The Board issued its first published decision giving meaning to section 237(a)(4)(A)(ii) of the INA, the removal ground for engaging in “criminal activity which endangers public safety or national security.”
The respondent was convicted under 18 USC § 32(a)(5), the federal statute penalizing interference with the operation of an aircraft with either the intent to endanger the safety of any person or a reckless disregard for the safety of human life. He obtained the conviction after intentionally pointing a laser at the pilot of a Philadelphia Police Department helicopter, causing the pilot momentarily to lose control of the helicopter as it flew over the city.
In assessing whether this crime made the respondent removable, the Board first noted that § 237(a)(4)(A)(ii) requires “criminal activity” but not a conviction. On that basis, the Board held that the categorical approach does not apply to § 237(a)(4)(A)(ii). It relegated this controversial holding to a footnote with only a general citation to the Supreme Court's decision in Nijhawan.
From there, the Board concluded that the phrase “endangers the public safety” must be narrowly construed and does not include typical “single-victim crimes,” regardless of their seriousness. Rather, the phrase is limited to actions that place a large segment of the general population at risk. Having sidestepped the categorical approach, the Board held that the “totality of the circumstances,” including the extent and character of the potential harm and the facts of the underlying activity, could be considered. Because the respondent’s underlying activity endangered public safety by creating the risk of a helicopter crash over a major city, the Board found him removable.
Finally, although DHS also charged the respondent with removability for an aggravated felony crime of violence, the Board held that his crime was not an aggravated felony because it did not involve physical force or a substantial risk that such force would be used against the person or property of another.