis, 269 F.3d at See Francis, 269 F.3d at Id. (citations omitted). Francis conviction did not meet this requirement since he had been charged with unintentional conduct. See id. at 172.

16 410 NEW ENGLAND LAW REVIEW [Vol. 37:2 C. Circuits Holding that a Felony DWI Conviction is a Crime of Violence While the majority of courts have held that a felony DWI conviction is not an aggravated felony because the crime does not fit the definition of a crime of violence, two circuit courts have let the BIA s interpretation of a crime of violence stand Tapia-Garcia v. Immigration and Naturalization Services 121 In Tapia-Garcia, the Tenth Circuit upheld the immigration judge s decision to remove the defendant under 18 U.S.C. 16 on the grounds that sub-section (b) does not require intentional conduct. 122 The immigration judge held that the Idaho Code section (5) involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. 123 The Tenth Circuit relied on cases that discussed the definition of crime of violence as it is used in the Career Offender Section of the Federal Sentencing Guidelines. 124 However, as the Tenth Circuit recognized, the wording of 18 U.S.C. 16 and 4B1.2(a) of the Sentencing Guidelines are not identical. 125 Nevertheless, the Tenth Circuit did not let the difference 120. See Tapia-Garcia v. INS, 237 F.3d 1216, 1222 (10th Cir. 2001) (holding that BIA reasonably construed 18 U.S.C. 16(b) to include an offense for driving under the influence of drugs or alcohol. ); Le v. Att y Gen., 196 F.3d 1352, 1354 (11th Cir. 1999) (holding that driving under the influence with serious bodily injury is a crime of violence under 18 U.S.C. 16(a)). But see United States v. Chapa-Garza, 243 F.3d 921 (5th Cir. 2001); Dalton v. Ashcroft, 257 F.3d 200 (2d Cir. 2001); United States v. Trinidad-Aquino, 259 F.3d 1140 (9th Cir. 2001); Bazan-Reyes v. INS, 256 F.3d 600 (7th Cir. 2001) F.3d 1216 (10th Cir. 2001) See id. at See also supra note 32 and accompanying text. The defendant, a Mexican citizen and a lawful permanent resident of the United States, was convicted of a felony DWI under (5) of the Idaho Code. See Tapia-Garcia, 237 F.3d at See also IDAHO CODE (Michie 2000). The circuit court held that the immigration judge s interpretation of 18 U.S.C. 16(b) was reasonable. See Tapia-Garcia, 237 F.3d at Tapia-Garcia, 237 F.3d at Idaho Code provides in relevant part: [i]t is unlawful for any person who is under the influence of any other drug or any combination of alcohol [to] drive or be in actual physical control of a motor vehicle within this state. IDAHO CODE (5) (Michie 2000) See Tapia-Garcia, 237 F.3d at Section 4B1.2(a) of the Sentencing Guidelines defines a crime of violence as any crime, federal or state, which is punishable by imprisonment for a term exceeding one year, that (1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) otherwise involves conduct that presents a serious potential risk of physical injury to another. U. S. SENTENCING GUIDELINES MANUAL 4B1.2(a) (2002) See Tapia-Garcia v. INS, 237 F.3d 1216, 1223 (10th Cir. 2001). See also 18

17 2003] FELONY DWI CONVICTIONS UNDER 18 U.S.C 16(b) 411 interfere with its reasoning in Tapia-Garcia Le v. Attorney General 127 The Eleventh Circuit has essentially joined the Tenth Circuit in determining that a felony DWI conviction is a crime of violence. 128 Mr. Le was convicted of driving under the influence and causing serious bodily injury and driving with a suspended license and causing serious bodily injury. 129 The INS began removal proceedings against Mr. Le since he was an alien convicted of an aggravated felony. 130 The court held that because one element of the offense included the actual use of physical force, the conviction met the requirement of 18 U.S.C. 16(a). 131 IV. ANALYSIS The majority of circuits that have directly confronted the issue of whether a DWI conviction is a crime of violence have determined that it is not. 132 However, there still is a question whether that should be the prevailing interpretation of 18 U.S.C. 16(b) 133 because the reasoning of the various courts have differed and concentrated on different aspects of the statute. 134 In analyzing the outcomes from these various circuit courts, it is difficult to determine exactly which court is correct. Each court has given a different reason for their decision, and each state has a different DWI U.S.C. 16 (2000); U. S. SENTENCING GUIDELINES MANUAL 4B1.2(a) (2002). The sentencing guideline only requires that the crime involves conduct that presents a serious potential risk of physical injury to another. U. S. SENTENCING GUIDELINES MANUAL 4B1.2(a) (2002). Conversely, 18 U.S.C. 16(b) requires that the crime, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. 18 U.S.C. 16(b) (2000) See Tapia-Garcia, 237 F.3d at The court reasoned that while 18 U.S.C. 16(b) and 4B1.2(a) of the Sentencing Guidelines are not identical, the well-documented danger inherent in drunk driving supports the conclusion that a DUI offense may also constitute a crime of violence under 16(b) because the generic elements of the offense present a substantial risk that physical force may be used. Id. at 1223 (omission in original) F.3d 1352 (11th Cir. 1999) See id. at Id. at See also FLA. STAT. ANN (3), (3) (West 1996) See Le, 196 F.3d at See also supra note 31 and text. Le s legal status in the United States was not noted in the opinion, only that he was a citizen of Vietnam. See Le, 163 F.3d at See Le, 196 F.3d at See also FLA. STAT. ANN (3) (West 2001); supra note 32 and accompanying text See discussion supra Part III.A See supra note 32 and accompanying text See discussion supra Part III.A.

