Offense
Escape
Without force (a)
With force, including simple battery (b)
Aggravated Felony (AF)
Get 364 days or less on any single count, to avoid potential AF as obstruction of justice.
Crime Involving Moral Turpitude (CIMT)
Should not be a CIMT, arguably even 4532(b), under older decisions finding seeking escape is not depraved conduct. See Advice.
Other Removal Grounds
No other removal ground.
Advice and Comments
PC 4532(a), (b)
See citations and further discussion at this endnote, including for CIMT.1Pen C § 4532 as an AF as Obstruction of Justice. An offense that meets the generic definition of “obstruction of justice” is an AF if a sentence of one year or more is imposed on a single count. 8 USC § 1101(a)(43)(S). While some aspects of the definition of obstruction are contested (see, e.g., discussion of Pen C § 32, above), it is established that it includes intentional interference with an investigation or proceeding or in punishment resulting from a completed proceeding. See e.g., Matter of Valenzuela Gallardo , 27 I&N Dec. 449, 449 (BIA 2018).
Pen C § 4532 as an AF as a COV. Section 4532(a) penalizes escape without the use of force, and this should not be held a COV. Section 4532(b) penalizes escape with the use of force, but arguably this is not a COV either, since it includes force at the level of battery. People v. Lozano, 192 Cal. App. 3d 618, 627, 237 Cal. Rptr. 612, 617 (1987). But since 4532 will be held an AF as obstruction if a sentence of a year or more is imposed, the COV ruling would provide little benefit.
Pen C § 4532 as a CIMT. Escape without use of force is not a CIMT, and is treated as a kind of regulatory offense. Even escape with use of force – including the minor force against people or property that is sufficient for 4532(b) — arguably is not a CIMT. See Matter of B—, 5 I&N Dec. 538, 541 (BIA 1953) (finding that a simple assault committed “knowingly” upon a prison guard as part of an attempted escape is not a CIMT), cited with approval in Matter of Fualaau, 21 I&N Dec. 475, 478 (BIA 1996), and see, e.g., U.S. ex rel. Manzella v. Zimmerman, 71 F.Supp. 534, 538 (E.D. Pa. 1947) (declining to find that “the action of an escaping prisoner involves that element of baseness, vileness or depravity which has been regarded as necessarily inherent in the concept of moral turpitude. On the contrary such action, while mistaken and wrong under these circumstances, does undoubtedly spring from the basic desire of the human being for liberty of action and freedom from restraint.”)
AF as obstruction of justice. Escape from court-ordered punishment almost surely meets the definition of obstruction, so counsel must avoid a 1-year sentence on any single count.
AF as a COV. Arguably even 4532(b), escape by force, is not a COV because it can involve simple battery. But because a sentence of 1 year creates an AF as obstruction, this does not help.