BIA Finds Conviction for Violating Kansas No-Contact Provision Is a Removable Offense

A conviction for violation of the no-contact provision of a protection order issued under the Kansas Protection from Abuse Act constitutes a removable offense under INA §237(a)(2)(E)(ii). Matter of Strydom, 25 I&N Dec. 507 (BIA 2011).

The Board held that a conviction under section 21-3843(a)(1) of the Kansas Statutes Annotated for telephoning a person protected by the order constitutes a deportable offense under section 237(a)(2)(E)(ii) of the Immigration and Nationality Act.  Section 237(a)(2)(E)(ii) provides that an alien admitted to the U.S. who violates “the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued is deportable.”

Contacting the subject of a protection order by telephone made the respondent deportable even if the call did not involve threats or repeated harassment. It reasoned that the no-contact portion of a protection order (as opposed to portions concerning attending counseling or paying costs) involved protection from credible threats, repeated harassment, or bodily injury because a court would only issue it if there had been past abuse or threats and the no-contact order protects the victim from being victimized again.

The Board did not discuss the potential significance of the fact that the case involved a temporary protection order, which typically is issued before the court determines if credible threats of violence, repeated harassment, or bodily injury actually had occurred.  Indeed, the telephone call in this case occurred twenty days before the hearing on the restraining order.  The temporary restraining order thus apparently was based only on the woman’s unproven allegations.

The Board’s construction gives no effect to the statutory language that seems to require a determination that the threats, repeated harassment, or bodily injury had occurred and that any threats were credible.  A better construction would require, at least in the case of unproven ex parte temporary restraining orders, that the immigration judge actually find that the violation did involve such conduct.

Supreme Court Holds that Florida Battery Conviction Was Not “Violent Felony”

In a case with implications for aliens facing domestic violence deportation charges or with aggravated-felony crime of violence convictions, the U.S. Supreme Court in Johnson v. U.S., 2010 WL 693687, held that the Florida felony offense of battery by “[a]ctually and intentionally touch[ing]” another person does not have “as an element the use ... of physical force against the person of another” and thus does not constitute a “violent felony” under 18 USCA § 924(e).

JOHNSON v. UNITED STATES ( No. 08-6925 )
528 F. 3d 1318, reversed and remanded.

Curtis Johnson pleaded guilty to knowingly possessing ammunition after having been convicted of a felony, in violation of 18 U. S. C.§922(g)(1). The Government sought an enhanced penalty under §924(e), which provides that a person who violates §922(g) and who “has three previous convictions” for “a violent felony” “committed on occasions different from one another” shall be imprisoned for a minimum of 15 years and a maximum of life. A “violent felony” is defined as “any crime by imprisonment for a term exceeding one year” that:

“(i) has as an element the use, attempted use, or threatened use of
physical force against the person of another; or

“(ii) is burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk of
physical injury to another.” §924(e)(2)(B).

Johnson’s indictment specified five prior felony convictions. The Government contended that three of those convictions—for aggravated battery and for burglary of a dwelling in October 1986, and for battery in May 2003—rendered Johnson eligible for sentencing under §924(e)(1). At the sentencing hearing, Johnson did not dispute that the two 1986 convictions were for “violent felon[ies],” but he objected to counting his 2003 battery conviction. That conviction was for simple battery murder Florida law, which ordinarily is a first-degree misdemeanor, Fla. Stat. §784.03(1)(b), but is a third-degree felony for a defendant who (like Johnson) has been convicted of battery (even simple battery) before, §784.03(2).

Under §784.03(1)(a), a battery occurs when a person either “1. [a]ctually and intentionally touches or strikes another person against the will of the other,” or “2. [i]ntentionally causes bodily harm to
another person.” Because the elements of the offense are disjunctive,the prosecution can prove a battery in one of three ways. State v. Hearns , 961 So. 2d 211, 218 (Fla. 2007). It can prove that the
defendant “[i]ntentionally caus[ed] bodily harm,” that he “intentionally str[uck]” the victim, or that he merely “[a]ctually and intentionally touche[d]” the victim.

Since nothing in the record of Johnson’s 2003 battery conviction permitted the District Court to conclude that it rested upon anything more than the least of these acts, see Shepard v. United States , 544 U.S. 13, 26 (2005) (plurality opinion), his conviction was a predicate conviction for a “violent felony” under the Armed Career Criminal Act only if “[a]ctually and intentionally touch[ing]” another person constitutes the use of “physical force” within the meaning of m§924(e)(2)(B)(i). The District Court concluded that it does, and accordingly sentenced Johnson under §924(e)(1) to a prison term of 15 years and 5 months.

The Eleventh Circuit affirmed. 528 F. 3d 1318 (2008).

In a 7-2 decision authored by Justice Antonin Scalia and joined by Chief Justice John G. Roberts Jr. and Justices John Paul Stevens, Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer, and Sonia Sotomayor, the Court first rejected the petitioner's argument that, in deciding whether any unwanted physical touching constitutes “physical force”m under 18 USCA § 924(e)(2)(B)(i), it was bound by the decision of the Florida Supreme Court in State v. Hearns, 961 So. 2d 211 (Fla. 2007), am case involving a Florida statute similar to the ACCA that held that, since § 784.03(1)(a) requires proof of only the slightest unwanted physical touch, “the use ... of physical force” was not an element of the offense. Rather, the Court said, the meaning of “physical force” in § 924(e)(2)(B)(i) is a question of federal law, not state law, and in answering that question the Court is not bound by a state court's interpretation of a similar or even identical state statute. However, in determining whether a felony conviction for battery under Fla. Stat. Ann. § 784.03(2) meets the definition of “violent felony” in 18 USCA §     924(e)(2)(B)(i), the Court said, it was bound by the Florida Supreme Court's interpretation of state law, including its determination of the elements of Fla. Stat. Ann. § 784.03(2).

