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Matter of Luis Manuel GUERRERO, Respondent

Decided November 9, 2011

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) Because solicitation to commit a “crime of violence” is itself a crime of violence under

18 U.S.C. § 16(b) (2006), a felony conviction for solicitation to commit assault with

a dangerous weapon in violation of section 11-1-9 of the General Laws of Rhode Island

is for a crime of violence and therefore an aggravated felony under section 101(a)(43)(F)

of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F) (2006), where

a sentence of 1 year or more has been imposed.

(2) The offense of solicitation is not an aggravated felony under section 101(a)(43)(U)

of the Act because it is not an attempt or conspiracy.

FOR RESPONDENT: Damon M. D’Ambrosio, Esquire, Johnston, Rhode Island

BEFORE: Board Panel: PAULEY, GREER, and MULLANE, Board Members.

PAULEY, Board Member:

In a decision dated May 12, 2011, an Immigration Judge found the

respondent removable under section 237(a)(2)(A)(iii) of the Immigration and

Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2006), as an alien convicted

of an aggravated felony. The respondent has appealed from that decision. The

appeal will be dismissed.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of the Dominican Republic who was

admitted to the United States as a lawful permanent resident on or about

May 12, 1980. He was convicted on September 10, 2009, of criminal

solicitation in violation of section 11-1-9 of the General Laws of Rhode Island.

According to the record of conviction, the respondent entered a plea

of nolo contendere to count 1 of the criminal information, which charged that

he “solicit[ed] [another individual] to commit the crime of assault with

a dangerous weapon.” He was sentenced to a 10-year term of imprisonment

but received credit for 2 years of time served, with the remaining 8 years
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1 The Notice to Appear (Form I-862) charged that the respondent’s conviction was for

an aggravated felony under section 101(a)(43)(U) of the Act. The DHS subsequently lodged

an additional charge under section 101(a)(43)(F) based on the same solicitation conviction.

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suspended. He was also placed on probation for 8 years, ordered to have

no contact with the victim, and assessed $450.

Based on this conviction, removal proceedings were initiated against

the respondent, charging that he is removable as an alien convicted of an

aggravated felony. Specifically, the Department of Homeland Security

(“DHS”) asserted that the respondent’s criminal solicitation offense is an

aggravated felony under sections 101(a)(43)(F) and (U) of the Act, 8 U.S.C.

§§ 1101(a)(43)(F) and (U) (2006), that is, it qualifies as a crime of violence

for which the term of imprisonment is at least 1 year and as an attempt

or conspiracy to commit an offense defined as an aggravated felony in the

Act.1 The respondent filed a motion to terminate the proceedings, arguing that

his crime did not qualify as an aggravated felony. The Immigration Judge

denied the respondent’s motion to terminate and found him removable

as charged.

II. ISSUE

On appeal, the respondent contends that the Immigration Judge erred

in concluding that his criminal solicitation offense is an aggravated felony.

We agree that solicitation is not an aggravated felony under section

101(a)(43)(U) of the Act, which includes within the aggravated felony

definition “an attempt or conspiracy to commit” an aggravated felony offense

described in the Act. Solicitation is different from attempt and conspiracy

and is not covered under this section. See generally Matter of Vo, 25 I&N

Dec. 426 (BIA 2011). Therefore, the only issue before us is whether the

respondent’s conviction for solicitation to commit assault with a dangerous

weapon is for a crime of violence under 18 U.S.C. § 16 (2006). We review

this question of law de novo. 8 C.F.R. § 1003.1(d)(3)(ii) (2011).

III. APPLICABLE LAW

The term “crime of violence” is defined in 18 U.S.C. § 16 as follows:

(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.
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Section 11-1-9 of the General Laws of Rhode Island provides:

Soliciting another to commit a crime

Every person who solicits another to commit or join in the commission of a felony

under the laws of this state shall be guilty of a felony and upon conviction shall

be subject to the same fine and imprisonment as pertain to the offense which the

person did solicit another to commit, provided that imprisonment for the solicitation

shall not exceed ten (10) years.

