34 Pages Posted: 6 Dec 2006
Date Written: February 28, 2006
This amicus curiae brief argues that under the logic of Leocal v. Ashcroft, 543 U.S. 1 (2004), and recent circuit court cases, it is clear that Congress intended the term "crime of violence" in 18 U.S.C. Section 16(a) to encompass a narrow array of offenses; the Petitioners' misdemeanor simple assault convictions - which lack an element of force against persons or property - are not among them. Crimes committed with a mens rea of recklessness lack such an element because the use of force requires intent. Also, the elements of injury and force are distinct because one can cause injury without employing force. Nor does the fact that the victim is a person protected by a jurisdiction's family laws place Petitioner's offenses within the definition of the term "crime of moral turpitude;" the latter term encompasses only crimes with an aspect of baseness or depravity that is lacking in the case of simple assault. Finally, amici urge the Ninth Circuit to establish that a federal court will only give effect to a criminal sentence to the extent that the sentence does not exceed the statutory maximum under the law of the sentencing jurisdiction.
Keywords: crime of violence, immigration, crime involving moral turpitude, assault, Leocal
JEL Classification: K19, K14
Suggested Citation: Suggested Citation
Marcus, Lynn and Dobrin, Vicky and Han, Hilary and Rosenberg, Lory D., Brief by Amici Curiae The Immigrant Legal Resource Center; The Florence Immigrant and Refugee Rights Project; The Immigration Law Clinic, Rogers College of Law; Washington Legal Defender Association; and the National Immigration Project of the National Lawyers' Guild in Support of Petitioner, Fernandez-Ruiz v. Gonzales, 466 F.3d 1121 (9th Cir. 2006) (28 Feb. 2006) (February 28, 2006). Arizona Legal Studies Discussion Paper No. 03-74533. Available at SSRN: https://ssrn.com/abstract=949605 or http://dx.doi.org/10.2139/ssrn.949605