Because § 924(e)(2)(B)(i) does not define “physical force,” the Court, in accord with its past precedent decisions, gave it its ordinary meaning. In this regard, the Court referred to Black's Law Dictionary,
which defines “force” as “[p]ower, violence, or pressure directed against a person or thing” and defines “physical force” as “[f]orce consisting in a physical act, esp. a violent act directed against a robbery victim,” and found that these definitions suggested a degree of power that would not be satisfied by the merest touching. The Court rejected the government's contention that “force” as used in § 924(e)(2)(B)(i) has the more specialized legal meaning that the common law gave it when it defined the crime of battery as consisting of the intentional application of unlawful force against the person of another and defined “force” as meaning even the slightest offensive touching. In reaching this conclusion, the Court relied upon its decision in Leocal v. Ashcroft, 543 U.S. 1 (2004), where it interpreted the statutory definition of “crime of violence” in 18 USCA § 16, a provision very similar to § 924(e)(2)(B)(i) in that it includes any felony offense which“has as an element the use ... of physical force against the person or property of another,” § 16(a). The Court there stated:

In construing both parts of § 16, we cannot forget that we ultimately are determining the meaning of the term “crime of violence.” The ordinary meaning of this term, combined with § 16's emphasis on the use of physical force against another person (or the risk of having to use such force in committing a crime), suggests a category of violent, active crimes.... 543 U.S. at 11, 125 S.Ct. 377.

The Court found it “clear that in the context of statutory definition of ‘violent felony,’ the phrase ‘physical force’ means violent force--that is, force capable of causing physical pain or
injury to another person.” (Emphasis by the Court.)

The Court also found it significant that the meaning of “physical force” that the government sought to import into the meaning of “violent felony” is a meaning derived from a common-law misdemeanor and concluded that it is unlikely that Congress would select as a term of art defining “violent felony” a phrase that the common law gave peculiar meaning only in its definition of a misdemeanor.

The majority found no merit to the dissent's contention that the term “force” in § 924(e)(2)(B)(i) cannot be read to require violent force because Congress specifically named “burglary” and “extortion” as “violent felon[ies]” in § 924(e)(2)(B)(ii), notwithstanding that those offenses can be committed without violence, noting that burglary and extortion are listed in § 924(e)(2)(B)(ii) as examples of felonies that “presen[t] a serious potential risk of physical injury to another,” not in § 924(e)(2)(B)(i) as felonies that have “as an element the use, attempted use, or threatened use of physical force.” Similarily, the court found no merit to the government's contention that, because Congress used the phrase “bodily injury” in connection with the phrase m“physical force” in § 922(f)(8)(C)((ii) (a provision forbidding the possession of firearms by a person subject to a court order explicitly
prohibiting the “use, attempted use, or threatened use of physical force against [an] intimate partner or child that would reasonably be expected to cause bodily injury”), the absence of such language in §
924(e)(2)(B)(i) proves that the merest touch suffices. Rather, the Court found that specifying that “physical force” must rise to the level of bodily injury does not suggest that without the qualification “physical force” would consist of the merest touch. The Court also pointed out mthat this is not a case where Congress “include[d] particular language min one section of a statute but omit[ted] it in another section of the same Act” as § 922(g)(8)(C)(ii) was enacted in 1994--eight years after
enactment of the language in § 924(e)(2)(B)(i).

The Court also dismissed the government's contention that interpreting § 924(e)(2)(B)(i) to require violent force will undermine its ability to enforce the firearm disability in § 922(g)(9) for persons who previously have been convicted of a “misdemeanor crime of domestic violence,” which is defined to include certain misdemeanor offenses that have “as an element, the use or attempted use of physical force ... ,” §921(a)(33)(A)(ii), stating that it was interpreting the phrase “physical force” only in the context of a statutory definition of “violent felony” and was not deciding that the phrase has the same meaning in the context of defining a misdemeanor crime of domestic violence. The issue was not
before the Court, and the Court explicitly did not decide it.

Similarly the Court dismissed both (1) the government's concern that the Court's interpretation would make it more difficult to remove, pursuant to INA § 237(a)(2)(E) [8 USCA § 1227(a)(2)(E)], an alien convicted of a “crime of domestic violence,” which is defined to mean “any crime of violence (as defined in [18 USCA § 16])” committed by certain persons, including spouses, former spouses, and parents, where the alien is convicted of a battery under a statute, like Florida's, that does not require the use of violent physical force, and (2) the dissent's concern that, in states that have generic felony-battery statutes that cover both violent force and unwanted physical force, the Court's interpretation will render convictions under those statutes outside the scope of the ACCA. The majority found these arguments to exaggerate the effect of its decision since, when the law under which the defendant has been convicted contains statutory phrases that cover several different generic crimes, some of which require violent force and some of which do not, the Court's modified categorical approach, Nijhawan v. Holder, 129 S. Ct. 2294 (2009),  permits a court to determine which statutory phrase was the basis for the conviction by consulting the trial record--including charging documents, plea agreements, transcripts of plea colloquies, findings of fact and conclusions of law from a bench trial, and jury instructions and verdict forms. In this regard, the Court pointed out, the government has in the past obtained convictions under the ACCA in precisely this manner.

Finally, the Court declined to remand to the Eleventh Circuit for it to consider whether the petitioner's 2003 battery conviction is a “violent felony” within the meaning of the so-called “residual clause” in 18 USCA § 924(e)(2)(B)(ii). The Court found that (1) the government did not keep this option alive because it disclaimed at sentencing any reliance upon the residual clause, and (2) the parties briefed this issue to the Eleventh Circuit, which nonetheless reasoned that, if the petitioner's conviction under Fla. Stat. Ann. § 784.03(2) satisfied § 924(e)(2)(B)(i), then it was a predicate “violent felony” under § 924(e)(1), but “if not, then not.”