Section 11-5-2(a) of the General Laws of Rhode Island provides:

Felony assault

Every person who shall make an assault or battery, or both, with a dangerous

weapon, or with acid or other dangerous substance, or by fire, or an assault or battery

which results in serious bodily injury, shall be punished by imprisonment for not

more than twenty (20) years.

IV. ANALYSIS

To determine whether an offense constitutes a “crime of violence,” the

United States Court of Appeals for the First Circuit, in whose jurisdiction this

case arises, employs a two-step categorical approach. See United States

v. Herrick, 545 F.3d 53, 56 (1st Cir. 2008); see also United States v. Richards,

456 F.3d 260, 262-63 (1st Cir. 2006) (citing Taylor v. United States, 495 U.S.

575, 600-02 (1990)) (discussing the term “violent felony” in the Armed

Career Criminal Act). Pursuant to the first step, if a violation of the statute

necessarily involves every element of a crime of violence, the conviction itself

establishes that the offense is a crime of violence. See United States

v. Herrick, 545 F.3d at 56.

Under section 11-1-9 of the General Laws of Rhode Island, an offense may

be committed through the solicitation of any “felony.” Where, as here, the

statute of conviction is broad enough to encompass both acts that would

constitute a “crime of violence” and those that would not, we must apply the

second step of the categorical approach. See United States v. Herrick,

545 F.3d at 56. Under this step, we consider whether the record of conviction

reveals that all the elements of a “crime of violence” have been established.

In so doing, we must restrict our review to the record of conviction.

“Typically, the record includes the charging document, jury instructions,

and verdict form, or in the context of a plea, the written plea agreement

and the transcript of the change-of-plea colloquy.” Id. (citing Shepard

v. United States, 544 U.S. 13, 26 (2005)).
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2 The Ninth Circuit also concluded that because neither of the California solicitation

offenses at issue included as an element the actual “use, attempted use, or threatened use

of physical force against the person or property of another,” those offenses did not constitute

crimes of violence under 18 U.S.C. § 16(a). Prakash v. Holder, 579 F.3d at 1036.

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The record of conviction in this case consists of the judgment, a criminal

information alleging two counts, and the respondent’s request to enter a plea

of nolo contendere to count 1 of that charging document. We conclude

that the respondent’s conviction record shows that he entered a plea

of nolo contendere to the charge that he solicited another person to commit the

crime of assault with a dangerous weapon in violation of section 11-1-9 of the

General Laws of Rhode Island.

Rhode Island has not defined the term “assault” legislatively, so the offense

is defined by reference to the common law. See State v. Jackson, 752 A.2d 5,

9 (R.I. 2000). The Supreme Court of Rhode Island has defined assault

as an “unlawful attempt or offer, with force or violence, to do a corporal

hurt to another, whether from malice or wantonness.” See, e.g., State

v. McLaughlin, 621 A.2d 170, 177 (R.I. 1993) (emphasis added). The First

Circuit determined that “under Rhode Island law there can be no assault

without the presence of physical force.” Lopes v. Keisler, 505 F.3d 58, 63 (1st

Cir. 2007). It therefore concluded that the offense of “assault” as defined

by Rhode Island law qualifies as a crime of violence under 18 U.S.C. § 16(a)

and, consequently, is an aggravated felony under section 101(a)(43)(F) of the

Act. Id. Furthermore, the First Circuit has specifically held that the offense

of assault with a dangerous weapon in violation of section 11-5-2 of the

General Laws of Rhode Island is a “crime of violence” and therefore qualifies

as an aggravated felony under section 101(a)(43)(F). Almon v. Reno, 214 F.3d

45, 46 & n.3 (1st Cir. 2000).

The question before us is whether soliciting another to commit assault with

a dangerous weapon, which is a crime of violence, also qualifies as a crime

of violence. We are not aware that this question has been specifically

addressed by the First Circuit. However, other courts have found that

“solicitation of an offense that otherwise meets the definition of ‘crime

of violence’ is also a crime of violence.” United States v. Cornelio-Pena, 435

F.3d 1279, 1288 (10th Cir. 2006); see also Prakash v. Holder, 579 F.3d 1033,

1036-37 (9th Cir. 2009) (finding that because there is a substantial risk that

the solicitation of rape and of assault will lead to violence, it is a crime

of violence under 18 U.S.C. § 16(b)).2 We agree. “Solicitation seeks to induce

the commission of a crime, and thus is the original, direct cause of the crime

if it is subsequently committed.” United States v. Cornelio-Pena, 435 F.3d

at 1287-88; see also Ng v. Att’y Gen. of U.S., 436 F.3d 392, 397 (3d Cir. 2006)

(concluding that solicitation to commit murder “poses a substantial risk that
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physical force will be used against another,” regardless of whether the actual

use of force ever occurs).

