United States District Court, S.D. New York
February 19, 2015
MUSAFIRI G. KABENGA, Petitioner,
ERIC H. HOLDER, Jr., et al., Respondents.
Amy V. Meselson, Esq., Legal Aid Society, New York, NY, for Petitioner.
Shane P. Cargo, Assistant U.S. Attorney, Southern District of New York, New York, NY, For Respondents.
OPINION AND ORDER
SHIRA A. SCHEINDLIN, District Judge.
On January 2, 2015,  ruled that this Court has jurisdiction to entertain Musafiri Kabenga's petition for a Writ of Habeas Corpus. In that petition, Kabenga challenges his 2012 removal on the theory that the Board of Immigration Appeals ("BIA") misapplied clearly established law, resulting in a "gross miscarriage of justice." If such a miscarriage occurred, Kabenga argues that his 2012 removal should be vacated, and his status as a lawful permanent resident ("LPR") of the United States - which he enjoyed before being removed - should be restored. For the reasons set forth below, Kabenga's habeas petition is GRANTED.
In 2012 - after nearly two decades as an LPR - Kabenga was ordered removable from the United States for committing a "crime of violence." This determination was upheld by the BIA,  and in 2013, Kabenga was removed to the Democratic Republic of Congo.
The conviction underpinning Kabenga's removal - the alleged "crime of violence" - occurred in Dallas, Texas in 2002. At the time, Kabenga was working as a taxi driver. One night, while Kabenga was waiting outside of a night club to pick up a customer who had booked his service, Hector Roa, the security guard at the nightclub who was also an off-duty sergeant with the Dallas Police Department, told Kabenga to move his car. After some back-and-forth, Kabenga attempted to comply with Roa's order by moving, in reverse, out of his parking space. In so doing, Kabenga struck Roa with his car, leading Roa to arrest him. Kabenga was charged with - and pled guilty to - aggravated assault of a public official. This conviction became the predicate of Kabenga's 2012 removal.
Numerous threshold issues are not in dispute. First, Kabenga's 2002 conviction arose under section 22.02(b)(2) of the Texas Penal Code, which requires, inter alia, "intentionally, knowingly, or recklessly caus[ing] bodily injury to another [person]." Second, the legal theory behind Kabenga's 2012 removal was that his 2002 conviction constituted a "crime of violence, " under the federal definition. Third, Kabenga has pointed to case law - which the Government has not contested - establishing that if the 2002 conviction was not a crime of violence, his removal was a "legal nullity" and must be vacated. Fourth, this question must be resolved under the law of the jurisdiction where Kabenga's removal occurred - the Fifth Circuit - as of 2012, when his removal was being adjudicated.
The remaining dispute, then, is whether Kabenga's 2012 conviction was, in fact, a "crime of violence." On this point, the parties disagree both as to the proper legal framework - whether the analysis is driven by the "categorical approach, " or instead by the "modified categorical approach" - as well as the correct result.
III. APPLICABLE LAW
A. Crimes of Violence
Under federal law, a "crime of violence" is defined in two ways. First, a crime of violence can refer to "an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another." Second, a crime of violence can refer to "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." Both definitions incorporate "using force" as an element of the offense.
In Leocal v. Ashcroft,  the Supreme Court held that an alien's conviction under Florida law for "causing... [s]erious bodily injury to another" while driving under the influence ("DUI") was not a "crime of violence" for federal immigration purposes. This was so, the Court reasoned, because the federal definition of "crime of violence" carries an implicit mens rea requirement. Under an "ordinary" construction of the phrase "use physical force, " for someone to "use  physical force against the person or property of another" requires that he have a "higher degree of intent than negligent or merely accidental conduct." Because the Florida statute in question did not specify the level of mens rea necessary to sustain a conviction, it could not qualify as a crime of violence. In reaching this conclusion, the Leocal Court explicitly reserved the question - which is the question presented here - of "whether a state or federal offense that requires proof of reckless[ness]... qualifies as a crime of violence."
