Will a Canadian Assault Conviction Bar Justin Bieber from the United States?

Henry Chang | January 29, 2014 in United States Immigration | Comments (0)

UPDATE: Since this article was first published, the Toronto Police Service has issued a press release, which appears to confirm that Justin Bieber was charged with a single count of simple assault.  As a result, even a conviction will not result in his inadmissibility to the United States.  Of course, the media has also just reported that the lab results from Mr. Bieber’s sobriety tests have confirmed marijuana and Xanax in his system at the time of his arrest in Florida.  This is more likely to result in his inadmissibility/deportability than his current charges in Canada.

Overview

The media is now reporting that Justin Bieber returned to Toronto and surrendered himself to the Metropolitan Toronto Police (52 Division) at about 7:30pm tonight (Toronto time).  He is expected to be charged with assault in connection with an incident that occurred in Toronto between the late evening on December 29, 2013 and the early morning on December 30, 2013.

At the time, the media reported that a member of Justin Bieber’s entourage had apparently assaulted a limousine driver who was driving the entertainer and several others.  It was unclear whether Justin Bieber was personally involved in the attack but the Metropolitan Toronto Police believed that he was in the limousine at the time of the attack.

In light of this imminent assault charge, it would be appropriate to revisit the issue of Mr. Bieber’s continuing ability to enter the United States if he is actually convicted of assault in Canada.

Assault in Canada

Unlike in the U.S, where criminal law is under the jurisdiction of each state, criminal law in Canada is under federal jurisdiction.  Most criminal offenses appear in the Canadian Criminal Code (“CCC”). [1] The offense of assault appears in CCC 265(1), which states that a person commits an assault when:

  1. Without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
  2. He attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
  3. While openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

The maximum penalty that will apply depends on whether the perpetrator uses a weapon, causes bodily harm, or if it is considered an aggravated assault.  However, details of the incident itself are limited so there is no way to determine whether the Mr. Bieber will be charged with simple assault or something more serious.

Applicable Ground of Inadmissibility

As mentioned in my previous blog post, while the grounds of deportability contained in the Immigration and Nationality Act (“INA”) determine when a person may be removed from the United States, the grounds of inadmissibility determine when a person will be prevented from entering the United States.  As Mr. Bieber has now returned to Canada, the grounds of inadmissibility contained in the INA will apply if he seeks to re-enter the United States.

According to INA 212(a)(2)(A)(i)(I), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of a crime involving moral turpitude (“CIMT”) or an attempt or conspiracy to commit such a crime, is inadmissible.  For Mr. Bieber’s assault conviction to result in inadmissibility, it would need to be considered a CIMT.

As I previously mentioned, the definition of “moral turpitude” is extremely vague; it is often very difficult to determine whether a particular offense is a CIMT.  However, “moral turpitude” has been defined by the Board of Immigration Appeals (“BIA”) as an act that that is per se morally reprehensible and intrinsically wrong, so it is the nature of the act itself and not the statutory prohibition of it which makes it a CIMT.[1]

Simple Assault

In the absence of further details, we can probably assume that Justin Bieber will be charged with simple assault.  Assuming that Mr. Beiber is convicted of simple assault, this would fall under CCC 266, which states that every one who commits an assault is guilty of:

  1. An indictable offence and is liable to imprisonment for a term not exceeding five years; or
  2. An offence punishable on summary conviction.

This is considered a hybrid offense, which means that the Crown (i.e. prosecutor) can elect to treat the case as an indictable offense (i.e. felony) or as a summary conviction (i.e. misdemeanor).

The law is fairly well-established in the United States that simple assault is not considered a CIMT.[2]  Therefore, if he is convicted of simple assault, this should not render Mr. Bieber inadmissible to the United States.

Aggravated Assault, Assault with a Weapon, and Assault Causing Bodily Harm

These more serious forms of assault are a bit more complicated to assess, since the case law is not entirely consistent.  However, in Matter of Perez-Contreras[3], the BIA attempted to summarize these prior decisions and concluded that, for assault to be considered a CIMT, it would need to require intentional or reckless conduct.

Assault with a Weapon and Assault Causing Bodily Harm

If Justin Bieber is convicted of assault with a weapon or assault causing bodily harm, this would fall under CCC 267, which states that every one who, in committing an assault:

  1. Carries, uses or threatens to use a weapon or an imitation thereof, or
  2. Causes bodily harm to the complainant,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

Although CCC 267 provides for enhanced penalties where the assault is committed with a weapon or ultimately causes bodily harm, it is not an element of the offense that the perpetrator act recklessly or intentionally with the objective of causing bodily harm.  Therefore, even assault with a weapon or assault causing bodily harm may not be considered CIMTs.

Aggravated Assault

If Mr. Bieber is convicted of the more serious offense of aggravated assault, it would fall under CCC 268, which states that every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.  It also states that aggravated assault is an indictable offence with a maximum term of imprisonment not exceeding fourteen years.

This more serious form of assault still does not specifically state that it requires reckless or intentional conduct as an element of the offense.  The 9th Circuit specifically considered CCC 268 for the purposes of inadmissibility in Uppal v. Holder.[4]  In that decision, the court concluded that a conviction for aggravated assault under CCC 268 did not require that the perpetrator specifically intend to inflict serious physical injury, or any injury at all.  Under CCC 268, a perpetrator need not even recklessly disregard the risk of bodily harm or endangerment resulting from the assault. Instead, CCC 268 requires only that a reasonable person would know that the assault carries a risk of bodily injury or endangerment, which is a negligence standard.

Based on the above, it would appear that even aggravated assault under CCC 268 would likely not be considered a CIMT.  Therefore, if Justin Bieber is convicted of aggravated assault, it probably will not render him inadmissible either.

Conclusion

I can finally give Justin Bieber some good news.  Although his other conduct might eventually render him inadmissible to the United States, he does not need to worry too much about his assault charge.  It probably will not affect his ability to re-enter the United States.

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[1] R.S.C., 1985, c. C-46.

[2] Matter of Ahortalejo-Guzman, 25 I. & N. Dec. 465(BIA 2011).

[3] 20 I. & N. Dec. 615 (BIA 1992).

[4] 605 F.3d 712 (9th Cir. 2010).


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