Criminal Defense of Immigrants

(A)  Assault.  Even a misdemeanor assault conviction with a one-year suspended sentence imposed may qualify as an aggravated felony crime of violence.  Therefore, even a conviction for simple assault is potentially devastating for a noncitizen who may have committed only the most minor of offenses.  Where possible, a qualifying sentence should be avoided.[508]

Fortunately, a number of circuits now recognize that to qualify as a crime of violence, the assault must actually involve violent force, and that a number of state assault statutes may be committed with only an unwanted or de minimis touching.  Therefore a number of minor assault of battery offenses can be argued not to be crimes of violence because they do not necessarily require violent force to convict.[509]  See § § 19.38, 19.45, supra.

There are many different levels and forms of assault, from simple assault to aggravated sexual assault on a child with a deadly weapon resulting in great bodily injury.  Counsel must apply a categorical analysis, described in Chapter 16, supra, to determine the exact set of elements of the offense of conviction, and to argue that the immigration authorities are not allowed to look beyond this set of elements to determine, for example, whether the assault involved a spouse or a child.  See § 16.7, supra.

[508] See § 19.10, supra.

[509] See § 19.38, supra.