LaGuerre v. Mukasey, 526 F.3d 1037 (7th Cir. May 20, 2008) (Illinois conviction of domestic battery, in violation of 720 ILCS 5/12-3.2(a)(1) ["intentionally or knowingly without legal justification by any means: (1) Causes bodily harm to any family or household member."], qualifies as a crime of violence under 18 U.S.C. 16(a), and therefore under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), because, as 16(a) requires, it has as an element the use of physical force), following United States v. Upton, 512 F.3d 394, 405 (7th Cir. 2008) ("This provision of the statute unambiguously requires proving physical force: to sustain his conviction for domestic battery, the state had to prove that he [c]ause[d] bodily harm, which means that it had as an element the use ... of physical force against the person of another.").



The reasoning of Upton, however, is incorrect. There is a great difference between the element of causing bodily harm and the requirement of the use of physical force, in particular violent physical force. See Leocal v. Ashcroft, 543 U.S. 1, 9 (2004); see N. TOOBY & J. ROLLIN, AGGRAVATED FELONIES 5.19 (2006).