Monday, August 15, 2005

Popal: PA assault not an aggravated felony

Filed 07/29/05, No. 04-2048
Popal v. Atty Gen USA
(Popal v. Gonzales)
Precedential decision

The Third Circuit overturned the BIA and ruled that someone who is guilty of simple assault under Pennsylvania law is not deportable.

For a brief overview, in 1996 Congress passed a law greatly expanding what is categorized as a so-called aggravated felony. It's clear that mere misdemeanors that state legislatures say are not felonies can be encompassed in the very broad definition of "aggravated felonies." If someone is deemed to be guilty (or admits committing) an aggravated felony, the person is deportable and Congress has ruled out nearly every avenue immigrants are offered to avoid deportation. It is a complicated area, so you should consult with an attorney if you have a specific question.

Getting back to Mr. Popal, he was convicted of misdemeanor assault in Pennsylvania and sentenced to 4-23 months. The issue was whether the crime was an aggravated felony based on the theory that a crime involving the use of physical force is a crime of violence type of aggravated felony.

It's clear that in deciding whether a conviction is an aggravated felony, you must review the criminal statute involved, not the particular actions taken by the immigrant in his case. A conviction will only be an aggravated felony if each part of the relevant statute would be considered an aggravated felony. Here, it was clear that the Pennsylvania statute criminalized conduct that was intentional or reckless. Therefore, the question is whether a reckless assault could be considered an aggravated felony as a crime of violence.

As early as 1992, the Third Circuit ruled that a misdemeanor under state law cannot be an aggravated felony if it punishes reckless conduct. In 2004, the U.S. Supreme Court adopted this approach in Leocal v. Ashcroft, 543 U.S. —, 125 S. Ct. 377, 381 (2004). Therefore, the Pennslvania misdemeanor that punished reckless conduct was not an aggravated felony.


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