Tuesday, November 2, 2010

Teposte v. Holder, 632 F.3d 2049 (C.A. 9)

Teposte v. Holder, 2011 WL  4189302  (C.A. 9); amended: 2011 WL 167037 (C.A. 9)

Teposte was admitted into the United States as a lawful permanent resident (also known as amnesty). One year later he was convicted of Cal. Pen. Code 246, "firing at an inhabited dwelling." The AG filed a removal proceeding. At the immigration hearing the IJ ruled the conviction constituted an "aggravated felony" (crime of violence), a deportable offense, disqualifies cancellation of removal, and ordered deportation; 18 U.S.C. 16 (b). The BIA affirmed.

Federal law defines a crime of violence as "any felony . . . involv[ing] a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." Whether firing at an inhabited dwelling is a "crime of violence" is so obvious that deportation should be automatic. No, the Ninth Circuit panel engages in academic hairsplitting unintelligible to the average person.  The court holds that reckless conduct or gross negligence is insufficient to categorize P.C. 246 as a "crime of violence." Only if the act was committed intentionally does a conviction qualify.  "Recklessness" in htis context is not a crime of violence?

Assuming gross negligence might escape the definition of a "crime of violence," common sense would justify the DA to dismiss the case.

The court admits its holding is restricted by a prior Ninth Circuit case, but another common sense application of an "aggravated felony" awaits the Supreme Court.

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