Thomas Anthony DALTON, Petitioner, v. John ASHCROFT, Attorney General of the United States; Immigration and Naturalization Service, Respondents.
No. 00-4123.
United States Court of Appeals, Second Circuit.
Argued Jan. 26, 2001. Decided July 20, 2001.
Meredith E. Kotler, Assistant United States Attorney, New York, NY, (Mary Jo White, United States Attorney, Diogenes P. Kekatos and Jeffrey S. Oestericher, Assistant United States Attorneys, of counsel), for Respondents.
Before JOHN M. WALKER, Jr., Chief Judge, OAKES and PARKER, Circuit Judges.
OAKES, Senior Circuit Judge:
Petitioner was ordered removed from the United States under
The principal question on appeal is whether a felony DWI conviction under New York State law constitutes a “crime of violence” under
BACKGROUND
I. Factual Background
Thоmas Anthony Dalton, a native and citizen of Canada, has been living continuously in the United States as a lawful permanent resident since 1958, before he was one year old. His parents and siblings reside in the United States as well. Dalton has been convicted several times under New York Vehicle and Traffic Law (“NYVTL“)
II. Statutory Background
Under
(a) an offеnse 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.
III. Procedural Background
In April 1999, while Dalton was serving his prison sentence, the Immigration and Naturalization Service (“INS“) initiated remоval proceedings against him, charging that he was removable as an alien convicted of an aggravated felony resulting from a felony DWI conviction in violation of
During two telephonic removal hearings, Dalton admitted that he was convicted under
In December 1999, the Immigration Judge (“IJ“) rejected Dalton‘s argument and ordered him removed to Canada without the opportunity to request relief.2 Dalton appealed the IJ‘s decision to the Board of Immigration Appeals (“BIA“). Basing its reasoning on BIA precedent regarding Texas and Arizona DWI statutes3 as well as a Fifth Circuit opinion that has since been withdrawn,4 the BIA concluded on May 17, 2000, that a violation of
DISCUSSION
As an initial matter, we note that the scope of our review in this case is limited jurisdictionally under
We also note that while we apply Chevron deference, see Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), to the BIA‘s interpretation of the INA, we review de novo its interpretation of federal or state criminal statutes. See Sutherland v. Reno, 228 F.3d 171, 173-74 (2d Cir.2000) (citing Michel v. INS, 206 F.3d 253, 262 (2d Cir. 2000)). Accordingly, because the INA defines an “aggravated felony” in
I. Application of Categorical Analysis to “Crime of Violence”
Under the language of the statute, a
In this Circuit, we have long endorsed categorical analyses of criminal statutes in the context of deportation orders for crimes of moral turpitude. See United States ex rel. Guarino v. Uhl, 107 F.2d 399, 400 (2d Cir.1939). Our decisions in this area stand for the proposition that the оffense, judged from an abstracted perspective, must inherently involve moral turpitude; in other words, any conduct falling within the purview of the statute must by its nature entail moral turpitude. See id. (holding that because defendant could be convicted under relevant statute for crimes not involving moral turpitude, statute could not form basis for order of deportation based upon commission of crime of moral turpitude); see also United States ex rel. Zaffarano v. Corsi, 63 F.2d 757, 758 (2d Cir.1933) (finding that сonviction for second degree assault did not “inherent[ly]” involve moral turpitude because statute could encompass crimes that both did and did not involve moral turpitude); United States ex rel. Robinson v. Day, 51 F.2d 1022, 1022-23 (2d Cir.1931) (“When by its definition [a statute] does not necessarily involve moral turpitude, the alien cannot be deported because in the particular instance his conduct was immoral.“). More recently, we have reaffirmed this approach in Michel v. INS, where we stated that “[a]s a general rule, if a statute encompasses both acts that do and do not involve moral turpitude, the BIA cannot sustain a deportability finding [predicated on moral turpitude, based] on that statute.” 206 F.3d at 263 (quoting Hamdan v. INS, 98 F.3d 183, 187 (5th Cir.1996)).
Based upon the language of the statute requiring analysis of the “nature” of the crime, as well as by analogy to this Circuit‘s law regarding moral turpitude, we believe that the categorical approach is appropriate for determining whether an offense is a crime of violence under
Furthermore, the categorical approach is especially appropriate in the current context where the relevant facts may be up to ten years old and may never have been developed in a trial court.7
II. Categorical Analysis of NYVTL § 1192.3
In the instant case, upon a de novo review of the relevant criminal statute, we conclude that not all violations of
[T]he breadth of conduct prohibited by Vehicle and Traffic Law § 1192, as interpreted by our courts, is sweeping. Our courts have long recognized that the definition of operation is broader than that of driving and that “[a] person operates a motor vehicle within the meaning of [the statute] when, in the vehicle, he intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of the vehicle[.]”
Id. (quoting People v. Alamo, 34 N.Y.2d 453, 459, 358 N.Y.S.2d 375, 315 N.E.2d 446 (1974) (quoting Matter of Prudhomme v. Hults, 27 A.D.2d 234, 237, 278 N.Y.S.2d 67 (1967))).
Thus, in New York, a defendant can be found guilty of driving while intoxicated even if he or she is asleep at the wheel of a car whose engine is not running and evidence is adduced at trial that the vehicle never moved. See People v. Marriott, 37 A.D.2d 868, 325 N.Y.S.2d 177, 178 (3d Dep‘t 1971). A person can also be found guilty of operating a vehicle while intoxicated without knowing how to operate the vehicle in questiоn. See Prescott, 722 N.Y.S.2d at 782. Indeed, the vehicle itself need not even be operative in order to sustain a conviction for operating it while intoxicated. See People v. David “W“, 83 A.D.2d 690, 442 N.Y.S.2d 278, 279 (3d Dep‘t 1981) (holding that testimony regarding the inoperability of a vehicle behind the wheel of which defendant was found drunk and slumped over was inadmissible because such testimony is irrelevant to the question of guilt under statute).
