These summaries are not intended as legal advice. Please contact a licensed attorney to discuss the specifics of your case.
Viewing entries tagged
assault with a deadly weapon
The Ninth Circuit has determined that a conviction for assault with a deadly weapon or assault with force likely to produce great bodily injury is a crime involving moral turpitude. In so doing, the court has deferred to the Board of Immigration Appeals’ decision in Matter of Wu.
The full text of Safaryan v. Barr can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2020/09/17/16-74039.pdf
The Second Circuit has determined that a New York conviction for second-degree assault with a deadly weapon or dangerous instrument is a crime of violence aggravated felony because “he deadly weapon or dangerous instrument element makes obvious that the statute requires the use of violent force.”
The full text of Singh v. Barr can be found here:
https://cases.justia.com/federal/appellate-courts/ca2/14-1018/14-1018-2019-09-24.pdf?ts=1569335405
The Ninth Circuit has again determined that a California conviction for assault with a deadly weapon, entered before the statute was amended in 2011, is a crime of violence. The court rejected the argument that the statute encompasses negligent conduct. “The essential question is whether assault in California can be committed accidently or whether it requires an intentional use of force. As defined in California, assault ‘requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another.’ We conclude that this definition requires an intentional use of force.”
The full text of US v. Vasquez-Gonzalez can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/22/15-10285.pdf
The Ninth Circuit has determined that a Nevada conviction for assault with a deadly weapon qualifies as a crime of violence under the federal sentencing guidelines because it requires that the defendant placed the victim in fear of bodily harm and thus necessarily entails the use or threatened use of violent physical force against the person of another. "A defendant cannot put a reasonable person in fear of bodily harm without threatening to use ‘force capable of causing physical pain or injury.' When the defendant puts the victim in fear of bodily harm through the use or threatened use of a deadly weapon, the violent nature of the force employed is even more apparent."
The court further determined that a Nevada conviction for robbery is not a crime of violence under the sentencing guidelines because it can be accomplished by instilling fear of injury to property alone.
Finally, the court determined that a Nevada conviction for coercion does not meet the definition of a crime of violence under the sentencing guidelines because the force required is not the violent force required for a crime of violence. In addition, the Nevada Supreme Court has upheld convictions for felony coercion that involved the use or threatened use of physical force against an object, rather than against a person
Given the similarity in the definition of a crime of violence under the sentencing guidelines and in the immigration context, this decision could have persuasive impact in the immigration context. However, it is noteworthy that the definition of a crime of violence in the immigration context includes the use or threatened use of violence against the property of another, and thus, the rationale for why the Nevada robbery conviction does not qualify as a crime of violence under the sentencing guidelines may not carry over into the immigration context.
The full text of US v. Edling can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/08/16-10457.pdf
