The largest group of domestic violence offenses falls into the “crime of violence” category, as defined by 18 U.S.C. § 16.  This same statute also defines “crime of violence” for aggravated felony deportation purposes.  See § § 7.41-7.60, supra.  All of the same “crime of violence” safe havens that apply to the aggravated felony ground apply here as well, with a few differences:

AGGRAVATED FELONY " CRIME OF VIOLENCE " 16(b) " ORDINARY CASE ANALYSIS UNCONSTITUTIONALLY VOID FOR VAGUENESS
Linus Chan, in The ordinary cases demise in criminal sentencing & its implications for immigration law, at Crimmigration.com, summarized the impact of Johnson v. United States as follows: After the Supreme Court announced the ordinary case method in James, the Board of Immigration Appeals (BIA), and a couple of federal circuit courts began to adopt it in immigration cases when deciding whether someone has committed a crime of violence under 18 U.S.C. 16(b). Section 16(b)s language is not an exact match to ACCAs residual clause, but isnt far off. Section 16(b) defines a crime of violence as a felony which, 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. Like the ACCAs residual clause, 16(b) requires an examination of risk, and also looks at whether force is used in the course of committing the offense. Two circuit courts called the phrases virtually identical. See Roberts v. Holder, 745 F.3d 928, 930 (8th Cir. 2014); Lopez-Cardona v. Holder, 662 F.3d 1110, 1113 (9th Cir. 2011). Moreover, the Ninth and Fifth Circuits applied the ordinary case from James to 16(b) cases. Rodriguez-Castellon v. Holder, 733 F.3d 847, 854 (9th Cir. 2013); Perez-Munoz v. Keisler, 507 F.3d 357, 363 (5th Cir. 2007). The BIA had begun applying the ordinary case method to 16(b) cases in 2011, see Matter of Ramon Martinez, 25 I&N Dec. 571 (BIA 2011), and just a few weeks before Johnson reiterated its support for the ordinary case method in Matter of Francisco-Alonzo, 26 I&N Dec 594 (BIA 2015) (analyzed on this blog here). In Francisco-Alonzo, the BIA relied heavily on the fact that James had not been overruled, and it saw no reason to question the rule when examining risk based definitions. The James ordinary method, it seemed, had become embedded in immigration law. The reliance on James as good precedent proved to be ill timed. On June 26, 2015, just three weeks after Francisco-Alonzo the United States Supreme Court not only overruled James in Johnson but also found that the residual clause of the ACCA and the ordinary case method unconstitutionally vague under the Due Process clause of the Fifth Amendment. The Court specifically criticized the ordinary case rule. It ties the judicial assessment of the risk to a judicially imagined ordinary case of a crime, not to real-world facts for statutory elements, the Court concluded. Johnson, No. 13-7120, slip op at 5. The Court wrote that such an exercise was too speculative and too unreliable to give guidance to either defendants or judges. The Court explained that other risk-assessment statutes did their work by gauging the riskiness of conduct in which an individual defendant engages on a particular occasion. As a general matter, we do not doubt the constitutionality of laws that call for an application of a qualitative standard such as substantive risk to real-word conduct Id. at 12. Ultimately the residual clause was vague because it requires application of the serious potential risk standard to an idealized ordinary case of the crime. Because the elements necessary to determine the imaginary ideal are uncertain both in nature and degree of effect, the Court concluded, this abstract inquiry offers significantly less predictability than one [t]hat deals with the actual, not with an imaginary condition other than the facts. Id. (quoting International Harvester Co. of America v. Kentucky, 234 U. S. 216, 223 (1914)).

AGGRAVATED FELONY " CRIME OF VIOLENCE " USE OF FORCE " ACCA
United States v. Castleman, ___ U.S. ___, 2014 WL 1225196 (Mar. 26, 2014) (Tennessee misdemeanor conviction of having intentionally or knowingly cause[d] bodily injury to the mother of his child, in violation of Tenn.Code Ann. 39"13"111(b), qualifies as a misdemeanor crime of domestic violence under Armed Career Criminals Act; element of violence is satisfied by offensive touching; this holding does not apply to 18 U.S.C. 16). NOTE: In footnote 4 of this decision, the Court expressly stated that such offensive touching convictions do not qualify as deportable crime of domestic violence convictions for immigration purposes under INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i) or crimes of violence aggravated felonies, as defined under 18 U.S.C. 16, for purposes of the aggravated felony definition, INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F) .

AGGRAVATED FELONY " CRIME OF VIOLENCE " USE OF FORCE " ACCA
United States v. Castleman, ___ U.S. ___, 2014 WL 1225196 (Mar. 26, 2014) (Tennessee misdemeanor conviction of having intentionally or knowingly cause[d] bodily injury to the mother of his child, in violation of Tenn.Code Ann. 39"13"111(b), qualifies as a misdemeanor crime of domestic violence under Armed Career Criminals Act; element of violence is satisfied by offensive touching; this holding does not apply to 18 U.S.C. 16). NOTE: In footnote 4 of this decision, the Court expressly stated that such offensive touching convictions do not qualify as deportable crime of domestic violence convictions for immigration purposes under INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i) or crimes of violence aggravated felonies, as defined under 18 U.S.C. 16, for purposes of the aggravated felony definition, INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F).

