Seventh Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - DOMESTIC BATTERY
LaGuerre v. Mukasey, 526 F.3d 1037 (7th Cir. May 20, 2008) (per curiam) (Illinois conviction of domestic battery, in violation of 720 ILCS 5/12-3.2(a)(1) ["[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."], constituted a crime of violence, under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F), and 18 U.S.C. 16(a), for deportation purposes, 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..").

AGGRAVATED FELONY - CRIME OF VIOLENCE - BATTERY
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).

Ninth Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - CORPORAL INJURY OF A SPOUSE
United States v. Laurico-Yeno, ___ F.3d ___, 2010 WL 6393 (9th Cir. Jan. 4, 2010) (California conviction of corporal injury on a spouse, in violation of Penal Code 273.5(a), constituted a "crime of violence" for illegal re-entry sentencing purposes, because the intentional use of physical force against the person of another is an element of the statute, and the defendant failed to show there was a realistic probability that the statute would be applied to conduct outside the "crime of violence" definition).

NOTE: The petitioner pointed to published California cases that indicated that prosecution under Penal Code 273.5 included simple assaults resulting in a traumatic condition. People v. Gutierrez, 171 Cal.App.3d 944, 217 Cal.Rptr. 616, 620-21 (1985). Although the court cited Leocal for the proposition that the force must be violent, the ultimate decision seemed to rest on the failure of the petitioner to meet the Duenas "realistic probability" test. Counsel may be able to challenge this decision, either by locating a decision that shows application of Penal Code 273.5 in a simple battery context. Counsel may also be able to argue this decision should be reconsidered in light of Johnson v. United States, __ U.S. __ (Mar. 2, 2010) (the use of force must be "violent" in order to constitute a "crime of violence" for purpose of the Armed Career Criminal Act).

DOMESTIC VIOLENCE - CRIME OF VIOLENCE
Fernandez-Ruiz v. Gonzales, 410 F.3d 585 (9th Cir. June 1, 2005) (Arizona misdemeanor conviction of domestic violence assault, in violation of Ariz. Rev. Stat. § 13-1203(A)(1) or (2), which both require the use, attempted use, or threatened use of physical force against the person or property of another, therefore both qualify as crimes of violence under 18 U.S.C. § 16(a); the offenses were designated as a crimes of domestic violence under state law pursuant to Ariz. Rev. Stat. § 12-3601 - even though the state label is usually considered irrelevant because the state conviction must qualify under the federal definition of a ground of deportation), vacated on grant of rehearing en banc, 431 F.3d 1212 (9th Cir. Dec. 13, 2005).

DOMESTIC VIOLENCE - CRIME OF VIOLENCE
United States v. Nobriga, 408 F.3d 1178 (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 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").

CORPORAL INJURY ON SPOUSE - CRIME OF VIOLENCE
United States v. Hernandez-Hernandez, 374 F.3d 808 (9th Cir. June 30, 2004) (California misdemeanor conviction of corporal injury on spouse, in violation of Penal Code § 273.5(a), cannot constitute a crime of violence aggravated felony conviction, so as to support a 16-level enhancement of sentence for illegal re-entry under U.S.S.G. § 2L1.2(b)(1)(A)(ii), because it was a misdemeanor with a maximum possible sentence of one year in county jail).

CORPORAL INJURY ON SPOUSE - CRIME OF VIOLENCE
United States v. Jimenez, 258 F.3d 1120 (9th Cir. July 31, 2001) (California conviction for inflicting corporal injury on spouse was "aggravated felony," on which district court could rely to enhance sentence for illegal re-entry offense, though defendant was originally sentenced to probation with only a 365-day jail condition, and was not sentenced to two-year term of imprisonment until after he violated his probation), cert. denied, 122 S.Ct. 1115 (2002).