Ninth CIrcuit Finds that NV Conviction for Attempted Battery with Substantial Bodily Harm is Crime of Violence

The Ninth Circuit has determined that a Nevada conviction for attempted battery with substantial bodily harm is a crime of violence under the sentencing guidelines because it requires the defendant to have a specific intent both to commit battery and to bring about substantial bodily harm. Nevada defines “substantial bodily harm” as either “(1) [b]odily injury which creates a substantial risk of death or which causes serious, permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ; or (2) [p]rolonged physical pain.”

“When someone intends to inflict prolonged pain, even relatively minor pain, it is highly improbable that they would choose to do so through the use of nonviolent force, which could easily fail to accomplish their goal. And for the same reason, it is equally improbable that Nevada prosecutors would be able to secure convictions for attempted battery with substantial bodily harm in cases in which the defendant tried to use only a touch or other nonviolent force.”

Given the similar definitions of a crime of violence under the sentencing guidelines and in immigration law, this decision could have persuasive impact in immigration litigation.

The full text of United States v. Fitzgerald can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/26/18-10116.pdf

BIA Finds that CA Attempted Voluntary Manslaughter Conviction is Aggravated Felony

The Board of Immigration Appeals (Board) has determined that a California conviction for attempted voluntary manslaughter is a crime of violence aggravated felony, even though the completed offense of voluntary manslaughter is not.  The Board noted that California courts have held that attempted voluntary manslaughter cannot be premised on the theory that a defendant acted with conscious disregard for life, because it would be based on the internally contradictory premise that one can intend to commit a reckless killing.  Instead, a person who commits attempted voluntary manslaughter must act with the specific intent to kill another person.  The specific intent to kill, in turn, necessarily involves the volitional use of force.   Thus, the attempt crime does not suffer form the same overbreadth with respect to mens rea as the completed offense, which can entail reckless conduct.

The full text of Matter of Cervantes Nunez can be found here:

https://www.justice.gov/eoir/page/file/1043666/download

Ninth Circuit Finds that WA Attempted First Degree Murder is a Crime of Violence

The Ninth Circuit has determined that a Washington conviction for attempted first degree murder is a crime of violence under the federal sentencing guidelines.  In so doing, the court affirmed that even a "slight, nonviolent act with the intent to cause another’s death"  would pose a threat of violent force sufficient to satisfy the definition of a crime of violence.  Given the similar definitions of a crime of violence in the sentencing guidelines and the Immigration and Nationality Act, this decision could have persuasive impact in immigration proceedings.

The full text of US v. Studhorse II can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/03/02/16-30299.pdf