These summaries are not intended as legal advice. Please contact a licensed attorney to discuss the specifics of your case.
Viewing entries tagged
Connecticut crimes
The Board of Immigration Appeals has determined that a Connecticut conviction for larceny is not a theft-related aggravated felonies because it includes theft-by-fraud offenses. The Board concluded that the statute is both overbroad and indivisible.
The full text of Matter of Morgan can be found here:
The Second Circuit has determined that a Connecticut conviction for possession intent to sell/transportation/manufacture/offer a controlled substance is an aggravated felony and a controlled substance violation.
The full text of Chery v. Garland can be found here:
The Second Circuit has determined that a Connecticut conviction for possession of a controlled substance with intent to sell is a crime involving moral turpitude. The court reached this conclusion while recognizing that the Connecticut statute criminalized the giving away of a small of a substance.
The full text of Mota v. Barr can be found here:
The Second Circuit has determined that a Connecticut conviction for the unpermitted carrying of a pistol or revolver is not a firearms offense because the state statute criminalizes conduct involving certain antique firearms that is not covered by the federal definition of a firearms offense. “Connecticut criminalizes unlicensed carrying and transportation of loaded antique firearms; the federal definition excludes such conduct.” In addition, “the text of the Connecticut statute excludes only the ‘transporting’ of ‘unloaded’ antique pistols or revolvers from its general prohibition on ‘carrying’ unpermitted pistols and revolvers ‘upon [one’s] person.’ The INA definition of ‘firearm offense,’ in contrast, expressly excludes all conduct involving antique firearms.” The court also rejected the application of the realistic probability test, finding that the plain language of the statute demonstrated its overbreadth.
The full text of Williams v. Barr can be found here:
https://www.ca2.uscourts.gov/decisions/isysquery/0c7b55a5-be7b-43f5-ac93-5989936afec3/28/doc/18-2535_complete_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/0c7b55a5-be7b-43f5-ac93-5989936afec3/28/hilite/
The Second Circuit has determined that a Connecticut conviction for sexual assault in the third degree is a crime of violence because it requires use of a dangerous instrument, actual physical force or violence, or superior physical strength, and thus, necessarily includes the use or threatened use of violent force as an element.
The full text of Kondjoua v. Barr can be found here:
The Second Circuit has determined that a Connecticut first-degree robbery conviction qualifies as a crime of violence. It requires the threatened use of physical force because even the mere display of a firearm during a larceny or immediately thereafter necessarily implies a threat to commit violence.
The full text of Wood v. Barr can be found here:
The Second Circuit has determined that a Connecticut first-degree assault conviction is a crime of violence aggravated felony under 8 USC 16(a). The subsection under which the petitioner was convicted requires that “with intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument.” “Such a crime appears on its face to involve the use of ‘violent’ physical force, as required by Johnson. Furthermore, Villanueva clarifies that just because the physical injury under Connecticut law may be caused by means of a dangerous instrument that is a substance, such as poison, this does not mean that the crime does not require the use of ‘physical force.’ Accordingly, we see no reason not to apply the reasoning of Villanueva and we conclude that Banegas Gomez’s conviction falls squarely within the definition of a crime of violence under § 16(a).”
The Court also determined that jurisdiction properly vests with an immigration court when a Notice to Appear is filed - even if it does not contain the time, date and place of the first hearing - so long as a notice of hearing is subsequently served.
The full text of Banegas Gomez v. Barr can be found here:
The First Circuit has determined that a Connecticut conviction for third-degree larceny qualifies as a theft offense aggravated felony. The petitioner argued that the statute was not a categorical match to the definition of a theft offense because it did not require an intent to permanently deprive the owner of the benefits of ownership and because it included theft of services. The court rejected the first argument, finding that a total deprivation is not required. The court also rejected the second argument, finding that Congress did not intend the definition of a theft offense to be a perfect match to the common-law definition of theft, and noting that at the time theft-related aggravated felonies were added to the INA, the Model Penal Code and half of the states included theft of services in the definition of theft.
Finally, the court declined to rule on whether theft by fraudulent means, which is clearly covered by the statute, precluded a determination that the statute was a categorical match to the generic definition of a theft offense, because the petitioner had failed to raise this argument to the agency.
The full text of De Lima v. Sessions can be found here:
The Second Circuit determined that a conviction for second-degree assault in Connecticut is not categorically a crime of violence in the sentencing context because one subsection of the statute involves reckless conduct. The court found that the statute was divisible, but rejected the District Court's reliance on a prosecutor's statements about the conduct underlying the offense because the defendant was never asked to confirm that rendition of the facts and pled guilty before the prosecutor made his factual assertions. The court was not deterred by the government's argument that the defendant could not have pled guilty to an attempt to commit a reckless assault, as attempt to commit a reckless act is a legally impossible act.
The full text of United States v. Moreno can be found here: http://www.ca2.uscourts.gov/decisions/isysquery/a34d3390-8dd7-42d5-957a-96d8274126ca/3/doc/14-4700_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/a34d3390-8dd7-42d5-957a-96d8274126ca/3/hilite/
In a precedent decision, the First Circuit has determined that a conviction for third degree assault in Connecticut is not a crime of violence. The elements of the state statute are: (i) the intent to cause physical injury to another person and (ii) causing such injury to such person or to a third person. A crime of violence requires the infliction of actual, violent force upon a person. The court reasoned that the statute, by its very terms, does not require violent force, and concluded that the requirement that the victim be injured does not necessarily lead to the conclusion that the defendant must have employed violent force. The court was also unperturbed by the petitioner's inability to locate a state court case in which the defendant was prosecuted under the statute for non-violent conduct, recognizing that not all assault cases have resulted in the generation of publicly available records for the court to review.
The full text of Whyte v. Lynch can be found here: http://media.ca1.uscourts.gov/pdf.opinions/14-2357P-01A.pdf
Last week, the First Circuit addressed whether a conviction for third-degree assault in California could be properly characterized as a crime of violence under 8. U.S.C. section 16(a). Both parties agreed that a conviction under this statute could not be a categorical match to the definition of a crime of violence because it criminalized reckless and negligent conduct, as well as intentional conduct. In the instant case, the Third Circuit determined that use of the modified categorical approach was not appropriate because the record of conviction did not establish under which prong of the statute the petitioner had been convicted. Moreover, the plea colloquy demonstrated that the petitioner disagreed with the prosecutor's version of events, making it even more unclear what conduct the conviction necessarily rested upon. Thus, it could not determine if the conviction rested upon intentional conduct.
The full text of Villanueva v. Holder can be found here: http://media.ca1.uscourts.gov/pdf.opinions/14-1217P-01A.pdf
