GUERRERO, 25 I&N Dec. 631 (BIA 2011)

Cite as 25 I&N Dec. 631 (BIA 2011) Interim Decision #3732
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Matter of Luis Manuel GUERRERO, Respondent
Decided November 9, 2011
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) Because solicitation to commit a “crime of violence” is itself a crime of violence under
18 U.S.C. § 16(b) (2006), a felony conviction for solicitation to commit assault with
a dangerous weapon in violation of section 11-1-9 of the General Laws of Rhode Island
is for a crime of violence and therefore an aggravated felony under section 101(a)(43)(F)
of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F) (2006), where
a sentence of 1 year or more has been imposed.
(2) The offense of solicitation is not an aggravated felony under section 101(a)(43)(U)
of the Act because it is not an attempt or conspiracy.
FOR RESPONDENT: Damon M. D’Ambrosio, Esquire, Johnston, Rhode Island
BEFORE: Board Panel: PAULEY, GREER, and MULLANE, Board Members.
PAULEY, Board Member:
In a decision dated May 12, 2011, an Immigration Judge found the
respondent removable under section 237(a)(2)(A)(iii) of the Immigration and
Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2006), as an alien convicted
of an aggravated felony. The respondent has appealed from that decision. The
appeal will be dismissed.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of the Dominican Republic who was
admitted to the United States as a lawful permanent resident on or about
May 12, 1980. He was convicted on September 10, 2009, of criminal
solicitation in violation of section 11-1-9 of the General Laws of Rhode Island.
According to the record of conviction, the respondent entered a plea
of nolo contendere to count 1 of the criminal information, which charged that
he “solicit[ed] [another individual] to commit the crime of assault with
a dangerous weapon.” He was sentenced to a 10-year term of imprisonment
but received credit for 2 years of time served, with the remaining 8 yearsCite as 25 I&N Dec. 631 (BIA 2011) Interim Decision #3732
1 The Notice to Appear (Form I-862) charged that the respondent’s conviction was for
an aggravated felony under section 101(a)(43)(U) of the Act. The DHS subsequently lodged
an additional charge under section 101(a)(43)(F) based on the same solicitation conviction.
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suspended. He was also placed on probation for 8 years, ordered to have
no contact with the victim, and assessed $450.
Based on this conviction, removal proceedings were initiated against
the respondent, charging that he is removable as an alien convicted of an
aggravated felony. Specifically, the Department of Homeland Security
(“DHS”) asserted that the respondent’s criminal solicitation offense is an
aggravated felony under sections 101(a)(43)(F) and (U) of the Act, 8 U.S.C.
§§ 1101(a)(43)(F) and (U) (2006), that is, it qualifies as a crime of violence
for which the term of imprisonment is at least 1 year and as an attempt
or conspiracy to commit an offense defined as an aggravated felony in the
Act.1 The respondent filed a motion to terminate the proceedings, arguing that
his crime did not qualify as an aggravated felony. The Immigration Judge
denied the respondent’s motion to terminate and found him removable
as charged.
II. ISSUE
On appeal, the respondent contends that the Immigration Judge erred
in concluding that his criminal solicitation offense is an aggravated felony.
We agree that solicitation is not an aggravated felony under section
101(a)(43)(U) of the Act, which includes within the aggravated felony
definition “an attempt or conspiracy to commit” an aggravated felony offense
described in the Act. Solicitation is different from attempt and conspiracy
and is not covered under this section. See generally Matter of Vo, 25 I&N
Dec. 426 (BIA 2011). Therefore, the only issue before us is whether the
respondent’s conviction for solicitation to commit assault with a dangerous
weapon is for a crime of violence under 18 U.S.C. § 16 (2006). We review
this question of law de novo. 8 C.F.R. § 1003.1(d)(3)(ii) (2011).
III. APPLICABLE LAW
The term “crime of violence” is defined in 18 U.S.C. § 16 as follows:
(a) an offense that has as an element the use, attempted use, or threatened use of
physical force against the person or property of another, or
(b) 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.Cite as 25 I&N Dec. 631 (BIA 2011) Interim Decision #3732
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Section 11-1-9 of the General Laws of Rhode Island provides:
Soliciting another to commit a crime
Every person who solicits another to commit or join in the commission of a felony
under the laws of this state shall be guilty of a felony and upon conviction shall
be subject to the same fine and imprisonment as pertain to the offense which the
person did solicit another to commit, provided that imprisonment for the solicitation
shall not exceed ten (10) years.