Justice Samuel A. Alito, Jr., joined by Justice Clarence Thomas, dissented, arguing that the ACCA defines a “violent felony” to mean, among other things, “any crime punishable by imprisonment for a term exceeding one year ... that ... has as an element the use, attempted use, or threatened use of physical force against the person of another” and the classic definition of the crime of battery is the “intentional application of unlawful force against the person of another,” so that the crime of battery, as traditionally defined, falls squarely within the plain language of the ACCA. Justice Alito opined that the ACCA was meant to incorporate this traditional definition and that therefore the decision of the court of appeals should have been affirmed.

BIA Holds that California Conviction for Infliction of Corporal Injury on Spouse Is Crime of Violence

The BIA held in Matter of Perez Ramirez, 25 I. & N. Dec. 203 (B.I.A. Mar. 17, 2010), that (1) where a criminal alien's sentence has been modified to include a term of imprisonment following a violation of probation, the resulting sentence to confinement is considered to be part of the penalty imposed for the original underlying crime rather than punishment for a separate offense and (2) an alien's misdemeanor conviction for willful infliction of corporal injury on a spouse in violation of § 273.5(a) of the California Penal Code qualifies categorically as a conviction for a “crime of violence” within the meaning of 18 USCA § 16(a).

The respondent, Antonio Perez Ramirez, is a native and citizen of Mexico and a lawful permanent resident of the U.S. On August 18, 2004, he was convicted pursuant to a nolo contendere plea in the Superior Court of California, County of Los Angeles, of the misdemeanor offense of inflicting corporal injury on a spouse in violation of § 273.5(a) of the California Penal Code. The trial court did not impose a sentence for this offense but instead suspended imposition of a sentence and granted the respondent 36 months of “summary probation.” As a condition of this probation order, the trial court ordered the respondent to enroll in a 12-month batterer's counseling program. The respondent was also ordered not to annoy, harass, or molest anyone involved in the case and was served with a copy of a protective order. On July 24, 2007, the respondent stipulated in open court to a probation violation, and the trial court found that he had violated the terms of his probation. His probation was reinstated and continued on the same terms and conditions except that he was also ordered to serve 365 days in the Los Angeles County Jail for his offense. In a decision dated June 24, 2009, an immigration judge (IJ) found the respondent removable under INA § 237(a)(2)(A)(iii) [8 USCA § 1227(a)(2)(A)(iii)] as an alien convicted of a “crime of violence” for which the term of imprisonment is at least one year, which is an aggravated felony under INA § 101(a)(43)(F) [8 USCA § 1101(a)(43)(F)]. The respondent appealed to the BIA.

INA § 101(a)(43)(F) defines “aggravated felony” to include crimes of violence as defined in 18 USCA § 16(a) that resulted in a term of imprisonment of at least one year. 18 USCA § 16(a) in turn defines “crime of violence” to include either (1) an offense that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another” or (2) an offense that is a felony that by its nature involves a substantial risk that physical force will be used against another in the course of its commission.

In an opinion written by Board Member Roger Pauley for the panel, which included Board Members Lauri S. Filppu and Patricia A. Cole, the Board rejected the respondent's arguments that he was not convicted of a crime of violence for which the term of imprisonment was at least one year because (1) the use, attempted use, or threatened use of physical force against the person of another, which is required by 18 USCA § 16(a), need not be shown for a conviction under Cal. Penal Code § 273.5(a) because, under Cal. Penal Code § 7(1), the term “willfully” does not require any intent to injure another, thus precluding any showing that his offense involved the use, attempted use, or threatened use of physical force against the person of another and (2) under California law, the 365-day jail term imposed by the trial court on July 24, 2007, did not represent a sentence to a “term of imprisonment of at least one year” in connection with his underlying criminal conviction but instead was the result of his probation violation and constituted only a condition of his reinstated and modified order of probation.

The Board first held that under Supreme Court,  circuit court, including the Ninth Circuit, the circuit in which this case arose, and Board  precedent, the modification of the respondent's sentence following his probation violation, which resulted in a sentence of confinement for 365 days, must be considered to be part of the penalty imposed against him for the original crime giving rise to immigration proceedings rather than punishment for a separate offense. Thus, the respondent's 365-day term of imprisonment, imposed following modification of his probation, represented a one-year sentence for violating Cal. Penal Code § 273.5(a).

The Board then turned to the respondent's argument that his conviction was not a “crime of violence” under 18 USCA § 16 because the use, attempted use, or threatened use of physical force against the person of another, which 18 USCA § 16(a) requires, need not be shown for a conviction under Cal. Penal Code § 273.5(a), which provides that:
Any person who willfully inflicts upon a person who is his or her spouse ... corporal injury resulting in a traumatic condition, is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year ...
Preliminarily, the Board found that, while this language would appear to only prescribe the allowable punishment for a felony, when it is read in conjunction with Cal. Penal Code § 17, it is clear that the provision in § 273.5(a) allowing for imprisonment in a county jail for not more than one year is the maximum possible punishment for a misdemeanor since under § 17 a felony is a crime that is punishable by death or imprisonment in the state prison and every other crime or public offense is a misdemeanor except those offenses classified as infractions. Therefore, the Board concluded that, because the respondent was ordered to serve 365 days in county jail, under California law, his offense would be excluded from the definition of a felony. Nevertheless, the Board pointed out, the respondent's misdemeanor may be an “aggravated felony” since he was sentenced to a term of imprisonment for at least one year. The Board cited U.S. v. Gonzalez-Tamariz, 310 F.3d 1168, 1171 (9th Cir. 2002), which held that a crime may be classified as an aggravated felony under INA § 101(a)(43)(F) without regard to whether the crime is labeled a felony or a misdemeanor under state law when the crime is a “crime of violence” and the sentence imposed by the state court is one year.

