Aguilar v. Attorney General of the United States
2011 U.S. App. LEXIS 23701
| 3rd Cir. | 2011Background
- Aguilar petitions for review of a BIA removal order based on a Pennsylvania conviction for sexual assault under § 3124.1, deemed a crime of violence under 18 U.S.C. § 16(b) and an aggravated felony under 8 U.S.C. § 1101(a)(43)(F).
- § 3124.1 requires non-consensual sexual intercourse or deviate sexual intercourse, with the defendant found guilty of a second-degree felony and indecent assault in the same proceeding.
- The government charged removal based on § 16(b)’s general crime-of-violence definition, which focuses on the offense’s nature and the substantial risk of force, not mens rea alone.
- The IJ and the BIA held that non-consensual sexual intercourse inherently creates a substantial risk of force, making § 3124.1 a § 16(b) crime of violence.
- The case proceeded on the formal categorical approach to determine if § 3124.1 fits § 16(b) without examining underlying facts beyond the conviction.
- The Third Circuit reviews de novo the interpretation of the criminal provisions governing aggravated felonies under federal immigration law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Can recklessly committed crimes be § 16(b) crimes of violence? | Aguilar: recklessness precludes § 16(b) violence. | Government: some recklessly committed crimes can qualify if they involve substantial risk of force. | Yes; recklessness can still yield § 16(b) violence when the crime's nature creates substantial risk of force. |
| Does § 3124.1 constitute a crime of violence under § 16(b)? | Aguilar: § 3124.1 is recklessly mens rea but not inherently violent. | BIA: non-consensual intercourse creates substantial risk of force. | Yes; § 3124.1 is a crime of violence under § 16(b). |
| Should the court apply the categorical approach to § 3124.1 in § 16(b) analysis? | Aguilar: rely on statutory elements only; minimum mens rea not dispositive. | Government: use categorical approach to assess conviction’s elements. | Apply the categorical approach; rely on statute and conviction elements. |
Key Cases Cited
- Leocal v. Ashcroft, 543 U.S. 1 (2004) (recognizes focus on 'substantial risk' of force, not mere recklessness)
- Tran v. Gonzales, 414 F.3d 464 (3d Cir. 2005) (limits recklessly triggered crimes as § 16(b) violence based on risk of force)
- Pagas Popal v. Gonzales, 416 F.3d 249 (3d Cir. 2005) (discusses recklessness in § 16(b) context; dicta regarding felony requirement)
- Henry v. Bureau of Immigration & Customs Enforcement, 493 F.3d 303 (3d Cir. 2007) (distinguishes Recklessness in § 16(b) but deals with intentional conduct under the statute)
- Begay v. United States, 553 U.S. 137 (2008) (restricts 'mere recklessness' in ACCA; distinguishes from § 16(b) analysis)
- Leocal v. Ashcroft (duplicate), 543 U.S. 1 (2004) (see above)
- Sutherland v. Reno, 228 F.3d 171 (2d Cir. 2000) (non-consent element case supporting risk of force analysis)
- Rooks v. United States, 556 F.3d 1145 (10th Cir. 2009) (non-consensual sexual penetration analyzed under violent crime framework)
- Zaidi v. Ashcroft, 374 F.3d 357 (5th Cir. 2004) (non-consent-based offense recognized as § 16(b) crime of violence)