Kerry Bretz Immigration Law Blog on Lawyers.com

On March 10, 2011, Bretz & Coven, which is a New York City immigration law firm, won a major victory in the U.S. Court of Appeals for the Eleventh Circuit in Accardo v. United States Att’y Gen., 2011 U.S. App. LEXIS 4962 (11th Cir. March 10, 2011), holding that a conviction for extortionate extension of credit under 18 U.S.C. § 892(a) is not categorically an aggravated felony as a crime of violence because it is divisible, encompassing some criminal behavior that falls within the definition of "aggravated felony" and some that does not. The Board of Immigration Appeals had completely bypassed a well-established rule in immigration law that if a criminal statute is divisible, the Board must apply the "modified categorical approach" rather than the "categorical approach." Moreover, the Board had relied on cases that failed to support its use of the categorical approach. The Eleventh Circuit reversed and remanded to the Board to apply the modified categorical approach and determine in the first instance whether Mr. Accardo was actually convicted of an aggravated felony under that approach.

Mr. Accardo is a native and citizen of Italy, who arrived to the United States as a lawful permanent resident in 1976, when he was only one year of age. In February 2007, he pleaded guilty to violating 18 U.S.C. § 892(a) for making an extortionate extension of credit. Extortionate extension of credit is defined as "any extension of credit with respect to which it is the understanding of the creditor and the debtor at the time it is made that delay in making repayment or failure to make repayment could result in the use of violence or other criminal means to cause harm to the person, reputation, or property of any person. 18 U.S.C. § 891(6).

In his plea colloquy, Mr. Accardo admitted that failure to repay him could "result in the use of criminal means to cause harm to her reputation in the community."

The Department of Homeland Security (DHS) initiated removal proceedings, charging that Mr. Accardo was removable pursuant to INA § 237(a)(2)(A)(iii) as an alien who had been convicted of an aggravated felony, specifically, a "crime of violence" as defined by 18 U.S.C. § 16, which constitutes an "aggravated felony" under INA § 101(a)(43)(F). Under 18 U.S.C. § 16, 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) 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.

Immigration Judge Cassidy in Atlanta found that Mr. Accardo had not been convicted of a crime of violence because the convicting statute at issue, 18 U.S.C. 892(a), is a divisible statute in that it contains some offenses that would qualify as an aggravated felony and other offenses that would not. The IJ found that because Mr. Accardo only admitted to threatening to harm a person’s reputation and not making a threat to harm a person or property, he was not convicted of a crime of violence under 18 U.S.C. § 16.

The DHS appealed, and the BIA sustained the appeal and reinstated the removal proceedings. It applied the categorical approach, even though the DHS, the IJ and Mr. Accardo had agreed that the modified categorical approach should be used. The Board concluded that § 892(a) was categorically a crime of violence under both 18 U.S.C. § 16(a) and (b), and it remanded the case to the IJ. On remand, the IJ issued an order of removal. Mr. Accardo again appealed to the Board, which declined to review its earlier decision and dismissed Accardo’s appeal from the order of removal. Mr. Accardo filed a petition for review with the court of appeals for the Eleventh Circuit.

On appeal, the Eleventh Circuit agreed with Mr. Accardo that 18 U.S.C. § 892(a) covers offenses that do not constitute crimes of violence under either § 16(a) or § 16(b) and therefore that the Board erred in applying the categorical approach. As to 18 U.S.C. § 16(a), the Court found that the decisions from other circuits construing the phrase "other criminal means," that the BIA relied on, did not involve potential harm to a debtor’s reputation as a consequence of noncompliance. Thus, it is possible to violate that statutory provision by an understanding that failure to comply with the terms of an extortionate loan could result in harm to the reputation of the debtor through nonviolent but still extra-legal means. As to 18 U.S.C. § 16(b), the Court found that 18 U.S.C. § 892(a) does not invariably "by its nature, involve a substantial risk that physical force against the person or property of another may be used in the course of committing the offense" because every violation of the subsection does not involve the risk that the use of physical force against another will be required.

This case should never have gone all the way up the court of appeals, and it was a waste of the government’s resources to take it that far. Mr. Accardo remained in immigration custody for approximately a year and a half while his case was pending before the Immigration Court and the BIA, until he was physically deported to Italy in December 2009. At about $90 a day, Mr. Accardo’s unnecessary detention cost the U.S. government approximately $50,000. Morever, it must have cost three times that amount to prosecute a frivolous deportation case, take the BIA appeal and defend Mr. Accardo’s petition for review.