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Is Utah's Aggravated Assault Statute a Crime of Violence or an Aggravated Felony?

Posted by Christopher Keen | Apr 21, 2022 | 0 Comments

I believe that a plea statement can be crafted that will avoid serious immigration consequences for someone charged with Aggravated Assault.  It will not avoid all problems for all non-US Citizens, such as possible delays when travelling and trying to reenter the country, triggering an additional wait time of five years before one can apply for US Citizenship, and negative discretionary issues.  One may have to defend his plea as well but as can be seen, if done correctly, the plea does not have to result in a finding of aggravated felony.  

 An amended information is highly recommended as the probable cause statement may be problematic.  A PC statement is not required in Utah for a misdemeanor offense.  If the Aggravated Assault is reduced to an attempt,. it will be a Class A Misdemeanor.  Thus no PC statement would be required.  

In addition language can be placed in the plea statement that disavows the wording of the information.  

There are some key wording and provisions that should be in the plea statement.  1.) reckless mens rea.  2.)  the factual basis; 3.) providing for a suspended sentence under 365 days.  The mens rea in 1 is crucial.  So is the factual basis.  If the judge gives 365 days, that is still workable just not as preferred. 

Is Aggravated Assault an Aggravated Felony Crime of Violence?

Try to convince the judge to sentence to 364 or anything below 365 days even if its suspended. 

In order for a crime to be considered an aggravated felony under the crime of violence section of the Immigration and Nationality Act (“INA”), there must be at least a one year sentence.  Even a Class A misdemeanor can be considered an aggravated felony if there is a one year sentence.  United States v. Saenz-Mendoza, 287 F.3d 1011, 1014 n.5 (10th Cir. 2002) (quoting United States v. Robles-Rodriguez, 281 F.3d 900, 903 (9th Cir. 2002).  Even a suspended sentence counts.  8 U.S.C. § 1101(a)(48)(B); see also United States v. Chavez-Valenzuela, 170 F.3d 1038, 1040 (10th Cir. 1999).  So, a 364 suspended sentence is useful to avoid the risk of having this deemed an aggravated felony.  If this is not possible, then see below.

A crime of violence can be an aggravated felony. 

INA §101(a)(43)(F) says that an aggravated felony is “a crime of violence (as defined in section 16 of title 18, but not including a purely political offense) for which the term of imprisonment at … least one year;”

We have to focus on only 16a as 16 b is void for vagueness.  Sessions v. Dimaya, 138 S. Ct. 1204, 200 L. Ed. 2d 549, 2018 U.S. LEXIS 2497, 86 U.S.L.W. 4189, 27 Fla. L. Weekly Fed. S 161, 2018 WL 1800371 (2018)

USCA §16a and b

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) [Caution: In  Sessions v Dimaya (2018, US) 200 L Ed 2d 549, 138 S Ct 1204, the U.S. Supreme Court held this subsection unconstitutionally vague.] 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.

18 USCS § 16

So, a crime that has an element the use, attempted use, or threatened use of physical force against the person or property of another AND has a one-year sentence can be an aggravated felony.  

Reckless Intent and Crime of Violence

The Supreme Court has held that the use of force requirement in 16(a) refers to the “active employment” of force and involves “a higher degree of intent than negligent or merely axccidental conduct.”  Leocal v. Ashcroft, 543 US 1 (2004).  The Tenth Circuit held that even a reckless mens rea, like negligence, cannot support a finding of a crime of violence.  United States v. Zuniga-Soto, 527 F.3d 1110, 1123-24 (10th Cir. 2008) (holding that assaulting a public servant was not a crime of violence because the criminal statute only required recklessness).  Thus if an offense ahs a reckless intent, it cannot be a crime of violence nor an aggravated felony.

Utah specific cases support a plea to recklessness and throwing objects. 

Sometimes Immigration courts and adjudicators need to see that there is a realistic probability of the conduct of the plea supporting a charge. 

In Utah, reckless intent has been found when a man placed a rattlesnake on the shoulders of a two-year old child.  State v. Wessendorf, 113 Utah Adv. 37, 777 P.2d 523, 1989 Utah App. LEXIS 123 (Utah Ct. App.), cert. denied, 117 Utah Adv. 28, 781 P.2d 878 (Utah 1989).

In Utah, swinging a glass with the intent of throwing it against a wall, but hitting the face of someone with it, was aggravated assault.  State in Interest of McElhaney, 579 P.2d 328, 1978 Utah LEXIS 1302 (Utah 1978).

Thus, throwing picture frames recklessly can sustain an aggravated assault charge in Utah, and is not an aggravated felony.

About the Author

Christopher Keen

As the founding attorney for Keen Law Offices, LLC, J. Christopher Keen received a Bachelor of Arts degree in History from Brigham Young University. He then went on to receive his Juris Doctor degree from J. Reuben Clark Law School at Brigham Young University. Since that time, he has been admitted to practice before all of the state courts in Utah.


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