Matter of Ramos: BIA Overrules Prior Decisions to Find DUI Conviction Not a Crime of Violence "Aggravated Felony"

IMMIGRATION LAW & POLICY

Removal Issues Concerning Criminal Convictions

MATTER OF RAMOS: BIA OVERRULES PRIOR DECISIONS TO FIND DUI CONVICTION NOT A CRIME OF VIOLENCE "AGGRAVATED FELONY"
Immigrants' Rights Update, Web Edition, July 15, 2002

The Board of Immigration Appeals has overruled prior decisions that found state offenses of driving under the influence (DUI) to be "crimes of violence" so as to constitute an "aggravated felony" if the defendant received a sentence of one year or more. The decision overrules Matter of Puente, Int. Dec. 3412 (BIA 1999) and Matter of Magallanes, Int. Dec. 3341 (BIA 1998).

In reversing its prior position, the BIA noted that a majority of the federal circuit courts of appeal that have considered the prior position have rejected it. Under the new ruling, the BIA will follow the law of the circuit in which a case arises. In circuits in which the federal court of appeals has not decided the issue, the BIA will consider a state DUI offense to constitute a "crime of violence" only if a conviction under the statute requires a level of criminal intent of at least "recklessness" and involves a substantial risk that the perpetrator may resort to the use of force to carry out the crime.

In the case before the BIA, the respondent, a Mr. Ramos, had been convicted of "operating" a vehicle while under the influence, in violation of Massachusetts law. Because it was a second conviction within a ten-year period, a sentence enhancement resulted in a two-year sentence of imprisonment. In removal proceedings, an immigration judge found that Ramos was deportable as an aggravated felon, and the BIA affirmed that decision. However, the BIA then granted Ramos's motion to reopen and concluded that, because "operating a vehicle" does not necessarily require the intentional act of "driving," a conviction under the Massachusetts statute encompasses a broad range of offenses and does not necessarily require that the defendant have committed an offense involving a substantial risk of the use of force. The BIA therefore found that this case was distinguishable from Matter of Puente, where the BIA had found that a felony DUI conviction constituted a "crime of violence" because the act of driving under the influence necessarily entailed a substantial risk of the use of force. Because the Massachusetts statute encompassed a broader range of offenses than just "driving," the BIA concluded that the INS had not established that Ramos had committed a "crime of violence" such as to constitute an aggravated felony.

Subsequently, the INS filed a motion to reconsider the decision, submitting that additional information included in the judgment of conviction established that Ramos was in fact driving under the influence when he committed the offense. The INS contended that the case therefore was controlled by the BIA's prior decisions in Matter of Puente and Matter of Magallanes.

In denying the INS's motion, the BIA overruled Puente and Magallanes, noting that most circuits that have considered the issue have rejected the contention that a crime requiring only negligence, or with no intent requirement at all, can be considered a "crime of violence," although the circuits differ as to whether "recklessness" without more is sufficient to establish a "crime of violence" (for further discussion of circuit court cases on this issue, see e.g., "Three Circuit Courts Rule Felony DUI Conviction Not 'Aggravated Felony,'" Immigrants' Rights Update, Aug. 31, 2001, p. 12). In circuits that have ruled on this issue, the BIA will now follow the law of the circuit. In circuits in which the federal court of appeals has not decided the issue, the BIA will consider a state DUI offense to constitute a "crime of violence" only if a conviction under the statute requires a level of criminal intent of at least "recklessness."

Matter of Ramos, 23 I. & N. Dec. 336, Int. Dec. 3468 (BIA Apr. 4, 2002).