U.S. v. Portillo-Mendoza; Montiel-Barraza v. INS: 9th Circuit Rules Felony Conviction for DUI...Not an Aggravated Felony

IMMIGRATION LAW & POLICY

Removal Issues Concerning Criminal Convictions

U.S. V. PORTILLO-MENDOZA, MONTIEL-BARRAZA V. INS: 9TH CIRCUIT RULES THAT FELONY CONVICTION FOR DUI WITH PRIOR VIOLATIONS IS NOT AN AGGRAVATED FELONY
Immigrants' Rights Update, Vol. 16, No. 1, February 28, 2002

Two three-judge panels of the U.S. Court of Appeals for the Ninth Circuit have recently issued decisions that find that a California felony conviction for driving under the influence of alcohol (DUI) with multiple prior convictions is not a "crime of violence" under 18 U.S.C. section 16, and therefore is not an "aggravated felony" under section 101(a)(43)(F) of the Immigration and Nationality Act.

Both decisions follow the court's prior decision in U.S. v. Trinidad-Aquino, 259 F.3d 1140 (9th Cir. 2001). In Trinidad-Aquino, the court ruled that a conviction under California Vehicle Code section 23153 for driving under the influence with injury to another is not a "crime of violence" because the statute can be violated through mere negligence (see "Three Circuit Courts Rule Felony DUI Conviction Not "Aggravated Felony," Immigrants' Rights Update, Aug. 31, 2001, p. 12). The same is true for the statute at issue in the two recent decisions, California Vehicle Code section 23550, which provides that a person convicted of three or more separate DUI violations within seven years is punishable by imprisonment for not more than one year. Because this statute has no intent requirement and can be violated through negligence, both panels concluded that it is not a "crime of violence."

The first decision, U.S. v. Portillo-Mendoza, 273 F.3d 1224 (9th Cir. 2001), is a ruling on an appeal from the criminal sentencing of the defendant. Apparently neither party raised the issue, but the court on its own motion found that it was improper for the district court to have determined that the defendant's conviction for "DUI with priors" was an aggravated felony warranting enhancement of his sentence under federal sentencing guidelines.

The second decision, Montiel-Barraza v. INS, 275 F.3d 1178 (9th Cir. 2002), was made on a petition for review of a removal order. Finding that the conviction for DUI with priors is not an aggravated felony, the court granted the petition.