B. The Categorical Approach
The analysis in Leocal tacitly affirmed what other Supreme Court opinions (and lower court opinions) have made explicit: "[w]hen the Government alleges that a state conviction qualifies as an aggravated felony' under the [Immigration and Nationality Act ("INA")], [courts] generally employ a categorical approach' to determine whether the state offense is comparable to an offense listed in the INA." Under the "categorical approach, " the question is not what the convicted person actually did, but instead "whether the state statute defining the crime of conviction' categorically fits within the generic' federal definition of a corresponding aggravated felony." Put otherwise, the question is whether, by engaging in conduct sufficient to trigger liability under a state statute, the petitioner must have engaged in conduct that also qualifies as an aggravated felony under federal law. Because this analysis requires "examin[ing] what the state conviction necessarily involved, " courts performing such analysis must "presume that the conviction rested upon [nothing] more than the least of th[e] acts' criminalized" by the state statute."
This aspect of the categorical approach - that it looks to the least of all included offenses - is why the Leocal Court declined to construe the Florida DUI statute as an aggravated felony. Because it was possible to violate the statute through "negligent or merely accidental conduct, " a judge would have no way of knowing - on the face of the conviction - whether physical force was used in the commission of the offense. Thus, it would be inappropriate to treat the offense as a "crime of violence, " because it is possible that someone could be convicted without having "use[d] physical force, " as the federal definition requires.
C. The Modified Categorical Approach
In some settings, the Supreme Court has adopted a more flexible version of the categorical approach - the "modified categorical approach" - which permits courts to review the facts of a conviction, rather than analyzing its formal elements out of context. The modified categorical approach applies exclusively to "divisible statutes" - i.e., state statutes that "refer to several different crimes, ' not all of which qualify as [a] predicate [offense for federal purposes], " and thus require courts to "determine which crime formed the basis of the defendant's conviction." If a statute enumerates multiple types of crimes, courts are allowed to evaluate what happened in order to determine which crime was committed. At the same time, however, the modified categorical approach does not apply to statutes that make it possible to commit the same crime in different ways. If it is clear which crime was committed, courts are prohibited from examining the underlying facts of conviction. In this respect, the "modified approach  acts not as an exception [to the categorical approach], but instead as a tool" for properly applying the categorical approach "when a statute lists multiple, alternative elements, and so effectively creates several different... crimes.'"
If, for example, someone has been convicted under a state burglary statute that criminalizes both (1) breaking into cars and (2) breaking into buildings, the modified categorical approach would be appropriate to determine which offense - breaking into a car or breaking into a building - was the basis for the conviction. From there, however, the analysis would still proceed categorically. Once the court determines which offense sustained the conviction, the next question is whether the elements of that offense correspond, by category, to the relevant federal definition.
The Supreme Court has not spoken definitively as to whether reckless conduct can satisfy the "use of force" standard for designating state convictions as crimes of violence. At the time of Kabenga's removal, however, the law in the Fifth Circuit was clear. Reckless conduct was not enough to constitute use of force. As the court explained in United States v. Chapa-Garza,  the "substantial risk that physical force... may be used' language" - from section 16(b) - "is most reasonably read to refer to intentional conduct, not an accidental, unintended event." In fashioning this definition, the Fifth Circuit thought it important to emphasize the difference between conduct that involves a serious risk of causing physical injury, on the one hand, and conduct that involves the use of physical force, on the other. For example, "a drunk driver risks causing severe injury to others on the road or in the car, but in most cases he or she does not intend to use force to harm others." Similarly, the "crime of reckless endanger[ment]" - the offense at issue in Chapa-Garza - "necessarily involves a serious risk of physical injury to another person, but not necessarily an intent to use force against other persons."
This conclusion tracks "the ordinary meaning of the word use, '" which, as the Fifth Circuit further elaborated in United States v. Vargas-Duran,  typically "contemplates the application of something to achieve a purpose." Thus, the court concluded that use of force' means the act of employing force for any  purpose, ' or to avail oneself of force, '" meaning that "the plain meaning of the word use' requires intent" and the offense of "intoxication assault" under Texas Law (in essence, a DUI) was not a crime of violence.
Chapa-Garza and Vargas-Duran govern this case. Kabenga was convicted under an aggravated assault statute that can be triggered by "recklessly caus[ing] bodily injury to another" through the use of an automobile. In light of this definition, it is possible that Kabenga did no more than put his car into reverse at an incautiously fast speed without checking to see if anyone was behind him. If so, Kabenga would certainly have been guilty of "pay[ing] no regard to [the] probably or possibly injurious consequences" of his conduce - thereby satisfying the traditional requirements of "recklessness" - but he would not have been guilty of "us[ing]... physical force, " as the Fifth Circuit construed that phrase in 2012. As the court reasoned in Chapa-Garza :
while [a] victim of a drunk driver may sustain physical injury from physical force being applied to his body as a result of collision with the drunk driver's errant automobile, it is clear that such force has not been intentionally used' against the other person by the drunk driver at all, much less in order to perpetrate any crime.