DOMESTIC VIOLENCE - CRIME OF VIOLENCE - BATTERY
Johnson v. United States, ___ U.S. ___ (Mar. 1, 2010) (Florida conviction of battery by "[a]ctually and intentionally touch[ing]" another person, in violation of Fla. Stat. 784.03(1)(a), (2) (2003), does not constitute a "violent felony" under the Armed Career Criminal Act, 18 U.S.C. 924(e)(1) because it does not require the use of physical force).

DOMESTIC VIOLENCE - INTENT REQUIREMENT - RECKLESS BUT UNINTENTIONAL MENS REA INSUFFICIENT TO CONSTITUTE CRIME OF DOMESTIC VIOLENCE - ARIZONA ASSAULT
Fernandez-Ruiz v. Gonzales, ___ F.3d ___ (9th Cir. October 26, 2006)(en banc) (Arizona conviction of domestic violence assault, in violation of Ariz. Rev. Stats. 13-1203(A)(1), 13-601 ["[i]ntentionally, knowingly, or recklessly causing any physical injury to another"], did not constitute a crime of violence under 18 U.S.C. 16(a), and is therefore not a domestic violence conviction, within the meaning of INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i), for immigration purposes, because the relevant Arizona statute permits conviction when a defendant recklessly [i.e., with awareness and conscious disregard of a risk], but unintentionally causes physical injury to another, and because the petitioner's documents of conviction do not prove he intentionally used force against another), following Lara-Cazares v. Gonzales, 308 F.3d 1217 (9th Cir. 2005) (gross negligence insufficient to constitute crime of violence), and overruling United States v. Ceron-Sanchez, 222 F.3d 1169 (9th Cir. 2000); Park v. INS, 252 F.3d 1018, 1024-1025 (9th Cir. 2001).

Fourth Circuit

DOMESTIC VIOLENCE - NORMAL PREGNANCY FALLS WITHIN MEANING OF GREAT BODILY INJURY
People v. Cross, 45 Cal.4th 58, 190 P.3d 706 (Aug. 28, 2008) (great bodily injury enhancement of sentence for committing a lewd act on a child under the age of 14, affirmed where pregnancy without medical complications is sufficient to find great bodily injury).

Ninth Circuit

DOMESTIC VIOLENCE - DOMESTIC RELATIONSHIP -- DIVISIBLE STATUTE
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 constitute a conviction of a misdemeanor crime of domestic violence, under 18 U.S.C. 921(a)(33)(A)(ii), because neither the Hawaii statute standing alone nor the judicially noticeable facts establish that the victim of his Hawaii offense had the required domestic relationship to the defendant; the Hawaii statute is divisible with respect to this federal requirement because it allows conviction if the violence occurs between "persons jointly residing or formerly residing in the same dwelling unit" and therefore includes roommates who have no other, more personal relationship, whereas each of the federal categories of domestic violence, in contrast, specifies particular personal relationships between the victim and the defendant, so a conviction under this statute is not categorically a crime of domestic violence under the federal firearms statute).

Lower Courts of Ninth Circuit

CAL SAFE HAVENS - ASSAULT - ELEMENTS
People v. Chance, 44 Cal.4th 1164, 189 P.3d 971 (Aug. 18, 2008) (California assault is defined as, "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another;" the term "present ability" includes situations where the "defendant is several steps away from actually inflicting injury, or if the victim is in a protected position so that injury would not be immediate, in the strictest sense of that term;" the term "injury" includes "any attempt to apply physical force to the victim, and includes even injury to the victim's feelings.").

Other

RESOURCES " DOMESTIC VIOLENCE & CRIME OF VIOLENCE
NIP-NLG and Immigrant Defense Project have written an advisory on the Supreme Courts recent decision in U.S v. Castleman. The advisory explains why this decision should have no negative impact on immigration law and how it may even support arguments to narrow the domestic violence and aggravated felony removal grounds. The advisory is located at: http://www.nationalimmigrationproject.org/publications.htm

DOMESTIC VIOLENCE
Attorney General Opinion, Opinions from Office of Legal Counsel, Vol. 31, May 17, 2007 ("A "misdemeanor crime of domestic violence" under 18 U.S.C. 922(g)(9) is limited to those offenses of which the use or attempted use of physical force or the threatened use of a deadly weapon is an element that is, a factual predicate specified by law and required to support a conviction. Where the legal definition of the crime at issue contains a disjunctive element (which requires proof of only one of multiple specified factual predicates), only one subpart of which requires the use or attempted use of physical force or the threatened use of a deadly weapon, application of the prohibition in section 922(g)(9) will turn on whether the fact finder found that the subpart meeting the "misdemeanor crime of domestic violence" definition had been proved (or whether the defendant pleaded guilty to that subpart). The answer to that question may be gleaned from the record of conviction or the supporting record of proceedings in the court of conviction. Police reports cannot answer that question. The above interpretations also govern background checks by the Federal Bureau of Investigation for firearms transfers under the National Instant Background Check System, but additional materials, including police reports, may be relied upon by the NICS for certain limited purposes.")