Aggravated Felonies

 

The aggravated felony crime of violence definition requires that the offense must have as an element the use, or attempted or threatened use, of “physical force.”[125]  Under 18 U.S.C. § 16, the force used to constitute an aggravated felony crime of violence immigration purposes must be “destructive or violent force.”[126]  In Ye v. INS, the Ninth Circuit agreed with the Seventh Circuit that “the force necessary to constitute a crime of violence [under 18 U.S.C. § 16] … must actually be violent in nature.”[127]   In Flores v. Ashcroft, the Seventh Circuit explained:

 

Section 16(a) refers to the “use of physical force.” Every battery entails a touch, and it is impossible to touch someone without applying 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 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 “contact” side.[128]

 

A number of other circuits are in agreement, so much so that this is now the majority view.[129]  However, some circuits disagree.[130]

            In United States v. Belless,[131] the Ninth Circuit illustrated the distinction between “force” as that term is used in state statutes defining minor assault and battery offenses, and “physical force” as that term is used under federal law.[132]  The court examined whether defendant’s prior Wyoming conviction for domestic violence was one that had as an element the use or attempted use of “physical force,” as that term is construed under federal law.  Specifically, the Court examined 18 U.S.C. § 921(a)(33)(A)(ii), which defines “crime of violence” for purposes of 18 U.S.C. § 922(g)(9), a federal criminal offense which prohibits those who have been convicted of a misdemeanor crime of domestic violence from possessing a firearm.  The Wyoming statute provided that one could be convicted if “he unlawfully touches another in a rude, insolent or angry manner.”[133]  The court held that the kind of force contemplated by this statute did not rise to the level required by congress to constitute an offense that had “the use of physical force” as an element.[134]  The court explained, “[a]ny touching constitutes ‘physical force’ in the sense of Newtonian mechanics.  Mass is accelerated, and atoms are displaced.”[135]  However, to qualify as a crime of violence under 18 U.S.C. § 921(a)(33)(A)(ii), force must not be “de minimis.”  The statute requires instead the “violent use of force against the body of another individual.”[136]  The court pointed out that under the Wyoming statute, merely jabbing a finger into another’s chest in an “ungentlemanly manner” (as Nixon did to Khruschev in a 1959 meeting) would be sufficient to sustain a conviction.[137]  It held that this minimal level of force was insufficient, however, to constitute a crime of domestic violence under the federal firearm statute, which is equivalent to the 18 U.S.C. § 16(a) definition of crime of violence used as a requirement for aggravated felony crimes of violence for immigration purposes.  

 

            The court distinguished the Wyoming statute from the Maine assault and battery statute, which criminalized “offensive physical contact,” because the latter statute had been limited by case law to “require [ ] more than a mere touching of another.”[138]  The elements of each statute of conviction must be individually analyzed.[139]

 

            Applying the holding in Belless to the immigration context, a state assault and battery statute under which a conviction may be sustained by proof that the defendant merely touched another person (however rudely or offensively) cannot, by itself, sustain a finding that a noncitizen has committed a crime of violence under 18 U.S.C. § 16(a), and therefore cannot sustain a finding that the noncitizen is removable as an aggravated felon for a crime of violence,[140] or as a noncitizen convicted of a domestic violence offense.[141]  The Ninth Circuit has in fact adopted this principle in immigration cases.[142]

 

This analysis is applicable to the domestic violence ground for removal, which also directly refers to 18 U.S.C. § 16.[143]  This ruling may also have favorable implications for Sentencing Guidelines determinations regarding “crimes of violence” under various definitions.[144]

[125] 18 U.S.C. § 16.

[126] Matter of Small, 23 I. & N. Dec. 448, 449, n.1 (BIA 2002); see also Ye v. INS, 214 F.3d 1128 (9th Cir. 2000) (quoting Solorzano-Patlan v. INS, 207 F.3d 869, 875 n.10 (7th Cir. 2000) (“[T]he force necessary to constitute a crime of violence [ ] must actually be violent in nature.”)); United States v. Lucio-Lucio, 347 F.3d 1202 (10th Cir. 2003) (reversing district court to hold Colorado DUI conviction is not a crime of violence); Chrzanoski v. Ashcroft, 327 F.3d 188 (2d Cir. 2002) (holding that conviction under Connecticut assault statute is not a crime of violence); Flores v. Ashcroft, 350 F.3d 666 (7th Cir. Nov. 26, 2003) (reversing BIA to find that noncitizen convicted under Indiana battery statute was not deportable for having a crime of domestic violence; state statute that prohibits unlawful intentional touching, but does not require intent to injure, is not necessarily crime of violence under 18 U.S.C. § 16(a)).  But cf. Matter of Martin, 23 I. & N. Dec. 491 (BIA 2002) (treating Connecticut assault statute as a crime of violence).