As noted by the court in Prakash v. Holder, 579 F.3d at 1036, “Section

16(b) turns on the risk of physical force as a consequence of the criminal

conduct at issue, not on the timing of the force.” Furthermore, the “risk

of violence is created and exists from the time of the solicitation.” Id. at 1037.

Applying the court’s rationale to the matter before us, we find that although

the respondent’s solicitation offense “can be committed without the use

of force and before any actual force is used, this does not diminish the

substantial risk of violence that solicitation of . . . assault inherently presents.”

Id. (emphasis added). We further concur that “for the purpose of determining

whether the offense of solicitation is a crime of violence, whether there

is a substantial risk that physical force will be used in the course of committing

the offense properly extends to the intended result of the solicitation.” Id.

In this regard, we point out that to obtain a conviction for criminal solicitation

under section 11-1-9 of the General Laws of Rhode Island, the State must

show that the accused intended that the solicited crime, in this case assault

with a dangerous weapon, would be committed. See State v. Crow, 871 A.2d

930, 935 (R.I. 2005). And as previously noted, the First Circuit has

specifically found that assault offense to be a crime of violence aggravated

felony. Almon v. Reno, 214 F.3d at 46.

In a similar context, it has been determined that a statute punishing the

possession of a firearm with intent to use it against another meets the

requirements for a crime of violence aggravated felony because, while the

offense of possession is technically complete at the time of the mere

possession itself, the language “in the course of committing the offense”

in 18 U.S.C. § 16(b) encompasses the intended completion of the offense. See

Henry v. Bureau of Immigration and Customs Enforcement, 493 F.3d 303,

308-10 (3d Cir. 2007) (stating that if someone intends to use physical force,

there is a substantial risk that physical force may be used, and that proof of the

intent element creates the substantial risk that physical force will be used

during the commission of the offense).

This is consistent with the Supreme Court’s statement in Leocal v. Ashcroft,

543 U.S. 1, 10 (2004), that burglary is a “classic example” of a crime

of violence. In so observing, the Court noted that “burglary, by its nature,

involves a substantial risk that the burglar will use force against a victim

in completing the crime.” (Emphasis added.) Just as a substantial risk might

well not exist when a burglar first steps onto a property with the requisite

intent to steal or commit some other crime within, so too the fact that

a substantial risk may not exist at the time of the initial solicitation to commit

a violent crime itself does not insulate the solicitation offense from being

found to involve a substantial risk of the use of force when the crime
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is completed. In short, there is an important distinction between when

an offense is complete and when it is completed. See generally United States

v. Wechsler, 392 F.2d 344, 346-47 (4th Cir. 1968).

Finally, we agree with the reasoning of the Prakash court, which

persuasively rejected assertions that by expressly including the inchoate

offenses of attempt and conspiracy in section 101(a)(43)(U) of the Act,

Congress intentionally excluded solicitation from the definition of an

aggravated felony under the subparagraphs that come before it, and that

interpreting section 101(a)(43)(F) to include inchoate offenses allows courts

to circumvent section 101(a)(43)(U), rendering that provision a nullity.

See Prakash v. Holder, 579 F.3d at 1038-39.

V. CONCLUSION

We conclude that the respondent was convicted of criminal solicitation,

a felony offense for which he was sentenced to a term of imprisonment

of at least 1 year, which qualifies as a crime of violence under 18 U.S.C.

§ 16(b) and therefore an aggravated felony under section 101(a)(43)(F) of the

Act. He is consequently removable under section 237(a)(2)(A)(iii) of the Act.

Accordingly, the respondent’s appeal will be dismissed.

ORDER: The appeal is dismissed.