BIA Finds California Assault with Intent to Commit a Felony Is a Crime of Violence

The Board of Immigration Appeals (BIA or Board) held in Matter of Ramon Martinez, 25 I. & N. Dec. 571 (B.I.A. July 15, 2011), that a violation of § 220 of the California Penal Code (assault with intent to commit a felony) is categorically a crime of violence under 18 USCA § 16(a) and (b) (2006). Cite as 25 I&N Dec. 571 (BIA 2011)

The respondent, a native and citizen of Honduras, was admitted to the U.S. on April 26, 1991, as an immigrant. On March 7, 1994, he was convicted of assault with intent to commit a felony in violation of Cal. Penal Code § 220. Based on this conviction, removal proceedings against the respondent were initiated, charging that he is removable under INA § 237(a)(2)(A)(iii) [8 USCA § 1227(a)(2)(A)(iii)] (2006) as an alien convicted of an aggravated felony.

In 1994, when the respondent committed his offense, Cal. Penal Code § 220 provided that:

Every person who assaults another with intent to commit mayhem, rape, sodomy, oral copulation, or any violation of Section 264.1 [acting in concert with another person to commit, by force or violence, rape or penetration of genital or anal openings by foreign object, etc.], 288 [lewd or lascivious acts with a child under age 14] or 289 [penetration of genital or anal openings by foreign object, etc.] is punishable by imprisonment in the state prison for two, four, or six years.

The immigration judge (IJ) found that the respondent was convicted of assault with intent to commit rape, a *1757 crime of violence under 18 USCA § 16 for which the term of imprisonment was at least one year and hence an aggravated felony under INA § 101(a)(43)(F) [8 USCA § 1101(a)(43)(F)]. Consequently, the IJ ordered the respondent removed to Honduras. The respondent appealed to the Board, contending that his conviction was not for a crime of violence.

In an opinion delivered by Board Member Edward Grant for the panel, which included Board Members Neil P. Miller and Garry D. Malphrus, the Board found that it was unclear from the conviction records whether the respondent was, in fact, convicted of assault with intent to commit rape as opposed to one of the other offenses enumerated in § 220 and that the respondent's plea was obtained pursuant to People v. West, 477 P.2d 409 (Cal. 1970), which meant that he admitted a violation of § 220 but did not specify which predicate offense he intended to commit. However, the Board concluded that, even if the record did not establish that the respondent was convicted of assault with intent to commit rape, his conviction under § 220 was nevertheless for a categorical “crime of violence” in its own right under both 18 USCA § 16(a) and 18 USCA § 16(b).

The Board explained that, under 18 USCA § 16(a), an offense is deemed to be 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,” that the phrase “use of physical force” means the use of violent force, and that Cal. Penal Code § 220 requires that an assault be committed with a specific intent to use whatever force is necessary to complete the object offense against the will of the victim. [FN80] The Board also pointed out that, because the accused must intend to accomplish the object offense against the will of the victim, § 220 does not cover instances in which the victim “consents” in some sense to physical contact; rather, the statute encompasses only those offenses in which the victim's will is overcome. Moreover, the Board stressed, the statute punishes “assault with intent to commit” one of the listed offenses, which “clearly does not describe a consensual act.” The Board conceded that, because some victims may prove unable to effectively resist the offender, § 220 could be violated without actual violent force being used, but declared that every violation of § 220 has as an element at least the “attempted” or “threatened” use of such force against the victim, which are alternative elements to the actual use of force under 18 USCA § 16(a). Thus, the Board concluded, a violation of § 220 is categorically a crime of violence under 18 USCA § 16(a).

For similar reasons, the Board found that a violation of Cal. Penal Code § 220 is also a crime of violence under 18 USCA § 16(b), which encompasses “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense,” that is, “that the use of physical force against another might be required in committing the crime.” Since the offense under § 220 (a felony under both California and federal law) requires an assault coupled with the specific intent to use whatever force is necessary to complete the object offense against the will of the victim, it always entails a “substantial risk” that its consummation may involve the intentional use of violent physical force against the victim, either to accomplish the initial assault or to overcome the victim's will or both. Therefore, the Board held, a violation of § 220 is a categorical crime of violence under 18 USCA § 16(b).

Having concluded that the respondent's conviction was for an aggravated felony under INA § 101(a)(43)(F), the Board found him removable as charged and ineligible for a waiver under INA § 212(c) [8 USCA § 1182(c)] because the crime of violence aggravated felony category has no statutory counterpart in the grounds of inadmissibility under INA § 212(a) [8 USCA § 1182(a)]. Further, the Board found the respondent ineligible for voluntary departure because he is deportable under INA § 237(a)(2)(A)(iii) [8 USCA § 1227(a)(2)(A)(iii)] as an alien convicted of an aggravated felony, INA § 240B(b)(1)(C) [8 USCA § 1229c(b)(1)(C)]. Consequently, the respondent's appeal was dismissed.

See Matter of Velasquez, 25 I. & N. Dec. 278, 282 (B.I.A. 2010) (following Johnson v. U.S., 130 S. Ct. 1265, 1271 (2010)). Matter of Velasquez is examined in 87 Interpreter Releases 1474 (July 26, 2010). Johnson v. U.S. is examined in 87 Interpreter Releases 643 (Mar. 22, 2010).

See People v. Maury, 68 P.3d 1, 44 (Cal. 2003); People v. Davis, 896 P.2d 119, 143 (Cal. 1995); People v. Dillon, 95 Cal. Rptr. 3d 449, 459 (1st Dist. 2009) (stating that § 220 requires “not only the specific intent to commit the underlying sexual act, but a specific intent to commit that act without the consent of the victim”); People v. Soto, 141 Cal. Rptr. 343, 349 (1st Dist. 1977) (noting that a conviction requires proof of “the assault and an intent on the part of defendant to use whatever force is required to complete the sexual act against the will of the victim”).

See People v. Dillon, 95 Cal. Rptr. 3d at 459.

Leocal v. Ashcroft, 543 U.S. 1, 10 (2004).