The question whether force is used is different than the question whether injury has occurred.  As the Supreme Court stated in Leocal v. Ashcroft:

 

As we said in a similar context in Bailey, “use” requires active employment.  While one may, in theory, actively employ something in an accidental manner, it is much less natural to say that a person actively employs physical force against another person by accident. Thus, a person would “use . . . physical force against” another when pushing him; however, we would not ordinarily say a person “use[s] . . . physical force against” another by stumbling and falling into him. When interpreting a statute, we must give words their “ordinary or natural” meaning.  The key phrase in § 16(a)--the “use . . . of physical force against the person or property of another”--most naturally suggests a higher degree of intent than negligent or merely accidental conduct.  Petitioner’s DUI offense therefore is not a crime of violence under § 16(a).[468]

 

Many offenses require proof of actual injury.  This question is a very different one than whether they require that force be used to cause that injury.[469]

As the BIA has stated:

 

In addition, the decisions of the United States Court of Appeals for the Third Circuit strongly suggest that it would find, at the very least, that a crime requiring only criminal negligence or no mens rea at all is not an offense that, by its nature, involves a substantial risk that physical force may be used in the course of committing the crime. See Francis v. Reno, 269 F.3d 162, 172-73 (3d Cir. 2001) (stating that vehicular homicide, which requires only proof of criminal negligence, is not an offense that, by its nature, involves a substantial risk that physical force may be used in its commission); United States v. Parson, 955 F.2d 858, 866 (3d Cir. 1992) (indicating that “use of physical force” refers to an intentional act, and that although a drunk driver may risk causing injury, in most cases he does not intend to “use” force to cause this harm). [470]

This question of the “use” of force is very closely related to the question of the intent required to trigger deportation under this category, i.e., whether the use of force must be intentional.  See § 7.59, infra.

 

            A possession offense may not involve sufficient “use” to qualify as a crime of violence.[471]

[468] Id. at 382 (internal citations omitted). 

[469] Jobson v. Ashcroft, 326 F.3d 367 (2d Cir. April 22, 2003) (New York conviction of manslaughter in the second degree under N.Y.P.L. § 125.15(1), is a not crime of violence under 18 U.S.C. § 16(b) and thus is not an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for deportation purposes, since the minimum criminal conduct required to violate the statute does not necessarily present a substantial risk that the defendant will intentionally use physical force against the person or property of another, because the scope of the law is broad; passive conduct or omissions alone are sufficient for conviction).

[470] Matter of Ramos, 23 I. & N. Dec. 336, 341-342 (BIA 2002).

[471] United States v. Fish, 368 F.3d 1200 (9th Cir. May 28, 2004) (Oregon conviction of possession of a destructive device, under Or. Rev. Stat. § 166.382, did not constitute “a crime of violence” under the United States Sentencing Guidelines to allow an increased offense level in determining sentencing).

Fifth Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE
United States v. Gonzalez-Chavez, __ F.3d __, 2005 WL 3196524 (5th Cir. Nov. 30, 2005) (aggravated battery under 784.045 of the Florida Statutes is a divisible statute, as the statute may be committed by any assault on a pregnant woman, including spitting, which does not involve the use, attempted use, or threatened use of force, and therefore may not be an aggravated felony crime of violence for sentencing purposes).
http://caselaw.lp.findlaw.com/data2/circs/5th/0440173cr0p.pdf

AGGRAVATED FELONY - CRIME OF VIOLENCE -- ASSAULT
Gonzalez-Garcia v. Gonzales, ___ F.3d ___, 2005 WL 3047411 (5th Cir. Nov. 16, 2005) (Texas conviction of assault, in violation of Tex. Penal Code Ann. 22.01(a)(3) ("intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative"), did not constitute a crime of violence aggravated felony under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), since "offensive or provocative contact" does not necessarily involve the use of physical force).
http://caselaw.lp.findlaw.com/data2/circs/5th/0460385cv0p.pdf

AGGRAVATED FELONY - CRIME OF VIOLENCE -- ASSAULT
Gonzalez-Garcia v. Gonzales, ___ F.3d ___, 2005 WL 3047411 (5th Cir. Nov. 16, 2005) (Texas conviction of assault, in violation of Tex. Penal Code Ann. 22.01(a)(3) ("intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative"), did not constitute a crime of violence aggravated felony under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), since "offensive or provocative contact" does not necessarily involve the use of physical force).
http://caselaw.lp.findlaw.com/data2/circs/5th/0460385cv0p.pdf

Seventh Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - DISCHARGING A FIREARM
United States v. Jaimes-Jaimes, ___ F.3d ___, 2005 WL 1083731 (7th Cir. May 4, 2005) (Wisconsin conviction for discharging a firearm into a vehicle or building, in violation of W.S.A. 941.20(2)(a), was not a conviction for a "crime of violence" so as to warrant a 16-level increase in the offense level under U.S.S.G. 2L1.2(b)(1)(A)(ii) for illegal reentry, since the elements of the offense of conviction did not require that the trier of fact conclude that defendant used or threatened use of physical force against the person of another).

