Reckless crimes do not qualify as crimes of violence

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Even though an alien recklessly fired a gun into an apartment, he cannot be removed for committing a crime of violence. However, he could be removed for committing a crime with a firearm.

The Seventh Circuit held that, although it seems “counterintuitive,” only intentional crimes are “crimes of violence” under 18 U.S.C. 16(b); reckless crimes do not qualify.

Judge Kenneth F. Ripple explained, “We believe that accidental and reckless crimes are not the type of ‘violent’ crimes Congress intended to distinguish as worthy of removal.”

In 2005, Leonel Jimenez-Gonzalez pleaded guilty to two counts of criminal recklessness in Indiana state court, after discharging a firearm into an apartment.

The Indiana statute includes behavior that is reckless, knowing, or intentional.

Based on this conviction, and Jimenez-Gonzalez’ status as a lawful permanent resident born in Mexico, removal proceedings were instituted against him.

The immigration judge and Board of Immigration Appeals (BIA) held that criminal recklessness is a crime of violence, and ordered him removed. Jimenez-Gonzalez petitioned for review, and the Seventh Circuit granted the petition.

The court noted that, in Leocal v. Ashcroft, 543 U.S. 1 (2004), the U.S. Supreme Court held that drunken driving did not qualify as a crime of violence under the statute. In Leocal, the court limited its holding to strict liability and negligent crimes, while explicitly reserving the question of whether a reckless crime could. Id., at 13.

Since then, five circuit courts of appeal have expanded Leocal to conclude that reckless crimes aren’t included either. The Seventh Circuit found their reasoning persuasive.

In addition, the Supreme Court recently extended its reasoning in Leocal to cases involving the Armed Career Criminal Act (ACC). Begay v. U.S., 128 S.Ct. 1581 (2008).

In Begay, the court held that drunken driving was not a “violent felony” under the ACCA; the definition of “crime of violence” in sec 16(b) and “violent felony” under the ACCA are slightly different, but similar.

As in Leocal, the Supreme Court declined to expressly hold whether crimes of recklessness would qualify, but limited its holding to strict liability and negligent crimes.

Since Begay, the Seventh Circuit has extended its reasoning to hold that crimes of recklessness are not violent felonies under the ACCA. U.S. v. Smith, 2008WL4182648 (7th Cir., Sept. 12, 2008).

Taking the next step in the case at bar, the court wrote, “Given that Section 16(b) and the residual clause of the ACCA contain similar language and that the Supreme Court applied similar logic in Leocal and Begay, we believe that the reasoning in Smith supports the view that crimes with a mens rea of recklessness are not crimes of violence under Section 16(b).”

The court acknowledged that a different provision of the Immigration and Nationality Act provides for removal of an alien who commits a crime with a firearm. 8 U.S.C. 1227(a)(2)(C).

Under that statute, however, an alien may reapply for readmission after 10 years; an alien removed for a crime of violence is permanently barred.

However, neither the immigration judge nor the BIA relied on this provision, so the court granted the petition seeking review of Jimenez-Gonzalez’s removal order.