Section 11-5-2(a) of the General Laws of Rhode Island provides:
Felony assault
Every person who shall make an assault or battery, or both, with a dangerous
weapon, or with acid or other dangerous substance, or by fire, or an assault or battery
which results in serious bodily injury, shall be punished by imprisonment for not
more than twenty (20) years.
IV. ANALYSIS
To determine whether an offense constitutes a “crime of violence,” the
United States Court of Appeals for the First Circuit, in whose jurisdiction this
case arises, employs a two-step categorical approach. See United States
v. Herrick, 545 F.3d 53, 56 (1st Cir. 2008); see also United States v. Richards,
456 F.3d 260, 262-63 (1st Cir. 2006) (citing Taylor v. United States, 495 U.S.
575, 600-02 (1990)) (discussing the term “violent felony” in the Armed
Career Criminal Act). Pursuant to the first step, if a violation of the statute
necessarily involves every element of a crime of violence, the conviction itself
establishes that the offense is a crime of violence. See United States
v. Herrick, 545 F.3d at 56.
Under section 11-1-9 of the General Laws of Rhode Island, an offense may
be committed through the solicitation of any “felony.” Where, as here, the
statute of conviction is broad enough to encompass both acts that would
constitute a “crime of violence” and those that would not, we must apply the
second step of the categorical approach. See United States v. Herrick,
545 F.3d at 56. Under this step, we consider whether the record of conviction
reveals that all the elements of a “crime of violence” have been established.
In so doing, we must restrict our review to the record of conviction.
“Typically, the record includes the charging document, jury instructions,
and verdict form, or in the context of a plea, the written plea agreement
and the transcript of the change-of-plea colloquy.” Id. (citing Shepard
v. United States, 544 U.S. 13, 26 (2005)).Cite as 25 I&N Dec. 631 (BIA 2011) Interim Decision #3732
2 The Ninth Circuit also concluded that because neither of the California solicitation
offenses at issue included as an element the actual “use, attempted use, or threatened use
of physical force against the person or property of another,” those offenses did not constitute
crimes of violence under 18 U.S.C. § 16(a). Prakash v. Holder, 579 F.3d at 1036.
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The record of conviction in this case consists of the judgment, a criminal
information alleging two counts, and the respondent’s request to enter a plea
of nolo contendere to count 1 of that charging document. We conclude
that the respondent’s conviction record shows that he entered a plea
of nolo contendere to the charge that he solicited another person to commit the
crime of assault with a dangerous weapon in violation of section 11-1-9 of the
General Laws of Rhode Island.
Rhode Island has not defined the term “assault” legislatively, so the offense
is defined by reference to the common law. See State v. Jackson, 752 A.2d 5,
9 (R.I. 2000). The Supreme Court of Rhode Island has defined assault
as an “unlawful attempt or offer, with force or violence, to do a corporal
hurt to another, whether from malice or wantonness.” See, e.g., State
v. McLaughlin, 621 A.2d 170, 177 (R.I. 1993) (emphasis added). The First
Circuit determined that “under Rhode Island law there can be no assault
without the presence of physical force.” Lopes v. Keisler, 505 F.3d 58, 63 (1st
Cir. 2007). It therefore concluded that the offense of “assault” as defined
by Rhode Island law qualifies as a crime of violence under 18 U.S.C. § 16(a)
and, consequently, is an aggravated felony under section 101(a)(43)(F) of the
Act. Id. Furthermore, the First Circuit has specifically held that the offense
of assault with a dangerous weapon in violation of section 11-5-2 of the
General Laws of Rhode Island is a “crime of violence” and therefore qualifies
as an aggravated felony under section 101(a)(43)(F). Almon v. Reno, 214 F.3d
45, 46 & n.3 (1st Cir. 2000).