The Board then addressed the question of whether the respondent's conviction was for a “crime of violence.” The Board rejected the respondent's contention that, under Cal. Penal Code § 7(1), the term “willfully” does not require any intent to injure another and thus precludes any showing that his offense involved the use, attempted use, or threatened use of physical force against the person of another because California state court decisions have found that the term “willfully” as employed in § 273.5(a) means a purpose or willingness on the part of the actor to commit the act that results in corporal injury and have defined the term “inflicts” as used in § 273.5(a) as meaning that the corporal injury must result from a direct application of force by the perpetrator upon the victim. The Board further noted that § 273.5(c) defines “traumatic condition” as “a condition of the body, such as a wound or external or internal injury, whether of a minor or serious nature, caused by a physical force.” Since a person cannot be convicted under § 273.5(a) without willfully and directly applying upon another person a force that is of such violence as to cause a wound or external or internal injury to the victim, the Board was satisfied that the use of physical force against the person of another is an element of the offense within the meaning of 18 USCA § 16(a).

While § 7(1) provides that the term “willfully” does not require any intent to injure another, the Board concluded that the “volition” requirement implicit in the term “use” relates to the application of force against the victim and not to the resulting infliction of injury. Accordingly, the Board agreed with the IJ that the respondent's California conviction for inflicting corporal injury on a spouse qualifies categorically as a conviction for a “crime of violence” under 18 USCA § 16(a) and that, since his conviction resulted in the imposition of a term of imprisonment of one year following his violation of probation, he is removable as an alien convicted of a “crime of violence” aggravated-felony offense. Accordingly, the respondent's appeal was dismissed.

Domestic Battery Conviction , Illinois and Removal, Deportation from the United States

Domestic violence and related convictions will cause immigration problems not only for individuals that have a pending application for permanent resident status (green card) with the local CIS office but also for individuals that are already permanent residents or those who seek to apply for United States citizenship through naturalization.

Several years ago, Congress amended the Immigration law to include a conviction for domestic violence as ground of deportability. A felony conviction for domestic violence can serve as a basis for deportation even if no jail time was imposed or actually served. 8 U.S.C. § 1227(a)(2)(E)(i). A misdemeanor domestic violence conviction is not necessarily a "crime of violence" for deportation purposes, unless the "offense has as an element the use, attempted use, or threatened use of physical force against the person or property of another."

In Flores v. Ashcroft the Seventh Circuit held that a respondent convicted under the Indiana Battery statute was not deportable for a crime involving domestic violence because there was not a substantial risk that the offense involved the use of force. November 26, 2003, 2003 U.S. App. LEXIS 24051

Sec. 12-3.2 Domestic Battery (720 ILCS 5/12-3.2) (from Ch. 38, par. 12-3.2)

(a) A person commits domestic battery if he intentionally or knowingly without legal justification by any means:

(1) Causes bodily harm to any family or household member as defined in subsection (3) of Section 112A-3 of the Code of Criminal Procedure of 1963, as amended;

(2) Makes physical contact of an insulting or provoking nature with any family or household member as defined in subsection (3) of Section 112A-3 of the Code of Criminal Procedure of 1963, as amended.

(b) Sentence. Domestic battery is a Class A Misdemeanor. Domestic battery is a Class 4 felony if the defendant has any prior conviction under this Code for domestic battery

Sec. 12-3.3 Aggravated domestic battery (720 ILCS 5/12-3.3)

(a) A person who, in committing a domestic battery, intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement commits aggravated domestic battery.

(b) Sentence. Aggravated domestic battery is a Class 2 felony. Any order of probation or conditional discharge entered following a conviction for an offense under this Section must include, in addition to any other condition of probation or conditional discharge, a condition that the offender serve a mandatory term of imprisonment of not less than 60 consecutive days. A person convicted of a second or subsequent violation of this Section must be sentenced to a mandatory term of imprisonment of not less than 3 years and not more than 7 years or an extended term of imprisonment of not less than 7 years and not more than 14 years. (Source: P.A. 91445, eff. 1‑1‑00.)

In Flores v. Ashcroft the Seventh Circuit held that a respondent convicted under the Indiana Battery statute was not deportable for a crime involving domestic violence because there was not a substantial risk that the offense involved the use of force. November 26, 2003. http://callyourlawyers.com/pdfcaselaw/flores_v_ashcroft_7th.pdf

REMOVABLE OFFENSES

The term "conviction" under Immigration law: * * * The term "conviction" means with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed. * * * (8 U.S.C. 101(a)(48)(A)

Whether an aggravated felony or crime of moral turpitude, it is important to note that it is the “conviction” that counts. Dismissals, acquittals, adjudications (juvenile convictions) or no-paper charges do not count for immigration purposes. However, pleading guilty or even admitting to the facts supporting the elements of the offense may be considered as a conviction, even if the crimminal law does not recognize the conviction until the time a sentence has been entered (Judgment and Commitment Order). Sentences containing fines or probation constitute a conviction for immigration purposes. A deferred sentence counts only when there has been an admission of the facts beforehand. Convictions that are later set aside or expunged count as convictions if there has been an admission of the facts. In determining the length of the sentence, immigration authorities look to the term of the actual sentence, and not to the time that the offender is exposed to by statute.

Probationary sentences will trigger immigration consequenses if a term of incarceration is imposed but suspended. Probation will not trigger immigration consequences if the judge opts not to impose a sentence at all (known as an imposition of the sentence suspended, or an ISS sentence). In the case of an ISS sentence, if the candidate successfully completes probation, there are no immigration consequences because an actual sentence was never imposed. However, immigration consequences are triggered if the offender's probation is ever revoked, as the court will impose a sentence at the time of revocation. Thus, for immigration purposes it always best to request an ISS sentence for a probationary candidate.

Crimes of Moral Turpitude. Any alien who - (I) is convicted of a crime involving "moral turpitude" committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under section 1255(j) of this title) after the date of admission, and (II) is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable.