[127] Ye v. INS, 214 F.3d 1128, 1133 (9th Cir. 2000), quoting Solorzano-Patlan v. INS, 207 F.3d 869, 874-875 (7th Cir. 2000).

[128] Flores v. Ashcroft, 350 F.3d 666 (7th Cir. Nov. 26, 2003) (Indiana conviction of misdemeanor battery, in violation of Ind.Code § 35-42-2-1, which may be based on any touching, however slight, done in a rude, insolent, or angry manner, in which any bodily injury, however minor, results, does not constitute a crime of violence within the meaning of 18 U.S.C. 16(a), since the elements do not include a sufficiently violent act where there is no intent to injure, merely an intent to touch, required).

[129] United States v. Gonzalez-Chavez, 432 F.3d 334 (5th Cir. Nov. 30, 2005) (Florida conviction of aggravated battery under § 784.045 of the Florida Statutes is divisible, 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); United States v. Venegas-Onelas, 348 F.3d 1273 (10th Cir. Nov. 14, 2003) (“Force,” as used in the definition of a “crime of violence,” is “synonymous with destructive or violent force.” United States v. Landeros-Gonzales, 262 F.3d 424, 426 (5th Cir. 2001) (quoting United States v. Rodriguez-Guzman, 56 F.3d 18, 20 n.8 (5th Cir. 1995); see also Lucio-Lucio, 347 F.3d 1202, at 1204 (explaining that 18 U.S.C. § 16(b) calls to mind “active violence”) (quotation omitted); Bazan-Reyes v. INS, 256 F.3d 600, 611 (7th Cir. 2001) (“[W]e found the term ‘physical force’ in 18 U.S.C. § 16(b) refers to actual violent force.”; court recognized United States v. Chapa-Garza, 243 F.3d 921 (5th Cir. 2001) distinction between offenses involving substantial risk that injury will result (not a crime of violence) and offenses in which the defendant will intentionally employ force against the person or property of another in order to effectuate the commission of the offense (crime of violence), and the requirement that the risk of force involve intentional, rather than accidental, physical force).

[130] See United States v. Treto-Martinez, 421 F.3d 1156 (10th Cir. Sept. 7, 2005) (Kansas conviction of aggravated battery against a law enforcement officer, in violation of K.S.A. § 21-3414(a)(1)(C), is a crime of violence for sentencing purposes; “[a]lthough not all physical contact performed in a rude, insulting or angry manner would rise to the level of physical force, we conclude that all intentional physical contact with a deadly weapon done in a rude, insulting or angry manner does constitute physical force under § 2L1.2(b)(1)(A)”); United States v. Smith, 171 F.3d 617, 621 n.2 (8th Cir. 1999).  See also United States v. Nason, 269 F.3d 10, 20 (1st Cir. Oct. 19, 2001) (Maine conviction for assault, under 17-A M.R.S.A. § 207 qualifies as a “crime of violence” for purposes of 18 U.S.C. § 922(g) (felon with a firearm), since the minimum conduct of “offensive physical contact,” “invariably emanate[s] from the application of some quantum of physical force” which is sufficient to constitute the use of physical force for purposes of defining the offense as a crime of violence).

[131] United States v. Belless, 338 F.3d 1063 (9th Cir. 2003) (Wyoming battery statute encompasses less violent behavior than that required to sustain a finding of use or attempted use of physical force, to serve as a predicate offense under the 18 U.S.C. § 922(g)(9) illegal possession of a firearm statute’s definition of a crime of domestic violence).

[132]  United States v. Belless, 338 F.3d 1063 (9th Cir. 2003). 

[133] Id. at p. 1067. 

[134] Ibid. 

[135] Id. at p. 1067-1068. 

[136] Id. at p. 1068. 

[137] Ibid. 

[138] Id. at 1068 (quoting United States v. Nason, 269 F.3d 10, 16 (1st Cir. 2001).

[139] The California battery statute, for example, is like that of Wyoming, since even the slightest touching can constitute the offense of simple battery under California Penal Code § 242.  People v. Rocha, 3 Cal.3d 893 (1971).  Washington state’s Fourth Degree assault, under RCW § 9A.36.041, is similar.  See State v. Davis, 60 Wash. App. 813, 821 (1991).

[140] INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F).

[141] INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i).

[142] Singh v. Ashcroft, 386 F.3d 1228 (9th Cir. Oct. 21, 2004) (Oregon conviction under Oregon Revised Statute § 166.065(1)(a)(A), punishing intentionally harassing or annoying another person by subjecting that person to offensive physical contact, is not a crime of violence, and therefore not a crime of domestic violence for immigration purposes, since the force required to commit the offense, including spitting, is not necessarily “violent” force).

[143] INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i).

[144] United States v. Sandoval, 390 F.3d 1077 (9th Cir. Aug. 19, 2004) (Washington conviction of assault in the third degree is not a crime of violence for sentencing purposes since the statute may be violated through an unlawful touching that does not involve substantial physical force or seriously risk physical injury).