Crimes of Violence in an Immigration/Deportation Case

Immigration proceedings involve complex steps and difficult legal issues. Prior convictions for crimes further add to the difficulty of becoming a legal citizen. If an immigrant has a prior conviction for a violent crime, the government may block entry into the country by enhancing the crime of unlawful or illegal entry into the country. The issue of what constitutes a crime of violence in an immigration or deportation case is answered by the Fifth Circuit Court of Appeals in U.S. v. CORTEZ-ROCHA.

Cesar Cortez pled guilty to the crime of unlawful residence in the United States. When a person is found guilty of this crime, the court has the ability to increase the penalty for the crime if the accused has committed a “crime of violence” in the past.

What is a Crime of Violence?

Texas law defines a crime of violence as: “murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any offense under federal, state, or local law that has as an element the use, attempted use, or threatened use, of threatened use of physical force against the person of another.” A conviction under any of these crimes requires a 16-level increase in the offense level of the accused. A 16-level increase increases the level of punishment for an immigrant by several years.

In the CORTEZ-ROCHA case, the defendant received a 77-month sentence for being in the country illegally compounded by the decade-old aggravated assault charge. Cortez-Rocha appealed the court’s designation of his crime as a “crime of violence.” The main question is whether or not aggravated assault meets the legal requirements for a crime of violence under Texas law.

What is Aggravated Assault?

The Court compared Texas’s definition of aggravated assault with the general description of aggravated assault found described in the dictionary and penal code. Cortez-Rocha’s original conviction did not state specific elements of the crime, but both parties agreed that Texas Penal Code 22.01 covered the crime sufficiently. The court listed the different ways of committing aggravated assault as committing an assault and 1) causing serious bodily injury to another; 2) threatening another with a deadly weapon or threatening or causing bodily injury to an officer of the peace; or 3) if a person uses a deadly weapon in conjunction with any assault.

Because Cortez-Rocha’s 1997 conviction carried no mention of a deadly weapon, the court needed to find that Cortez met all elements of aggravated assault in order to find that he committed a crime of violence. In this case, the court held that a crime of violence in an immigration proceeding required a showing of force during the crime. Because the 1997 court ruling did not state a specific cause of action, Cortez-Rocha was not necessarily charged with a crime involving force, and therefore, his crime could not be characterized as a crime of violence.

Guest and Gray Law Firm is a full service civil and criminal defense law firm serving the entire DFW Metroplex including Dallas, Kaufman, Rockwall and surrounding counties. Our main office is in Forney, Texas where we have served the community since 1967. We also have office locations in Rockwall and Kaufman, Texas. Our team of lawyers is ready to help with any immigration law concern you have.

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