The aforementioned cases make clear that a person can be cоnvicted under
The government argues that the requisite minimum conduct required for a DWI conviction under Prescott does always present a “substantial risk that physical force ... may be used” because the proscribed conduсt focuses on the defendant‘s intention, and an intention to drive while intoxicated, the government argues, always poses the risks inherent in drunk driving. We disagree. An intention to drive is not the same as driving. Just as many good intentions are crushed by reality, so too can reality felicitously crush bad intentions. Subsection 16(b) defines a “crime of violence” in terms of real, substantial risks and cannot support deportation based upon hypothetical harms.
III. Use of Physical Force
Even if we were to accept the government‘s argument that
The government likens, at different times, the “use of physical force” with speeding, crashing, harming others and/or possessing an out-of-control car. These interpretations tend to equate “physical force” with an accident. Under this definition, a drunk driver would not be “using” physical force unless he or she had an accident. This interpretation distorts language and our commonsense understandings insofar аs an accident, by definition, is something that is neither planned nor foreseen—except perhaps in hindsight. Although an accident may properly be said to involve force, one cannot be said to use force in an accident as one might use force to pry open a heavy, jammed door.
In United States v. Rutherford, 54 F.3d 370 (7th Cir.1995), the Seventh Circuit came to the same conclusion. Analyzing the difference between the “use of force” and the “risk of injury” from a plain language point оf view, the court concluded that while drunk driving involved “a serious potential risk of physical injury,” it did not involve “use of physical force.” Id. at 372-73. The court stated:
[A] drunk driving accident is not the result of plan, direction, or purpose. ... A drunk driver who injures a pedestrian would not describe the incident by saying he “used” his car to hurt someone. In ordinary English, the word “use” implies intentional availment. ... No availment of force in order to achieve an end is present in a drunk driving accident. Thus under a pure plain language approach, one would be hard-pressed to argue that Rutherford‘s accident involved the use of force.
Id. (footnote omitted).
Indeed, the government struggles to avoid awkward language when describing an accident as the “use of physical force.” The government writes that “it is undeniable that driving while intoxicated greatly increases the likelihood that one will inflict harm on others via the use of force,” and that “the crashing of the drunk driver‘s automobile ... constitutes the force that is likely to be used.” The government con-
While it may be true that all driving involves some risk of an accident and drunk driving increases that risk,8 upon closer examination, this reasoning begs the question of whether an accident is something that can be referred to as involving the “use of physical force.” Such an argument equates the use of physical force with harm or injury, thus returning the inquiry to the question of whether there is any material difference between the risk of the “use of physical force” and the “risk of injury.”
IV. Risk of Injury v. Risk of Use of Physical Force
The government argues that the difference, if any, between a “risk of injury” and a “risk of the use of physical force” is negligible. We disagree. There are many crimes that involve a substantial risk of injury but do not involve the use of force. Crimes of gross negligence or reckless endangerment, such as leaving an infant alone near a pool, involve a risk of injury without the use of force. Statutes criminalizing the use, possession and/or distribution of dangerous drugs and other controlled substances also underscore the fact that some criminal conduct may involve a substantial risk of injury or harm without at the same time involving the use of physical force. Other 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 convеrse must also be true. See Chapa-Garza, 243 F.3d at 926; United States v. Parson, 955 F.2d 858, 866 (3d Cir.1992).
The United States Sentencing Guidelines recognized the difference between “use of force” and “injury” when it broadened the scope of its definition for “crimes of violence” under the career offender provision in
(a) The term “crime of violence” means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—
. . .
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
Moreover, our conclusion accords with that of the only othеr circuit that has reviewed de novo the question whether a felony DWI conviction constitutes a “crime of violence” under
Of course, nothing in our decision today in any way underestimates the toll that drunk driving has taken on human life; it is an urgent, nationwide problem of staggering proportion. But 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. We are reminded here of what the Supreme Court said years ago in the context of interpreting an immigration law providing for dеportation on the basis of crimes of moral turpitude:
[D]eportation is a drastic measure and at times the equivalent of punishment or exile. It is the forfeiture for misconduct of a residence in this country. Such a forfeiture is a penalty. To construe this statutory provision less generously to the alien might find support in logic. But since the stakes are considerable for the individual, we will not assume that Congress meant to trench on his freedom beyond that which is required by the narrоwest of several possible meanings of the words used.
Fong Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 92 L.Ed. 433 (1948) (citation omitted).
V. Additional Arguments
We have considered Dalton‘s arguments that under our recent decision in St. Cyr v. INS, 229 F.3d 406 (2d. Cir.2000) aff‘d, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), he is eligible for a cancellation of removal and that INA
CONCLUSION
For the foregoing reasons, we hold that a felony DWI conviction under
Unlike the majority, I believe that New York‘s felony DWI statute,
First, while I agree with the majority that
Second, I cannot agree with the majority‘s conclusion that driving while intoxicated does not involve “a substantial risk that physical force against the person or property of another may be used.”
Moreover, that the offense requires two prior drunk driving convictions increases the attendant risk. Although the prior convictions do not increase the chance that the defendant will cause injury in driving drunk for the third time (they are independent events), the risk that injury will occur on one of three occasions is greater than on any one occasion considered alone. Consequently, the more drunk driving incidents incorporated into a single offense, the greater the risk of harm associated with that offense. Because New York‘s DWI statute requires multiple prior DWI convictions, the offense “by its nature” involves a substantial risk that harmful force will be used.
For the foregoing reasons, I respectfully dissent.