On February 23, 2004, the US Supreme Court granted certiorari in Leocal v. Attorney General on the following question:

Whether, in the absence of a mens rea (mental state) of at least recklessness with respect to the active application of force against another, DUI with serious bodily injury is a "crime of violence" under 18 U.S.C. § 16 that constitutes an "aggravated felony" under § 101 of the INA?

The decision could have a significant impact on the enforcement of a USCIS provision that calls for reexaminations of certain aliens with respect to previous drunk driving offenses. You can read about the provision here.

In an unreported decision, the Eleventh Circuit held that Petitioner's conviction for driving under the influence with serious bodily injury, in violation of Florida Statute § 316.193(3)(c)(2), for which he was sentence to a 2 ½ year term of imprisonment was a crime of violence and thus an aggravated felony as defined in INA.

§ 101(a)(43)(F). The Court held that it was bound by its earlier decision in Le v. U.S. Attorney General, 196 F.3d 1352 (11th Cir. 1999) in which another panel of the Eleventh Circuit squarely held that the offense involves the actual use of physical force and therefore met the definition of a crime of violence under 18 U.S.C. § 16(a).

Petitioner contends that the panel's decision in Le was largely based on deference to the BIA's decision in Matter of Puente, 23 I&N Dec. 207 (BIA 1999) (holding that DWI is a crime of violence) which was subsequently withdrawn by Matter of Ramos, 23 I&N Dec. 336 (BIA 2004) (en banc) (holding that simple DUI and DWI without reckless intent are not crimes of violence). Thus, Petitioner submits that the Eleventh Circuit's failure to reconsider Le in light of Matter of Ramos conflicts with the Board's current interpretation of 18 U.S.C. § 16 and decisions of the Second, Fifth, Seventh and Ninth Circuits and also undermines the uniform application of immigration laws.