Safe Havens

 

Simple battery, generally consisting of “any willful and unlawful use of force or violence upon the person of another,”[132] particularly with a sentence imposed of less than one year, should be a safe haven from deportability.

            Although simple battery involves the use of force, 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.[133]  In United States v. Belless,[134] the Ninth Circuit held 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 federal illegal possession of a firearm statute’s definition of a crime of domestic violence,[135] since that definition had been limited by judicial decision to “require [ ] more than a mere touching of another.”[136]  Many simple battery statutes, including California’s, are also violated by mere touching, and so do not arise to the level of violence required by Congress to constitute a crime of violence.[137]

 

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,[138] or as a noncitizen convicted of a domestic violence offense.[139]  See § § 7.47, 7.153, 8.10, supra.

           

            The Department of Homeland Security may argue that a felony simple battery conviction falls within 18 U.S.C. § 16(b).  However, the minimum conduct that is required to sustain a conviction under many simple battery statutes is arguably not the type of act that, by its nature, involves a substantial risk that physical force (in the sense of actual violence, rather than a mere touching) against the person or property of another may be used in the course of committing the offense.  The Supreme Court, in Leocal, has favored a common-sense approach to this definition.  See § 7.45, supra.

 

Thus, even with a sentence imposed of one year or more, a conviction for simple battery should not constitute an aggravated felony crime of violence or a domestic violence offense if the statute is violated by mere touching, however slight. 

Simple battery also does not require, as an element, that the defendant have a domestic relationship with the victim, or that the victim be a child.  Therefore, depending upon the jurisdiction in which the crime occurred, and the record of conviction, a simple battery conviction should not be considered a crime of domestic violence or a crime of child abuse.  See § 7.157, supra.  For the same reason, the offense should not be considered aggravated felony sexual abuse of a minor.[140]  See § 7.96-7.99, supra.

 

            Finally, simple assault or battery has traditionally been found not to involve moral turpitude.  See § 8.10, supra.

 

[132] E.g., California Penal Code § 242.

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

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

[135] 18 U.S.C. § 922(g)(9).

[136] United States v. Belless, 338 F.3d 1063, 1068 (9th Cir. Aug. 11, 2003), quoting United States v. Nason, 269 F.3d 10, 16 (1st Cir. 2001).

[137] See People v. Rocha, 479 P.2d 372, 377 n. 12 (Cal. 1971) (“. . . ‘the least touching’ may constitute battery . . . .  [F]orce against the person is enough, it need not be violent or severe, it need not cause bodily harm or even pain, and it need not leave any mark.”).

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

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

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