Wednesday, January 11, 2006

Singh: "Crime of Violence" and Some Pennsylvania Statutes

Singh v. Gonzales
Filed 01/03/06, No. 04-4261
Singh v. Atty Gen USA

The Third Circuit ruled that a simple assault under Pennsylvania law is a "crime of violence" that can make someone deportable. Recklessly endangering another person under Pennsylvania cannot be a "crime of violence" so it cannot be considered an aggravated felony.

Aggravated felonies hurt an immigrant's chances to remain or to enter the US because extremely harsh rules make it nearly impossible to remain in the country, even if the immigrant has an extremely sympathetic situation or the conviction is extremely old. In this case, the crime in question is not even considered a felony by Pennsylvania. Bizarrely, the courts have ruled that even crimes that a state does not considered to be felonies can be considered aggravated felonies for immigration purposes. That is exactly what happened here with simple assault under Pennsylvania law.

The section of the Pennsylvania simple assault statute that is important in this case said: “A person is guilty of assault if he . . . attempts by physical menace to put another in fear of imminent serious bodily injury.” A crime is a crime of violence if it “has as an element the use, attempted use, or threatened use of physical force against the person or property of another." Here, two requirements were satisfied: (1) specific intent is required (it requires proving the person attempted to do something) and (2) there was physical force (it requires proof of menacing behavior).

The immigrant pointed out cases of simple assault that were pretty innocuous, to show that the statute can convict people who do not commit crimes of violence. But the Third Circuit felt the counter-examples were also crimes of violence, such a woman who ordered police to leave her home and stood within 3-6 feet while cradling a shotgun or a person who brandished and touched a victim with a sword.

In contrast, recklessly endangering someone cannot be a crime of violence because specific intent is not required -- you can be guilty for mere recklessness where you had no intention to put someone in danger. Being reckless means you don't realize the risk you are creating to someone else.


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