Multiple Criminal Convictions. Any alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefore and regardless of whether the convictions were in a single trial, is deportable.

Felony aggravated domestic battery is a "crime involving moral turpitude" (CIMT), an aggravated felony (only if one year of jail or more is actually imposed), and constitutes a domestic violence ground for deportation.

A felony aggravated battery conviction would be enough for ICE to charge as CIMT within 10 years of non citizen obtaining green card and/or as Agg. Felon/crime of violence if jail sentence imposed was more than one year.

Aggravated Felony: Any alien who is convicted of an aggravated felony (Sec.1101(a)(43) at any time after admission is deportable. (worst provision; no bail or relief) (f) a crime of violence (as defined in section 16 of title 18, but not including a purely political offense) for which the term of imprisonment is at least one year; A "crime of violence" under § 16(b) has two elements: (1) that the crime is a felony; and (2) that the crime, "by its nature," involves a substantial risk that physical force may be used. Under federal law, a crime is a "felony" if the maximum term of imprisonment authorized for the offense is "more than 1 year." See 18 U.S.C. § 3559(a) (Q) an offense relating to a failure to appear by a defendant for service of sentence if the underlying offense is punishable by imprisonment for a term of 5 years or more;

Domestic Violence

8 U.S.C. § 1227(a)(2)(E)(i): Any alien admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens: . . . (2)(E)(i) Any alien who at any time after admission is convicted of a crime of domestic violence . . . . For purposes of this clause, the term "crime of domestic violence" means any crime of violence (as defined in section 16 of Title 18) . . . by any individual against a person who is protected from that individual's acts under the domestic or family violence laws of the United States or any State, Indian tribal government, or unit of local government.

"Crime of Violence" With respect to the first prong of the § 1227(a)(2)(E)(i) analysis, 18 U.S.C. § 16 defines a "crime of violence" as follows:

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

A "crime of violence" under § 16(b) has two elements: (1) that the crime is a felony; and (2) that the crime, "by its nature," involves a substantial risk that physical force may be used. Under federal law, a crime is a "felony" if the maximum term of imprisonment authorized for the offense is "more than 1 year." See 18 U.S.C. § 3559(a)

The BIA states that an offense does not fall within the definition of a "crime of domestic violence" under 8 U.S.C. § 1227(a)(2)(E)(i) unless (1) the crime is a "crime of violence" as defined in 18 U.S.C. § 16, and (2) the person against whom the crime was committed was a "protected person" within the meaning of § 1227(a)(2)(E)(i). Applying its traditional categorical approach to criminal convictions, the Immigration Judge/BIA would hold that (1) a felony conviction constituted a "crime of violence" because the crime, as defined by Illinois case law, requires an intentional touching that caused bodily harm and was non-consensual and, therefore, involves a substantial risk that physical force may be used, and (2) victim /spouse was a "protected person" under Illinois criminal and civil law.

[DOMESTIC VIOLENCE: The offense of aggravated stalking pursuant to section 750.411i of the Michigan Compiled Laws Annotated is a crime involving moral turpitude Matter of AJAMI, Interim Decision #3405, 1999)

A single conviction for misdemeanor domestic battery is not an Aggravated felony- as a crime of violence, and is not necessarily CIMT, unless non citizen has two or more unrelated convictions for CIMT.

A misdemeanor domestic battery conviction- regardless of jail time imposed or served by non citizen –does not necessarily fall within domestic violence Ground of removability. Flores V. Ashcroft

A simple misdemeanor battery (not domestic battery) conviction, and jail sentence of up to 364 days, charged as "offensive touching" (not bodily harm), could be argued does not constitute CIMT and clearly does not constitute a domestic violence or aggravated felony grounds for removal. ________________________________________________________________________

An Immigration Judge in Arizona recently terminated a deportation proceeding based on domestic violence-related misdemeanor convictions after concluding that the convictions were not “crimes of violence” under the Immigration and Naturalization Act (INA).

The INA describes various types of criminal conduct that can render an alien deportable. This list, increased by the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in 1996, includes convictions for domestic violence.

An alien charged with being deportable in an Arizona case was convicted of “misdemeanor assault / domestic violence”and of “misdemeanor Disorderly conduct / domestic violence”under state law. The Immigration and Naturalization Service (INS) then sought his deportation, charging that the defendant was deportable under the domestic violence provision of INA §237(a)(2)(E)(i). This section defines a “crime of domestic violence”as any “crime of violence”committed against a person in one of several listed relationships with the perpetrator, e.g., a current or former spouse.

“Crime of violence,”in turn, is defined by another federal provision (18 U.S.C. §16): (a) an offense that has an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

The respondent in the Arizona case argued that he could not be deported under the INA domestic violence ground for deportation because neither of his misdemeanor convictions met the federal statute’s definition of “crime of violence.”According to the Board of Immigration Appeals, the federal definition the classification described in the INA’s deportation provisions supersedes the state law definition to avoid inconsistent results for aliens similarly situated.

Specifically, in the Arizona case respondent argued that subpart (b) of the federal definition of “crime of violence”did not apply to his case because the offenses to which the defendant pleaded guilty were Misdemeanors, not felonies.

The respondent also argued that subpart (a) did not apply to him because the domestic violence provision required the “use, attempted use, or threatened use of physical force”directed against a statutorily protected victim - elements not required for either of his misdemeanor State convictions.

Essentially, the Arizona domestic violence laws under which the respondent was convicted were broader in scope than the INA definition, because they could have allowed the prosecution of acts that did not involve attempted physical force or disorderly conduct directed to a victim. Evidence of misdemeanor domestic violence convictions under state law alone did not clearly and convincingly demonstrate that the respondent had actually committed the federally-defined domestic violence that renders a person deportable.

