Categorical Approach or Categorical Chaos? A Critical Analysis of the Inconsistencies in Determining Whether Felony DWI Is a Crime of Violence for Purposes of Deportation under 18 U.S.C. 16
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This Note addresses whether felony DWI constitutes a crime of violence for purposes of deportation. Part II of this Note surveys Congress's broad power over immigration and the government's role in deportation. Part III identifies the standard categorical approach to felony DWI offenses employed by both the courts and the Board of Immigration Appeals (BIA) in removal proceedings and analyzes the various conclusions that the courts have reached when interpreting a "crime of violence" under 18 U.S.C. 16(b). Part IV evaluates an apparent departure from the implementation of this categorical approach in Dalton v. Ashcroft, proposing that this departure results from the vagueness of the "crime of violence" definition and the extreme discrepancies in various state determinations of what constitutes a felony DWI. Part V contends, based on current immigration law, that felony DWI is a crime of violence due to the lack of specific intent language in the defining statute. Additionally, Part V proposes an amendment to 18 U.S.C. 16(b) that will define the necessary characteristics of a felony DWI when dealing with noncitizens. Finally, Part VI argues for the adoption of an amendment to refocus the power over immigration to the federal government and establish uniformity in deportation proceedings.