18 412 NEW ENGLAND LAW REVIEW [Vol. 37:2 statute that may contain different elements. This part of the Note will first explore exactly how the courts have interpreted the different words found within 18 U.S.C. 16(b), 135 and what those words mean in ordinary English as well as in the legal field. The next part examines the DWI laws of those states in which the circuit courts have made a decision, comparing and contrasting the decisions and analyzing whether the decisions of other jurisdictions influenced the respective court s holding. Finally, the DWI statutes of states in those circuits that have not yet made a determination on the issue will be discussed in an effort to determine how those circuit courts may rule when the issue arises. A. The Meaning of the Words After a close look at the definitions of the words found within 16(b), it is difficult to conclude that a felony DWI falls within the statute s scope. Circuit courts have scrutinized the meaning of the words substantial risk, physical force, and used against to determine what is actually covered by the phrase crime of violence Substantial Risk First, the meaning of substantial risk in both ordinary English and the legal field must be determined. Substantial is an adjective meaning of ample or considerable amount, quantity, size. 137 With respect to 16(b), 138 substantial qualifies the noun risk, which is defined as 135. See supra note 32 and accompanying text See generally Dalton v. Ashcroft, 257 F.3d 200 (2d Cir. 2001) (examining meaning of use and risk of physical force to determine what constitutes a crime of violence); United States v. Chapa-Garza, 243 F.3d 921 (5th Cir. 2001) (contemplating definition of use in determining that DWI is not a crime of violence); Bazan-Reyes v. INS, 256 F.3d 600 (7th Cir. 2001) (discussing definition of use of physical force and substantial risk in holding that DWI is not a crime of violence); United States v. Trinidad- Aquino, 259 F.3d 1140, 1145 (9th Cir. 2001) (analyzing definition of use against a person or property of another in deciding that DWI is not a crime of violence). However, the courts that have held that a felony DWI is a crime of violence have not delved into the meaning of the words in the statute. See generally Tapia-Garcia v. INS, 237 F.3d 1216 (10th Cir. 2001) (relying on cases analyzing crime of violence as found under the Sentencing Guidelines). See also Le v. Att y Gen., 196 F.3d 1352 (11th Cir. 1999) (determining felony DWI with resulting serious bodily injury is a crime of violence under 18 U.S.C. 16(a), therefore no need to determine what is meant in 16(b)). See also Michael G. Salemi, DUI as a Crime of Violence Under 18 U.S.C. 16(b); Does a Drunk Driver Risk Using Force?, 33 LOY. U. CHI. L.J. 691, But see Julie Anne Rah, The Removal of Aliens who Drink and Drive: Felony DWI as a Crime of Violence under 18 U.S.C. 16(b), 70 FORDHAM L. REV. 2109, (2002) RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE 1897 (2d ed. 1987) U.S.C. 16(b) (2000).

