SWEETSER

Citations

• 22 I. & N. Dec. 709

Syllabus

SWEETSER, 22 I&N Dec. 709 (BIA 1999) ID 3390 (PDF) (1) Where the state statute under which an alien has been convicted is divisible, meaning it encompasses offenses that constitute crimes of violence as defined under 18 U.S.C. § 16 (1994) and offenses that do not, it is necessary to look to the record of conviction, and to other documents admissible as evidence in proving a criminal conviction, to determine whether the specific offense of which the alien was convicted constitutes an aggravated felony as defined in section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F) (Supp. II 1996). (2) For purposes of determining whether an offense is a crime of violence as defined in 18 U.S.C. § 16(b), it is necessary to examine the criminal conduct required for conviction, rather than the consequence of the crime, to find if the offense, 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.\ (3) To find that a criminal offense is a crime of violence under 18 U.S.C. § 16(b), a causal link between the potential for harm and the \substantial risk\ of \physical force\ being used must be present. Matter of Magallanes, Interim Decision 3341 (BIA 1998), clarified. (4) An alien convicted of criminally negligent child abuse under sections 18-6-401(1) and (7) of the Colorado Revised Statutes, whose negligence in leaving his stepson alone in a bathtub resulted in the childs death, was not convicted of a crime of violence under 18 U.S.C. § 16(b) because there was not \substantial risk that physical force\ would be used in the commission of the crime.