IJ: Texas evading arrest by vehicle is not crime of violence aggravated felony

By University of Denver Sturm College of Law

Oct 12, 2009

In a recent case I briefed, an Immigration Judge determined that a conviction for the Texas offense of evading arrest by vehicle does not fall within the crime of violence category of aggravated felony. The Department of Homeland Security argued that the Fifth Circuit’s recent decision in United States v. Harrimon, 568 F.3d 531 (5th Cir. 2009), held that Texas evading arrest does constitute a COV.

Section 101(a)(43)(F) defines a COV according to its definition at 18 U.S.C. § 16. Section 16 of Title 18 of the U.S. Code provides:

The term “crime of violence” means— (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.

Several Texas cases have clearly held that Texas evading arrest, Tex. Penal Code § 38.04, does not involve, as an element, “the use, attempted use, or threatened use of physical force” as required by 18 U.S.C. § 16(a). See, e.g., Alejos v. State, 555 S.W.2d 444, 448 (Tex. Crim. App. 1977); Grant v. State, 970 S.W.2d 22, 25 n.3 (Tex. Crim. App. 1998); Johnson v. State, 634 S.W.2d 695, 695 (Tex. Crim. App. 1982). Evading arrest by vehicle, Tex. Penal Code § 38.04(b), similarly does not involve any use, attempted use, or threatened use of force. See Powell v. State, 206 S.W.3d 142, 143 (Tex. App. 2006). As such, evading arrest by vehicle does not constitute a COV under 18 U.S.C. § 16(a).

In light of Harrimon’s finding that evading arrest by vehicle constitutes a violent felony, the more difficult argument to make was that evading arrest by vehicle does not constitute a COV under 18 U.S.C. § 16(b). I argued that Tex. Penal Code § 38.04(b) does not constitute a COV as defined by 18 U.S.C. § 16(b) because it does not “by its nature, involve[] a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

In the Fifth Circuit, “[a] ‘substantial risk requires a strong probability that the application of physical force during the commission of the crime will occur.’” United States v. Landeros-Gonzales, 262 F.3d 424, 427 (5th Cir. 2001) (quoting United States v. Rodriguez-Guzman, 56 F.3d 18, 20 (5th Cir. 1995)). “'[F]orce,’ as used in the statutory definition of ‘crime of violence,’ is ‘synonymous with destructive or violent force.’” Landeros-Gonzales, 262 F.3d at 426 (quoting Rodriguez-Guzman, 56 F.3d at 20 n.8).

In Harrimon, the Fifth Circuit held that the Texas offense of evading arrest by vehicle, Tex. Penal Code § 38.04(b), constitutes a “violent felony” for purposes of the Armed Career Criminal Act. According to the Harrimon Court,

“For the purposes of the ACCA, a ‘violent felony’ is ‘any crime punishable by imprisonment for a term exceeding one year’ that: . . . (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.’” 568 F.3d at 533 (quoting 18 U.S.C. § 924(e)(2)(B)).

The Harrimon Court performed an extended statutory analysis of clause (ii) of the ACCA’s violent felony definition.

My argument basically consisted of distinguishing the definition of “violent felony” under the ACCA from the COV definition found at 18 U.S.C. § 16(b). First, the ACCA’s definition concerns itself with the “ordinary” or “typical” situation rather than the “necessary entailment” required by the COV definition. See Harrimon, 568 F.3d at 534, 535 (using the term “typical”); at 536 (using the term “ordinary”); Omari v. Gonzales, 419 F.3d 303, 307 (5th Cir. 2005) (explaining the crime of violence definition).

Second, the Harrimon Court’s finding that evading by vehicle involves “serious potential risk” of injury is significantly different than 18 U.S.C. § 16(b)’s requirement of a “strong probability” that force will be used. In support of this conclusion, the Harrimon Court discussed statistics provided by the Department of Justice indicating that “314 injuries (including fatal injuries) to police and bystanders resulted from 7,737 reported pursuits. This amounts to roughly .04 injuries to others per pursuit.” 568 F.3d at 537. I argued that the “strong probability” required by 18 U.S.C. § 16(b) surely is much higher than the roughly 4% injury rate that was sufficient for the Harrimon Court’s finding of serious potential risk under the ACCA.

Third, the Harrimon Court’s conclusion that “physical injury” results in 4% of instances in which a person evades arrest by vehicle is drastically different than the level of physical force required by 18 U.S.C. § 16(b). The Harrimon Court found sufficient that some type of physical injury occasionally occurs. Indeed, as illustrations it referred to driving recklessly and at high speeds. In contrast, 18 U.S.C. § 16(b) requires the use of destructive or violent force. See Landeros-Gonzales, 262 F.3d at 426 (quoting Rodriguez-Guzman, 56 F.3d at 20 n.8). I argued that there is a significant difference between the mere possibility of any physical injury and the use of destructive or violent force.

Combined, these distinctions were enough to convince the IJ that Texas evading arrest by vehicle, Tex. Penal Code § 38.04(b), does not constitute a COV under 18 U.S.C. 16(a) or (b). Removal proceedings were terminated!