On June 10, the U.S. Supreme Court issued its decision in Borden v. United States, ruling that a criminal offense with a reckless mental state does not qualify as a “violent felony.” While Borden is not an immigration case, it has major immigration applications.
In 2018, the Tenth Circuit Court of Appeals had ruled that a recklessly committed offense could be classified as a crime of violence in United States v. Bettcher, 911 F.3d 1040 (10th Cir. 2018). Since Bettcher, it was unclear whether a conviction such as Colorado Third Degree Assault—requiring recklessly causing bodily injury, however slight—could be classified as a crime of violence and therefore trigger deportability under section 237(a)(2)(E) of the Immigration and Nationality Act (INA) where there was a domestic violence tag on the case.
Now, in the wake of Borden, convictions for Colorado Third Degree Assault cannot trigger deportability as crimes of moral turpitude or as crimes of domestic violence. Not only will the Borden decision protect certain noncitizens with Third Degree Assault convictions from deportability, but it will also preserve the ability to apply for relief from removal in the form of cancellation of removal under section 240A(b) of the INA.
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