The same could be said - word for word - of Kabenga's offense here. Substitute "reckless assault with an automobile" for "drunk driving, " and the reasoning is exactly on point:
while [a] victim of [reckless assault with an automobile] may sustain physical injury from physical force being applied to his body as a result of collision with the  driver's errant automobile, it is clear that such force has not been intentionally used' against the other person by the [perpetrator of reckless assault with an automobile] at all, much less in order to perpetrate any crime.
Under the categorical approach, this ends the inquiry. Because Kabenga's 2002 conviction could have stemmed from solely reckless conduct, it cannot constitute a crime of violence under federal law.
The Government makes no effort to distinguish Chapa-Garza or Vargas-Duran. Instead, it invokes three Fifth Circuit cases decided after Kabenga's removal, which, in the Government's view, set forth a different definition of "crime of violence" than the definition articulated in Chapa-Garza and Vargas-Duran. 
This argument fails. Kabenga's habeas claim depends on whether his removal was "in accord with the law as interpreted at [the] time" - i.e., in 2012 - not whether the immigration authorities happened to correctly divine what the Fifth Circuit would later hold. Furthermore, even if I were to credit this nunc pro tune theory of "law... at [the] time, " none of the cases the Government cites actually stand for the legal proposition that it must establish. Of the three cases, one begs the question,  the second concerns sentencing enhancements under the Armed Career Criminal Act ("ACCA"), which incorporates a less exacting standard than section 16; and the third involves a state statute that requires the violation of "a previously issued order of protection, " which itself satisfies the mens rea requirement of section 16, obviating the requirement that the act of force does the same. In short, the Government's cases do not support its position. And even if they did, they were not the law of the Fifth Circuit in 2012.
In a final effort to rescue its position, the Government argues that Kabenga's conviction should be analyzed under the modified categorical approach, which - according to the Government - yields a different result. This argument is unavailing for two reasons. First, when the BIA initially reviewed Kabenga's removal, it applied the categorical approach. Therefore, to evaluate if the BIA adhered to "the law as interpreted at [the] time, " the question is whether it applied the categorical approach correctly - not whether its result might have been justified under a different legal framework.
Second, the statute under which Kabenga was convicted section 22.02 of the Texas Penal Code - is not amenable to the modified categorical approach in the way the Government suggests. The modified categorical approach is only proper to determine which crime was committed, not to evaluate the crime's underlying facts. Section 22.02 penalizes a variety of things,  including (1) "intentionally, knowingly, or recklessly caus[ing] bodily injury to another, " (2) "intentionally or knowingly threaten[ing] another with imminent bodily injury,  and (3) "intentionally or knowingly caus[ing] physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative." Because these three crimes are distinct, section 22.02 is, indeed, "divisible" in the sense identified by the Supreme Court. But it is divisible only among the crimes themselves - not among the different tiers of mens rea that each crime incorporates. If the documents supporting Kabenga's removal were ambiguous among the offenses proscribed by section 22.02 - if, for example, his indictment listed a conviction under section 22.02 without providing any further detail - it would be appropriate, under the modified categorical approach, to examine the facts of his conviction to decide which offense he actually committed. Once the correct offense is established, however, the analysis must be categorical. Kabenga's conviction under section 22.02 was for "intentionally, knowingly [or] recklessly caus[ing] bodily injury to [Roa]... by striking and dragging [Rm.] with a motor vehicle." The question is whether, in committing this offense, Kabenga necessarily "use[d]... physical force, " as the federal definition of "crime of violence" requires. The answer - for reasons already explained - is no. Kabenga could have perpetrated his offense recklessly, which, under Fifth Circuit precedent, would not have involved the "use of physical force." Accordingly, Kabenga's removal was improper and therefore constituted a "gross miscarriage of justice."
For the foregoing reasons, Kabenga's petition for a Writ of Habeas Corpus is GRANTED, and the Government is ordered to provide Kabenga with a hearing - within thirty days - in accordance with section 1229a of the INA and the Due Process Clause of the United States Constitution. The Clerk of the Court is directed to close this case.