Accardo v. U.S. Attorney General
634 F.3d 1333
| 11th Cir. | 2011Background
- Accardo, an Italian citizen, pleaded guilty in February 2007 to extortionate extension of credit under 18 U.S.C. § 892(a).
- DHS initiated removal proceedings, charging Accardo as removable under INA § 237(a)(2)(A)(iii) for having been convicted of an aggravated felony.
- DHS argued § 892(a) is a divisible statute and constitutes a crime of violence under 18 U.S.C. § 16, making the conviction an aggravated felony.
- An Immigration Judge initially terminated removal, finding no crime of violence based on the plea colloquy and record.
- The Board of Immigration Appeals reversed, holding § 892(a) categorically a crime of violence under § 16(a) and remanding; alternatively, under § 16(b).
- The Eleventh Circuit held § 892(a) is not categorically a crime of violence under § 16(a) or § 16(b) and remanded for the Board to apply the modified categorical approach.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 892(a) is categorically a crime of violence under § 16(a). | Accardo contends § 892(a) is not always violent by its terms. | Board concluded § 892(a) is categorically a crime of violence under § 16(a). | Not categorically; § 892(a) encompasses non-violent extensions of credit. |
| Whether § 892(a) is categorically a crime of violence under § 16(b). | Even if not under § 16(a), § 892(a) may still violate § 16(b). | Board found it violates § 16(b) categorically. | Not categorically; § 892(a) does not invariably involve a substantial risk of force. |
| What remedy applies given § 892(a) is not categorically a crime of violence. | Case should be decided on the actual record using a modified categorical approach. | Board previously reached and remanded on a categorical theory; need not apply modified approach on remand. | Remand to apply the modified categorical approach for a true determination. |
Key Cases Cited
- Leocal v. Ashcroft, 543 U.S. 1 (U.S. 2004) (focus on offense elements for 'crime of violence' analysis)
- Gonzales v. Duenas-Alvarez, 549 U.S. 183 (U.S. 2007) (definitional scope of crimes of violence)
- I.N.S. v. Orlando Ventura, 537 U.S. 12 (U.S. 2002) (agency remand guidance in immigration context)
- Palomino Garcia v. United States, 606 F.3d 1317 (11th Cir. 2010) (modified categorical approach under divisible statutes)
- Obasohan v. U.S. Att'y Gen., 479 F.3d 785 (11th Cir. 2007) (defining standard for aggravated felony review)
- Hernandez v. U.S. Att'y Gen., 513 F.3d 1336 (11th Cir. 2008) (reaffirming standards for crimes of violence analysis)
- Madori v. United States, 419 F.3d 159 (2d Cir. 2005) (interpretation of 'other criminal means' in § 892(a))
- Allen v. United States, 127 F.3d 260 (2d Cir. 1997) (requirement of violence or threat for § 892 violation)
- Spillone v. United States, 879 F.2d 514 (9th Cir. 1989) (mutual understanding that violence may result suffices)
- Pacione v. United States, 738 F.2d 567 (2d Cir. 1984) (statutory phrase 'other criminal means' not read to include all crimes)
- Suris Gen. Contractor Corp. v. New Metro. Fed. Sav. & Loan Ass'n, 873 F.2d 1401 (11th Cir. 1989) (extortionate credit transaction case distinguishing violent collection means)