Just so we're clear, hitting someone over the head with a martini glass is not a very masculine way to get arrested.
But, according to the Eighth Circuit Court of Appeals, it's not necessarily a "violent or dangerous" crime that serves as grounds for removal.
John Waldron, a Brit, entered the U.S. as a non-immigrant visitor in 2002. He later married a U.S. citizen, and his status was adjusted to conditional permanent resident.
On January 1, 2005, Waldron and his wife, Tamara, attended a New Year's party at a St. Louis restaurant. As they were attempting to leave, Waldron and another patron got into an argument that escalated into a physical altercation. During the altercation, Waldron struck the other man on the head with an empty martini glass.
Waldron was arrested, charged, and pled guilty to recklessly causing serious injury to another, (a felony second degree assault). He was sentenced to one year of probation and 100 hours of community service. Later that year, Waldron submitted a petition to the Department of Homeland Security (DHS) seeking to remove conditions on his residence in the United States.
Because of Waldron's felony conviction, the DHS denied Waldron's petition. DHS claimed that Waldron was actually removable because his status as a conditional permanent resident had been terminated, and Waldron had been "convicted of a crime involving moral turpitude committed within five years" of his entry into the United States.
Waldron was inadmissible under the Immigration and Nationality Act since he committed a crime involving "moral turpitude," so he sought a waiver on the grounds that his two-year-old son was a U.S. citizen. The immigration judge (IJ) cut him a break, finding that he had not committed a "violent or dangerous crime" and that Waldron's family would suffer extreme hardship if Waldron were removed.
The Board of Immigration Appeals (BIA), on the other hand, concluded that Waldron had failed to demonstrate "exceptional and extremely unusual hardship," vacated the IJ's decision, and ordered Waldron removed to the United Kingdom.
Last week, the Eighth Circuit Court of Appeals reversed that decision, finding that the BIA had impermissibly substituted its analysis of the facts, instead of determining whether the IJ's findings were clearly erroneous. The appellate court remanded the case to the BIA for proper review.
Does that mean that Waldron is in the clear? Absolutely not. The BIA could find that a martini glass attack clearly qualifies as a "violent or dangerous crime."
If they do, we expect that the Eighth Circuit would reverse the BIA once again, because a martini glass might be the most ridiculous bar weapon of all time.
- Waldron v. Holder (FindLaw's CaseLaw)
- Escape is a Violent Felony Under Armed Career Criminal Act (FindLaw's Second Circuit Blog)
- You Can't Manufacture a Legal Dispute Over a Factual Disagreement (FindLaw's Seventh Circuit Blog)