United States District Court, S.D. New York
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, ...