Definition of Crime of Violence Under 18 U.S.C. §16(b) is Unconstitutional

      The Third Circuit ruled that the definition of crime of violence under 18 U.S.C. § 16(b) is unconstitutionally vague, and therefore the Petitioner’s prior conviction did not constitute a crime of violence.

      In Baptiste v. Attorney General, 841 F.3d 601(3d Cir. 2016), the Third Circuit first analyzed the New Jersey aggravated assault statue noting that it covered a “wide array of conduct.”  The appellate court further noted that a defendant could be convicted under this law based on: (1) intentional use of force, (2) conduct that presented a substantial risk he or she would use force or (3) conduct that presented no risk of intentional use of force.  The result was a defendant could be convicted under the same statute “for conduct as dissimilar as an intentional act of physical violence (first category of conduct) and drunk driving causing accidental injury (third category of conduct).”  Ultimately, the Third Circuit concluded that reckless second-degree aggravated assault, in “the ordinary case,” creates a substantial risk of intentional use of force and is therefore categorically a crime of violence under § 16(b).
 
      However, due to the holding in Johnson v. United States, 135 S.Ct. 2551 (2015), the Third Circuit then went on to find § 16(b) was void for vagueness under the Due Process Clause, joining the Sixth, Seventh, Ninth and Tenth Circuits, all of which have previously found §16(b) unconstitutionally vague and invalid.  Therefore, the aggravated assault conviction was not a crime of violence. 

      Nevertheless, Petitioner was still found to be removable because the crime of reckless second-degree aggravated assault is a crime involving moral turpitude.