The question before us is whether soliciting another to commit assault with
a dangerous weapon, which is a crime of violence, also qualifies as a crime
of violence. We are not aware that this question has been specifically
addressed by the First Circuit. However, other courts have found that
“solicitation of an offense that otherwise meets the definition of ‘crime
of violence’ is also a crime of violence.” United States v. Cornelio-Pena, 435
F.3d 1279, 1288 (10th Cir. 2006); see also Prakash v. Holder, 579 F.3d 1033,
1036-37 (9th Cir. 2009) (finding that because there is a substantial risk that
the solicitation of rape and of assault will lead to violence, it is a crime
of violence under 18 U.S.C. § 16(b)).2 We agree. “Solicitation seeks to induce
the commission of a crime, and thus is the original, direct cause of the crime
if it is subsequently committed.” United States v. Cornelio-Pena, 435 F.3d
at 1287-88; see also Ng v. Att’y Gen. of U.S., 436 F.3d 392, 397 (3d Cir. 2006)
(concluding that solicitation to commit murder “poses a substantial risk thatCite as 25 I&N Dec. 631 (BIA 2011) Interim Decision #3732
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physical force will be used against another,” regardless of whether the actual
use of force ever occurs).
As noted by the court in Prakash v. Holder, 579 F.3d at 1036, “Section
16(b) turns on the risk of physical force as a consequence of the criminal
conduct at issue, not on the timing of the force.” Furthermore, the “risk
of violence is created and exists from the time of the solicitation.” Id. at 1037.
Applying the court’s rationale to the matter before us, we find that although
the respondent’s solicitation offense “can be committed without the use
of force and before any actual force is used, this does not diminish the
substantial risk of violence that solicitation of . . . assault inherently presents.”
Id. (emphasis added). We further concur that “for the purpose of determining
whether the offense of solicitation is a crime of violence, whether there
is a substantial risk that physical force will be used in the course of committing
the offense properly extends to the intended result of the solicitation.” Id.
In this regard, we point out that to obtain a conviction for criminal solicitation
under section 11-1-9 of the General Laws of Rhode Island, the State must
show that the accused intended that the solicited crime, in this case assault
with a dangerous weapon, would be committed. See State v. Crow, 871 A.2d
930, 935 (R.I. 2005). And as previously noted, the First Circuit has
specifically found that assault offense to be a crime of violence aggravated
felony. Almon v. Reno, 214 F.3d at 46.
In a similar context, it has been determined that a statute punishing the
possession of a firearm with intent to use it against another meets the
requirements for a crime of violence aggravated felony because, while the
offense of possession is technically complete at the time of the mere
possession itself, the language “in the course of committing the offense”
in 18 U.S.C. § 16(b) encompasses the intended completion of the offense. See
Henry v. Bureau of Immigration and Customs Enforcement, 493 F.3d 303,
308-10 (3d Cir. 2007) (stating that if someone intends to use physical force,
there is a substantial risk that physical force may be used, and that proof of the
intent element creates the substantial risk that physical force will be used
during the commission of the offense).
This is consistent with the Supreme Court’s statement in Leocal v. Ashcroft,
543 U.S. 1, 10 (2004), that burglary is a “classic example” of a crime
of violence. In so observing, the Court noted that “burglary, by its nature,
involves a substantial risk that the burglar will use force against a victim
in completing the crime.” (Emphasis added.) Just as a substantial risk might
well not exist when a burglar first steps onto a property with the requisite
intent to steal or commit some other crime within, so too the fact that
a substantial risk may not exist at the time of the initial solicitation to commit
a violent crime itself does not insulate the solicitation offense from being
found to involve a substantial risk of the use of force when the crimeCite as 25 I&N Dec. 631 (BIA 2011) Interim Decision #3732
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is completed. In short, there is an important distinction between when
an offense is complete and when it is completed. See generally United States
v. Wechsler, 392 F.2d 344, 346-47 (4th Cir. 1968).
Finally, we agree with the reasoning of the Prakash court, which
persuasively rejected assertions that by expressly including the inchoate
offenses of attempt and conspiracy in section 101(a)(43)(U) of the Act,
Congress intentionally excluded solicitation from the definition of an
aggravated felony under the subparagraphs that come before it, and that
interpreting section 101(a)(43)(F) to include inchoate offenses allows courts
to circumvent section 101(a)(43)(U), rendering that provision a nullity.
See Prakash v. Holder, 579 F.3d at 1038-39.
V. CONCLUSION
We conclude that the respondent was convicted of criminal solicitation,
a felony offense for which he was sentenced to a term of imprisonment
of at least 1 year, which qualifies as a crime of violence under 18 U.S.C.
§ 16(b) and therefore an aggravated felony under section 101(a)(43)(F) of the
Act. He is consequently removable under section 237(a)(2)(A)(iii) of the Act.
Accordingly, the respondent’s appeal will be dismissed.
ORDER: The appeal is dismissed.