The Immigration Judge held that the INS failed to prove that the defendant actually committed domestic violence as defined by the INA (that is, he used or threatened physical force) in the incident for which he had been convicted under Arizona law. The judge thereafter terminated the defendant’s deportation proceedings and ordered immediate release from INS custody.

Misdemeanor Domestic Battery not a Crime of Violence, Flores v. Ashcroft, Seventh Circuit, November 2003

In Flores v. Ashcroft the Seventh Circuit held that a respondent
convicted under the Indiana Battery statute was not deportable for a
crime involving domestic violence because there was not a substantial
risk that the offense involved the use of force. November 26, 2003,
2003 U.S. App. LEXIS 24051

Download PDF case

PROCEDURAL POSTURE: Petitioner sought review of an order of the Board of Immigration Appeals (BIA) which ordered petitioner removed under § 237(a)(2)(E) of the Immigration and Nationality Act, 8 U.S.C.S. § 1227(a)(2)(E), because he committed a "crime of domestic violence" under 18 U.S.C.S. § 16 and had a spouse or other domestic partner as a victim.

Petitioner pleaded guilty in Indiana to battery, a misdemeanor, defined as any touching in a rude, insolent, or angry manner. Ind. Code § 35--42--2--1. The BIA determined that this offense qualified as a "crime of domestic violence" under 18 U.S.C.S. § 16 and ordered petitioner removed under § 237(a)(2)(E). Upon review, the court of appeals found that the issue was how the offense created by Ind. Code § 35--42--2--1 should be classified for purposes of § 237(a)(2)(E). Although the police report shows that petitioner attacked and beat his wife, the court of appeals reasoned that § 16 provided that the statute's elements rather than the petitioner's real activities were dispositive in misdemeanor cases such that petitioner's conviction could not properly be classified as a crime of violence. Specifically, the court of appeals found that the elements of petitioner's battery conviction could not properly be viewed as a "crime of violence" under § 16 involving a spouse or other domestic partner as a victim, and thus concluded that petitioner was not removable under § 237(a)(2)(E).

The order of removal was vacated, and the matter is remanded to the BIA for further proceedings. 1(a)(1)(A).

________________

JOSE ERNESTO FLORES, Petitioner, v. JOHN ASHCROFT, Attorney General of the United States, Respondent.

No. 02-3160

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

2003 U.S. App. LEXIS 24051

September 18, 2003, Argued November 26, 2003, Decided

PRIOR HISTORY: [*1] Petition for Review of an Order of the Board of Immigration Appeals.

DISPOSITION: Vacated and remanded.

JUDGES: Before EASTERBROOK, DIANE P. WOOD, and EVANS, Circuit Judges. EVANS, Circuit Judge, concurring.

OPINIONBY: EASTERBROOK

OPINION:

EASTERBROOK, Circuit Judge.

Jose Ernesto Flores was ordered removed under § 237(a)(2)(E) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E), because he committed a "crime of domestic violence"- which means any offense that is a "crime of violence" under 18 U.S.C. § 16 and has a spouse or other domestic partner as a victim. The crime need not be defined in state law as "domestic"; all aspects of the definition are federal. But classification of a state crime under a federal definition can be tricky, and Flores denies that his offense qualifies. We have jurisdiction to determine whether Flores has committed a removable offense, see Gill v. Ashcroft, 335 F.3d 574 (7th Cir. 2003); Yang v. INS, 109 F.3d 1185, 1192 (7th Cir. 1997), but if he has done so then we lack jurisdiction to review any other issues. See 8 U.S.C. § 1252(a)(2)(C); Calcano-Martinez v. INS, 533 U.S. 348, 150 L. Ed. 2d 392, 121 S. Ct. 2268 (2001).


Flores pleaded guilty in Indiana to battery, a misdemeanor, which in that state is any touching in a rude, insolent, or angry manner. Ind. Code § 35-42-2-1. He received a one-year sentence because bodily injury ensued. Flores admitted at a removal hearing that the victim was his wife. Although he now contends that he was not given sufficient time before that admission to retain counsel, a removal proceeding is not a criminal prosecution, and the Constitution does not of its own force create a right to legal assistance at every stage. See Stroe v. INS, 256 F.3d 498 (7th Cir. 2001). The immigration judge's failure to grant Flores additional continuances before asking questions about the charges may have violated a regulation, but given § 1252(a)(2)(C) we lack authority to vindicate regulation-based arguments by criminal aliens. (Violation of a federal regulation differs from violation of the Constitution. See United States v. Caceres, 440 U.S. 741, 59 L. Ed. 2d 733, 99 S. Ct. 1465 (1979).) By the time the hearing proper arrived, Flores was represented by counsel, as he has been ever since. Lack of legal assistance earlier [*3] could matter only to the extent it affected the determination that he committed a crime of domestic battery- and that would be possible only if, with the assistance of counsel, Flores might have refused to make one of the concessions at the earlier, uncounseled proceedings: that (a) he is the "Jose Ernesto Flores " who pleaded guilty to the charge, and (b) the victim was his wife. Yet Flores has never (with or without counsel) denied either of these things. The issue at hand is entirely legal: how should the offense created by Ind. Code § 35-42-2-1 be classified for purposes of § 237(a)(2)(E)? It would be pointless to debate whether, some years ago, the immigration judge should have afforded Flores more time to hire a lawyer. We move to the main event.

Section 16 says that "The term 'crime of violence' means-(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. [*4] " Because the offense of which Flores was convicted is a misdemeanor, only § 16(a) matters. It is limited to crimes that have as an element the use of "physical force against the person ...of another". Indiana law provides: "(a) A person who knowingly or intentionally touches another person in a rude, insolent, or angry manner commits battery, a Class B misdemeanor. However, the offense is: (1) a Class A misdemeanor if: (A) it results in bodily injury to any other person". Ind. Code § 35-42-2-1. Flores pleaded guilty to this "Class A" version of the misdemeanor offense. The parties treat bodily injury as an "element" because it increases the maximum punishment. There are two other elements: an intentional touching, plus a rude, insolent, or angry manner. Rudeness has nothing to do with force (though it increases the offense given by the touching). But both touching and injury have a logical relation to the "use of physical force" under § 16(a).

