Safe Havens

 

This part of the crime of violence category requires that the offense has as an element the use, or attempted or threatened use, of “physical force against the person or property of another . . . .” [379]  An offense will be a safe haven if its elements require insufficient physical force to meet this requirement.  In Leocal v. Ashcroft,[380] the United States Supreme Court held that a conviction for driving under the influence did not constitute a crime of violence under either 18 U.S.C. § 16(a) or 16(b), because the mental intent element was insufficient.  In doing so, it pointed out that the “force” required for an offense to be considered a crime of violence must actually be violent in nature, as was Congress’s intent.  Therefore, “[i]nterpreting § 16 to encompass accidental or negligent conduct would blur the distinction between the ‘violent’ crimes Congress sought to distinguish for heightened punishment and other crimes.”[381]

 

            Federal courts of appeal have held to the same effect in analogous contexts.   In United States v. Belless,[382] the Ninth Circuit decided a criminal case that has significant implications for noncitizens charged with removal for domestic violence offenses and aggravated felony crimes of violence.  Belless holds that the 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.

            Under 8 U.S.C. § 16, the force used to constitute an aggravated felony crime of violence or a domestic violence offense for immigration purposes must be “destructive or violent force.”[383]  In Ye v. INS,[384] 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.”  In United States v. Belless,[385] the court noted: “Any touching constitutes ‘physical force’ in the sense of Newtonian mechanics. Mass is accelerated, and atoms are displaced. Our purpose . . . though, is to assign criminal responsibility, not to do physics.”[386] Battery of a spouse under statutes such as California Penal Code § 243(e), that include non-violent offensive touching within their sweep, therefore, should not be held to be a crime of violence aggravated felony or domestic violence offense as long as the record of conviction does not establish that the force used was more than mere offensive touching.  The same arguments might also be made with respect to statutes such as California Penal Code § 243(d) (misdemeanor battery with infliction of bodily injury, however slight).

 

            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.”[387]

 

A number of other circuits are in agreement,[388] so much so that this is now the majority view, particularly as buttressed by the United States Supreme Court’s decision in Leocal.

            In Belless, 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 immigration.[389]  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.”[390]  The court held that the kind of force contemplated by this statute did not rise to the level required to deem the offense one that had “the use of physical force” as an element.[391]  The court explained, “[a]ny touching constitutes ‘physical force’ in the sense of Newtonian mechanics.  Mass is accelerated, and atoms are displaced.”[392]  However, for 18 U.S.C. § 921(a)(33)(A)(ii), force must not be “de minimis” but rather the statute requires the “violent use of force against the body of another individual.”[393]  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.[394]  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 crimes of domestic violence and aggravated felony crimes of violence for immigration purposes.  

            This analysis is directly applicable to both the aggravated felony crime of violence[395] and the domestic violence ground for removal.[396]  Both these grounds of deportation use 18 U.S.C. § 16 to define the term “crime of violence.”  Section 16(a) looks to whether the underlying crime “has as an element the use, attempted use, or threatened use of physical force.”  This language is very similar to the language examined in Belless, requiring that the underlying offense have, “as an element, the use or attempted use of physical force, or threatened use of a deadly weapon.”[397]

 

            In determining whether a state assault and battery offense is an aggravated felony (or domestic violence) offense, the examining court must use a “categorical approach,” focusing on the elements of the offense to which the noncitizen entered a plea (as elucidated by the information in the record of conviction), rather than to the actions s/he took in commission of the offense.[398]  As the court did in Belless, any state assault and battery statute must be examined to determine the minimum conduct that would be required to sustain a finding that the offense is a crime of violence.[399]  In Belless, the court found that the minimum conduct punished by the Wyoming statute, unlawfully touching someone in a rude, insolent or angry manner, did not rise to the level of violent physical force required to constitute a crime of violence.[400]  The court distinguished the Wyoming statute from the Maine assault and battery statute, which criminalized “offensive physical contact,” because that latter statute had been limited by case law to “require [ ] more than a mere touching of another.”[401]  Even the slightest touching can constitute the offense of simple battery under state statutes such as California Penal Code § 242.[402]

            Applying the holding in Belless to the immigration context, a state assault and battery statute under which a conviction may be sustained where 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,[403] or as a noncitizen convicted of a domestic violence offense.[404]  The Ninth Circuit has in fact adopted this principle in immigration cases.[405]

 

            Fourth Degree assault under RCW § 9A.36.041 constitutes a divisible statute with respect to falling within the crime of violence aggravated felony deportation ground.

 

[F]ourth degree assault [in Washington] is not defined by statute and can be committed in three different ways: (1) intending to inflict bodily injury on another, accompanied with the apparent present ability to do so, (2) intentionally creating in another person reasonable apprehension and fear of bodily injury, and (3) intentionally committing an unlawful touching, regardless whether physical harm results. See WPIC 35.50.[406]

The reference is to the Washington Pattern Jury Instructions, WPIC 35.50. The third alternative offense contained within this divisible statute does not appear to be sufficiently violent to constitute a crime of violence or crime of domestic violence, within the meaning of 18 U.S.C. § 16(a).[407]

 

            This ruling may also have favorable implications for Sentencing Guidelines determinations regarding “crimes of violence” under various definitions.[408]

 

[379] Ibid.

[380] Leocal v. Ashcroft, ___ U.S. ___, 125 S.Ct. 377, 160 L.Ed.2d 271 (Nov. 9, 2004).

[381] Id. at 383.

[382] United States v. Belless, 338 F.3d 1063 (9th Cir. Aug. 11, 2003).

[383] 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 the 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). But cf. Matter of Martin, 23 I. & N. Dec. 491 (BIA 2002) (treating Connecticut assault statute as a crime of violence).

[384] 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).

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

[386] See also Flores v Ashcroft, 350 F.3d 666 (7th Cir. 2003) (Indiana statute prohibiting “rude, insolent or angry” touching that results in bodily injury, but not serious bodily injury, is not necessarily a crime of violence).

[387] Flores v. Ashcroft, 350 F.3d 666, at *4 (7th Cir. November 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 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).

[388] United States v. Venegas-Onelas, 348 F.3d 1273 (10th Cir. November 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 § 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 where 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).

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

[390] Id. at p. 1067. 

[391] Id. at p. 1067. 

[392] Id. at p. 1067-1068. 

[393] Id. at p. 1068. 

[394] Id. at p. 1068. 

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

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

[397]  18 U.S.C. § 921(a)(33)(A)(ii). 

[398] Taylor v. United States, 495 U.S. 575 (1990); see also United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir.  2001).

[399] Matter of Short, 20 I. & N. Dec. 136 (BIA 1989). 

[400] United States v. Belless, 338 F.3d 1063 at 1067-70 (9th Cir. Aug. 11, 2003).

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

[402] People v. Rocha, 3 Cal.3d 893 (1971).

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

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

[405] Singh v. Ashcroft, 386 F.3d 1228 (9th Cir. Oct. 21, 2004) (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).

[406] State v. Davis, 60 Wash. App. 813, 821 (1991).

[407] See United States v. Belless, 338 F.3d 1063 (9th Cir. Aug 11, 2003).

[408] United States v. Sandoval, 390 F.3d 1077 (9th Cir. Aug. 19, 2004) (Washington 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).