Ninth Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - DISTINCTION BETWEEN USE OF FORCE AND INFLICTION OF INJURY - UNLAWFUL SEX WITH A MINOR
Valencia v. Gonzales, ___ F.3d ___, 2006 WL 522452 (9th Cir. Mar. 6, 2006) (California conviction of unlawful sexual intercourse with a person under 18 years of age, who is more than three years younger than the perpetrator, in violation of California Penal Code 261.5(c), for which a sentence of one year had been imposed, is not a crime of violence under 18 U.S.C. 16(b), and therefore not a crime of violence aggravated felony under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), for removal purposes, because the offense includes consensual sex with a person one day under 18 years of age, which does not create a substantial risk that force may be used in committing the offense"), withdrawing and replacing 431 F.3d 673 (9th Cir. December 12, 2005), distinguishing United States v. Asberry, 394 F.3d 712, 716-18 (9th Cir. 2005) (conviction for statutory rape of a person under the age of sixteen is categorically a crime of violence under U.S.S.G. 4B1.2(a)(2)[defined as an offense that poses a "serious potential risk of physical injury to another"], because consequences of sexual intercourse such as pregnancy and sexually transmitted disease fall within the meaning of "physical injury"): "Here, by contrast, the statute defines crime of violence by reference to the risk that physical force may be used to commit the crime, not the physical injuries that might result. The risk that physical force may be used is one that a minor's actual consent removes because, where the minor actually consents to sexual intercourse, force will not be necessary to overcome the minor's resistance.") (emphasis in original). http://caselaw.lp.findlaw.com/data2/circs/9th/0372028op.pdf

AGGRAVATED FELONY - CRIME OF VIOLENCE - SEXUAL BATTERY ILLEGAL REENTRY- SENTENCING
United States v. Lopez-Montanez, __ F.3d __ (9th Cir. Aug. 26, 2005) (sexual battery under California Penal Code 243.4, is not a categorical crime of violence under the federal Sentencing Guidelines, as the offense is not necessarily a "forcible" sex offense under U.S.S.G. 2L1.2, cmt. n. 1(B)(ii)). Compare Lisbey v. Gonzales, __ F.3d __ (9th Cir. Aug. 22, 2005) (sexual battery under California Penal Code 243.4 constitutes an aggravated felony for removal purposes, as the offense involves a substantial risk of physical force under 18 U.S.C. 16(b)).
http://caselaw.lp.findlaw.com/data2/circs/9th/0450260p.pdf

AGGRAVATED FELONY - CRIME OF VIOLENCE - DOMESTIC VIOLENCE
United States v. Nobriga, ___ F.3d ___ (9th Cir. May 20, 2005) (per curiam) (Hawaii conviction of abuse of a family or household member, in violation of Haw. Rev. Stat. 709-906(A), did not invariably constitute a conviction of a misdemeanor crime of domestic violence, under 18 U.S.C. 921(a)(33)(A)(ii), because it did not necessarily require the use of violent force against the body of another individual, since it also prohibited refusal to comply with the lawful order of a police officer, but the "physically abuse" prong "requires, at a minimum, a reckless use of physical force. See State v. Eastman, 81 Hawai'i 131, 913 P.2d 57, 66 (Haw.1996); see also State v. Miller, 105 Hawai'i 394, 98 P.3d 265, 266 n.1 (Haw.Ct.App.2004). "Recklessness" is an adequate mens rea to establish a "violent" use of force. See, e .g., United States v. Grajeda-Ramirez, 348 F.3d 1123, 1125 (9th Cir.2003), cert. denied, --- U.S. ----, 125 S.Ct. 863, 160 L.Ed.2d 781 (2005); United States v. Ceron-Sanchez, 222 F.3d 1169, 1172-73 (9th Cir.2000). Nobriga's AFHM conviction was therefore for a "violent use of force."); but this decision may have been undermined by Leocal v Ashcroft, 125 S.Ct. 377 (2004); see Lara-Cazares v. Gonzales, ___ F.3d ___ (9th Cir. May 23, 2005); Lara-Cazares v. Gonzales, ___ F.3d ___ (9th Cir. May 23, 2005).

AGGRAVATED FELONY - CRIME OF VIOLENCE - CONVICTION OF HAWAII OFFENSE DOES NOT CATEGORICALLY REQUIRE USE OF VIOLENT FORCE AND DOES NOT CONSTITUTE "CRIME OF DOMESTIC VIOLENCE" FOR PURPOSES OF FEDERAL FELON WITH GUN OFFENSE
United States v. Nobriga, ___ F.3d ___ (9th Cir. May 20, 2005) (per curiam) (Hawaii conviction of abuse of a family or household member, in violation of Haw. Rev. Stat. 709-906(A), did not invariably constitute a conviction of a misdemeanor crime of domestic violence, under 18 U.S.C. 921(a)(33)(A)(ii), because it did not necessarily require the use of violent force against the body of another individual, since it also prohibited refusal to comply with the lawful order of a police officer), following United States v. Belless, 338 F.3d 1063 (9th Cir. 2003).

Other

AGGRAVATED FELONY - CRIME OF VIOLENCE - VEHICULAR MANSLAUGHTER
See § 7.49