Flores observes that Indiana does not require much of either touching or injury. Any contact counts as a "touch"- and this includes indirect as well as direct contact, so a snowball, spitball, or paper airplane [*5] qualifies if it hits the target. Indiana follows the common-law rule under which any contact, however slight, may constitute battery. Hamilton v. State, 237 Ind. 298, 145 N.E.2d 391 (1957); Seal v. State, 246 Ind. 353, 5 Ind. Dec. 451, 205 N.E.2d 823 (1965). Touching anything attached to someone else, such as the person's glasses, is treated the same as touching the body. Impson v. State, 721 N.E.2d 1275 (Ind. App. 2000). As for injury: a bruise suffices, as does any physical pain even without trauma. Lewis v. State, 438 N.E.2d 289 (Ind. 1982); Tucker v. State, 725 N.E.2d 894 (Ind. App. 2000). Indiana's courts reached this conclusion because "serious" bodily injury makes the offense a Class C felony. See Ind. Code § 35-42-2-1(a)(3). It follows, Indiana's judiciary concluded, that any physical hurt satisfies § 35-42-2-1(a)(1)(A). So if the paper airplane inflicts a paper cut, the snowball causes a yelp of pain, or a squeeze of the arm causes a bruise, the aggressor has committed a Class A misdemeanor (provided that the act was rude, angry, or insolent). It is hard to describe [*6] any of this as "violence."

Now Flores did not tickle his wife with a feather during a domestic quarrel, causing her to stumble and bruise her arm. That would not have led to a prosecution, let alone to a year's imprisonment. The police report shows that Flores attacked and beat his wife even though prior violence had led to an order barring him from having any contact with her. The contempt of court reflected in disobedience to this order, plus the ensuing injury, likely explains the prosecution and sentence. The immigration officials ask us to examine what Flores actually did, not just the elements of the crime to which he pleaded guilty. The problem with that approach lies in the language of § 16(a), which specifies that the offense of conviction must have "as an element" the use or threatened use of physical force. Section 16 adopts a charge-offense rather than a real-offense approach, as is common to recidivist statutes. See, e. g., Taylor v. United States, 495 U.S. 575, 109 L. Ed. 2d 607, 110 S. Ct. 2143 (1990). As we explained in United States v. Howze, 343 F.3d 919 (7th Cir. 2003), it may be necessary even in charge-offense systems to rely [*7] on some aspects of the defendant's actual behavior, in order to know what he has been convicted of: when one state-law offense may be committed in multiple ways, and federal law draws a distinction, it is necessary to look behind the statutory definition. See also United States v. Shannon, 110 F.3d 382, 384-85 (7th Cir. 1997) (en banc). Howze was itself an example of this. State law defined, as a single felony, theft from either a living person or an embalmed body. The former is (we held) a crime of violence under 18 U.S.C. § 924(e)(2)(B)(ii) and the latter not, because only the former poses a risk of a violent encounter between thief and victim. So in Howze we examined the charging papers to learn that the victim had been alive. Indiana's battery statute, by contrast, separates into distinct subsections the different ways to commit the offense. Particularly forceful touchings, or those that cause grave injuries, come under subsections other than Ind. Code § 35-42-2-1(a)(1)(A). Thus it is possible to focus on "the elements" of that crime, as § 16(a) requires, without encountering any ambiguity, and thus without [*8] looking outside the statutory definition. See also Bazan-Reyes v. United States, 256 F.3d 600, 606-12 (7th Cir. 2001) (drunk driving is not a crime of violence under the elements approach of § 16, even if injury or death ensues).

Although § 16(a) directs attention to the statutory elements, § 237(a)(2)(E) of the immigration laws departs from that model by making the "domestic" ingredient a real-offense characteristic. Thus it does not matter for purposes of federal law that the crime of battery in Indiana is the same whether the victim is one's wife or a drinking buddy injured in a barroom. The injury to a "domestic partner" is a requirement based entirely on federal law and may be proved without regard to the elements of the state crime. See Sutherland v. Reno , 228 F.3d 171, 177-78 (2d Cir. 2000). Substantial evidence, independent of Flores's admission, shows that the victim was his wife. When classifying the state offense of battery for purposes of § 16(a), however, the inquiry begins and ends with the elements of the crime.

According to the immigration officials, we should grant Chevron deference to the Board's decision that Ind. Code § 35-42-2-1(a)(1)(A) [*9] satisfies the federal definition. An earlier decision reached this conclusion, after extended analysis, with respect to a Connecticut law similar to Ind. Code § 35-42-2-1(a)(1)(A), see Matter of Martin, 23 I.&N. Dec. 491 (B. I.A. 2002), and in Flores's case the Board relied on Martin. Yet Chevron deference depends on delegation, see United States v. Mead Corp., 533 U.S. 218, 150 L. Ed. 2d 292, 121 S. Ct. 2164 (2001), and § 16(a) does not delegate any power to the immigration bureaucracy (formerly the Immigration and Naturalization Service, now the Bureau of Citizenship and Immigration Services), or to the Board of Immigration Appeals. Section 16 is a criminal statute, and just as courts do not defer to the Attorney General or United States Attorney when § 16 must be interpreted in a criminal prosecution, so there is no reason for deference when the same statute must be construed in a removal proceeding. Any delegation of interpretive authority runs to the Judicial Branch rather than the Executive Branch. Cf. Adams Fruit Co. v. Barrett, 494 U.S. 638, 108 L. Ed. 2d 585, 110 S. Ct. 1384 (1990). One [*10] law has one meaning, and a given state conviction a single classification, whether the subject arises in removal or in a recidivist prosecution in federal court. Although the agency's interpretation in Martin may have persuasive force, and we must give it careful consideration, it has no binding effect along Chevron's lines.