19 2003] FELONY DWI CONVICTIONS UNDER 18 U.S.C 16(b) 413 exposure to the chance of injury or loss; a hazard or dangerous chance. 139 Additionally, in the legal field, risk is defined as [t]he chance of injury, damage, or loss; danger or hazard. 140 Accordingly, substantial risk in 16(b) refers to a considerable amount of chance being involved. The Fifth Circuit, in Chapa-Garza, 141 found that substantial risk referred to a substantial likelihood. 142 In the recent case of Montiel- Barraza v. INS, 143 the government argued that where the defendant was convicted under a statute requiring three or more separate violations within seven years, 144 a person who has violated section is presumptively aware of the life-threatening nature of the activity and the grave risks involved. 145 However, the court held that section is an enhancement statute and therefore it does not alter the elements of the underlying offense. 146 However, in Dalton 147 it was argued although unsuccessfully that the risk of an accident involving physical force is substantial when driving drunk and therefore 16(b) s definition of crime of violence would apply. 148 The risk to which the statute refers is not clear to the courts. Usually, in the context of DWI cases, the risk is causing an accident or injury to someone. 149 In Tapia-Garcia, 150 the court pointed out that, [t]he risk of injury from drunk driving is neither conjectural or speculative. Drunk driving is a reckless act that often results in injury, and the risks of driving intoxicated are well known. 151 Additionally, the Tenth Circuit cited the well-documented danger inherent in drunk driving as support for 139. RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE 1660 (2d ed. 1987) BLACK S LAW DICTIONARY 1328 (7th ed. 1999) F.3d 921 (5th Cir. 2001). See also discussion supra Part III.B Id. at F.3d 1178 (9th Cir. 2002) See CAL. VEH. CODE (formerly 23175) (West 2001) Montiel-Barraza v. INS, 275 F.3d 1178, 1180 (9th Cir. 2002). See also CAL. VEH. CODE (formerly 23175) (West 2001) Montiel-Barraza, 275 F.3d at 1180 (reasoning that Ninth Circuit Court s decision in Trinidad-Aquino applies in this case). For a discussion of Trinidad-Aquino, see supra Part III.B F.3d 200 (2d Cir. 2001). See also discussion supra Part III.B See id. at 210 (Walker, C.J., dissenting). The dissent also argues that because the offense requires two prior DWI convictions, the risk is greater since it is more likely that an injury will occur on one of the three occasions. See id See id. at 206. The Second Circuit held that the risk associated with drunk driving is that of causing an accident, not that physical force will be used by the driver of a vehicle. See id F.3d 1216 (10th Cir. 2001). See also supra Part III.C Id. at 1222 (quoting United States v. Farnsworth, 92 F.3d 1001, (10th Cir. 1996)).

20 414 NEW ENGLAND LAW REVIEW [Vol. 37:2 concluding that a felony DWI conviction was a crime of violence. 152 However, the Second Circuit held that the language of 16(b) fails to capture the nature of the risk inherent in drunk driving, since 16(b) requires substantial risk that physical force be used, not substantial risk that injury occur. 153 Thus, in determining whether there is a substantial risk, the meaning of physical force must also be deciphered. However, as the Second Circuit pointed out, in the context of driving a vehicle, it is unclear what constitutes the use of physical force Physical Force As the previous section suggested, there is uncertainty on the meaning of risks associated with driving, particularly whether such risks necessarily involve physical force. 155 Force is defined as strength or power exerted upon an object; physical coercion; violence; unlawful violence threatened or committed against persons or property. 156 Furthermore, in a legal context, force is defined as [p]ower, violence, or pressure directed against a person or thing. 157 Additionally, force is defined as physical acts or the threat of physical acts intentionally used to do an act or to commit a crime. 158 Physical force, also referred to as actual force, is defined as [f]orce consisting in a physical act, esp[ecially], a violent act directed against a robbery victim. 159 Therefore, as 16(b) 160 indicates, physical injury alone does not necessarily mean that physical force was used. 161 Courts holding that a felony DWI conviction is not a crime of violence have taken the opportunity to differentiate between the risk of physical force and the risk of injury. 162 [These] courts have also recognized the logical fallacy inherent in reasoning that simply because all conduct involving a risk of the use of physical force also involves a risk of injury then the converse must 152. See id. at See Dalton v. Ashcroft, 257 F.3d 200, 206 (2d Cir. 2001). See also supra note 32 and accompanying text Dalton, 257 F.3d at 206 (citation omitted) See supra notes and accompanying text RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE 748 (2d ed. 1987) BLACK S LAW DICTIONARY 656 (7th ed. 1999) BARRON S LAW DICTIONARY 205 (4th ed. 1996) BLACK S LAW DICTIONARY 656 (7th ed. 1999) U.S.C. 16(b) (2000) See id. See also Dalton v. Ashcroft, 257 F.3d 200, 207 (2d Cir. 2001) See Dalton, 257 F.3d at 206; Bazan-Reyes v. INS, 256 F.3d 600, (7th Cir. 2001); United States v. Chapa-Garza, 243 F.3d 921, 927 (5th Cir. 2001); United States v. Trinidad-Aquino, 259 F.3d 1140, 1146 (9th Cir. 2001).

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