United States v. Alvarez

“An alien can show that his due process rights were violated by defects in his deportation proceeding if he shows that his underlying state conviction was not, in fact, an aggravated felony.” United States v. Martinez, 786 F.3d 1227, 1230 (9th Cir. 2015).

Appellant was charged with illegal reentry under 8 U.S.C. § 1326 and the State sought expedited removal based on his prior conviction for a felonious assault. Appellant filed a motion to dismiss the indictment under 8 U.S.C. § 1326(d), which was denied. Appellant claimed his assault conviction  was not a crime of violence and did not qualify as an aggravated felony for purposes of expediting his removal.  Appellant argued the mens rea of “knowledge” in section 2903.13(A) was insufficient in comparison to the common law federal requirement of “specific intent” to qualify his assault conviction as a crime of violence. The Court rejected this argument, stating prior court precedent affirms “knowledge” meets the mens rea based on the § 16(a) crime of violence definition.  Appellant further claimed his prior conviction is not a crime of violence because section 2903.13(A) does not require “violent physical force” and thus “de minimis or offensive contact” would violate the statute.  The Court found section 2903.13(A) penalizes “force capable of causing physical pain or injury”, and held that Ohio courts applied this standard.  Further, the Sixth Circuit affirmed section 2903.13(A) constitutes a crime of violence. Thus, Appellant’s conviction under section 2903.13(A) constituted a crime of violence under § 16(a) that qualified as an aggravated felony, such that his due process rights were not violated. AFFIRMED.