Martin is not persuasive. Besides starting with legislative history rather than the text of § 16- the Board saw great significance in a footnote to the Senate Report, though this footnote did not purport to disambiguate any statutory language and thus lacks weight on the Supreme Court's view of legislative history's significance- the Board made two logical errors. It relied on decisions such as United States v. Nason, 269 F.3d 10 (1st Cir. 2001); United States v. Ceron-Sanchez, 222 F.3d 1169 (9th Cir. 2000); and United States v. Smith, 171 F.3d 617 (8th Cir. 1999), which hold that state laws penalizing battery with intent to injure are crimes of violence under § 16 (or similar statutes, such as § 924(e)(2)). The Board concluded that this approach is equally applicable to laws such as Ind. Code § 35-42-2-1(a) (1)(A) [*11] . The first error is equating intent to cause injury (an element of the state laws at issue in those decisions) with any injury that happens to occur. It may well be that acts designed to injure deserve the appellation "violent" because the intent makes an actual injury more likely; it does not follow that accidental hurts should be treated the same way. Indiana's battery law does not make intent to injure an element of the offense; intent to touch must be established, but not intent to injure. The Board's second error was failure to appreciate the difference between felony and misdemeanor convictions. When the prior offense is a felony, then any criminal conduct that involves a "substantial risk" of physical force may be classified as a crime of violence under § 16(b) or § 924(e)(2)(B)(ii). (Howze involved a prior felony, which is why we looked to the risk of an altercation breaking out between thief and victim.) But when the conviction is for a misdemeanor, then physical force must be an element under § 16(a) or § 924(e)(2) (B)(i).

Section 16(a) refers to the "use of physical force". Every battery entails a touch, and it is impossible to touch someone without applying [*12] some force, if only a smidgeon. Does it follow that every battery comes within § 16(a)? No, it does not. Every battery involves "force" in the sense of physics or engineering, where "force" means the acceleration of mass. A dyne is the amount of force needed to accelerate one gram of mass by one centimeter per second per second. That's a tiny amount; a paper airplane conveys more. (A newton, the amount of force needed to accelerate a kilogram by one meter per second per second, is 100,000 dynes, and a good punch packs a passel of newtons.) Perhaps one could read the word "force" in § 16(a) to mean one dyne or more, but that would make hash of the effort to distinguish ordinary crimes from violent ones. How is it possible to commit any offense without applying a dyne of force? Section 16(a) speaks of "physical force against the person or property of another" (emphasis added). Cashing a check obtained by embezzlement requires lots of dynes to move the check into an envelope for mailing. Suppose someone finds a set of keys that the owner dropped next to his car and, instead of taking them to a lost and found, turns the key in the lock and drives away. One would suppose [*13] that to be a paradigm non-violent offense, yet turning the key in the lock requires "physical force" (oodles of dynes) directed against the property (the auto) of another.

To avoid collapsing the distinction between violent and non-violent offenses, we must treat the word "force" as having a meaning in the legal community that differs from its meaning in the physics community. The way to do this is to insist that the force be violent in nature- the sort that is intended to cause bodily injury, or at a minimum likely to do so. We have already drawn just that line. See Solorzano-Patlan v. INS, 207 F.3d 869, 875 n. 10 (7th Cir. 2000); Xiong v. INS, 173 F.3d 601, 604-05 (7th Cir. 1999). Otherwise "physical force against" and "physical contact with" would end up meaning the same thing, even though these senses are distinct in law. This is not a quantitative line ("how many newtons makes a touching violent?") but a qualitative one. An offensive touching is on the "contact" side of this line, a punch on the "force" side; and even though we know that Flores's acts were on the "force" side of this legal line, the elements of his offense are on the [*14] "contact" side. Because § 16(a) tells us that the elements rather than the real activities are dispositive in misdemeanor cases, this conviction cannot properly be classified as a crime of violence, and the basis for Flores's removal has been knocked out- along with any obstacle to our jurisdiction.

The order of removal is vacated, and the matter is remanded to the Board.

CONCURBY: EVANS

CONCUR: EVANS, Circuit Judge, concurring. Although it's debatable whether expending dynes (to say nothing about newtons) pressing the keys of my wordprocessor to concur in this case is worth the effort, I do so because the result we reach, though correct on the law, is divorced from common sense. For one thing, people don't get charged criminally for expending a newton of force against victims. Flores actually beat his wife- after violating a restraining order based on at least one prior beating- and got a one-year prison sentence for doing so.

If it is permissible to look to Flores' "real conduct" to determine if the person he beat was his wife rather than some stranger, why does it not make perfectly good sense to allow an immigration judge to look at what he really did in other respects as well, rather [*15] than restrict the judge to a cramped glance at the "elements" of a cold statute? The more information upon which the judge acts, the better. A common-sense review here should lead one to conclude that Flores committed a "crime of domestic violence." Simply put, by any commonly understood meaning of that term, that's exactly what he did, and that should be the end of the story. We, and the IJ as well in this case, should be able to look at what really happened. We recently observed that critics of our system of law often see it as "not tethered very closely to common sense." United States v. Cranley, 2003 U.S. App. LEXIS 23573, (2003 WL 22718171, decided November 19, 2003). This case is a good example of why that observation hits the nail on the head. Nevertheless, Judge Easterbrook is correct in applying the law so I join his persuasive (as usual) and colorful- snowballs, spitballs, and paper airplanes et al.- opinion. However, I do not applaud the result we reach. And one final point: Whether doing what Flores actually did should cause him to be removed from the country is a question we are without jurisdiction to answer. For better or worse, that's a matter for the executive branch as [*16] it attempts to implement the will of Congress.

http://callyourlawyers.com/pdfcaselaw/flores_v_ashcroft_7th.pdf