(B)  Offenses Falling Under 18 U.S.C. § 16(a).  The first prong of the crime of violence definition includes “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another . . . .”[93]  There are a number of safe havens with respect to this category.

 

(1)  Insufficient Force.  If the elements of the offense of conviction are satisfied by the slightest touching, or de minimus force, cases have consistently held they require insufficient violence to be considered “crimes of violence,” and therefore cannot fall within the “crime of domestic violence” conviction ground of deportation.  See § 19.38, supra.[94]

 

                (2)  Insufficient Intent.  An offense that may be committed by mere negligence,[95] or as a strict liability offense, is a safe haven that cannot constitute a crime of violence.[96]  The use of force necessary to constitute a crime of violence must be intentional,[97] and thus an offense with a mental element of mere recklessness or gross negligence is arguably also insufficient to constitute a crime of violence.[98]  The Supreme Court has not yet ruled on whether recklessness is a sufficient mens rea to constitute a crime of violence. [99]  Recent federal circuit decisions are virtually unanimous, however, in concluding that mere recklessness is an insufficient intent to constitute a crime of violence, under the reasoning, if not the holding, of Leocal.[100]  See § 19.40, supra.

[93] 18 U.S.C. § 16(a).

[94] Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9th Cir. June 15, 2006) (California misdemeanor conviction of battery, in violation of Penal Code Penal Code § 242 is not categorically a “crime of violence” within the meaning of 18 U.S.C. §   16(a), because the “force or violence” element requires neither force capable of hurting or causing injury nor violence in the usual sense of the term since the least touching suffices), implicitly overruling United States v. Robinson, 967 F.2d 287 (9th Cir. 1992) (simple battery is crime of violence under U.S.S.G. §   4B1.1 (1989), since contrary higher authorities were later decided, e.g., United States v. Corona-Sanchez, 291 F.3d 1201, 1203 (9th Cir. 2002) (en banc), and United States v. Rivera-Sanchez, 247 F.3d 905, 908-09 (9th Cir. 2001) (en banc), and Leocal v. Ashcroft, 543 U.S. 1, 11 (2004).

[95] United States v. Pimental-Flores, 339 F.3d 959 (9th Cir. Aug. 11, 2003) (Washington conviction of third degree assault in violation of court order, under Rev. Code of Washington § 26.50.110(4) may fail to trigger a 16-level illegal re-entry sentence enhancement, as a crime of violence under U.S.S.G. § 2L1.2 (2001), because the statute proscribes merely negligent assault).

[96] United States v. Contreras-Salas, 387 F.3d 1095 (9th Cir. Nov. 3, 2004) (Nevada conviction of child abuse under Nev. Rev. Statutes § 200.508, does not qualify as a crime of violence for purposes of enhancement of sentence for unlawful re-entry after deportation, since statute may be violated by negligence alone, and record of conviction was unclear as to level of intent).

[97] United States v. Vargas-Duran, 356 F.3d 598 (5th Cir. Jan. 8, 2004) (Texas conviction of intoxication assault — that may be committed “by accident or mistake” — in violation of Tex. Penal Code Ann. § 49.07 (1994), did not constitute a crime of violence, and so was not an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for purposes of a 16-level sentence enhancement for illegal re-entry under U.S.S.G. § 2L1.2(b)(1)(A)(ii), Application Note 1(B)(ii)(I) (2001), because the crime of violence definition requires that the use of force to be intentional).

[98] United States v. Dominguez-Hernandez, 98 Fed.Appx. 331 (5th Cir. May 21, 2004) (unpublished) (Texas conviction of involuntary manslaughter, in violation of Texas Penal Code § 19.04(a)(1) (Vernon 2003) (“recklessly causes the death of an individual”), with six-year prison sentence, does not constitute a crime of violence aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), for purposes of a 16-level enhancement of illegal re-entry sentence under USSG § 2L1.2(b)(1)(A)(ii) (Nov. 1, 2000), since the statute of conviction does not require that government establish use of intentional physical force to obtain conviction).

[99] The Supreme Court expressly failed to address whether a state or federal offense that required proof of the reckless use of force against the person or property of another qualified as a crime of violence. Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377, 384 (Nov. 9, 2004).

[100] E.g., United States v. Torres-Villalobos, 477 F.3d 978 (8th Cir. Feb. 22, 2007) (Minnesota conviction for second-degree manslaughter, in violation of Minn. Stat. § 609.205, was not a “crime of violence” under 18 U.S.C. § 16 because the offense can be committed with mere reckless intent); United States v. Nobriga, 474 F.3d 561, (9th Cir. Dec. 29, 2006) (Hawaii conviction for Abuse of a Family or Household Member, in violation of Hawaii Revised Statutes § 709-906(1), did not involve the “violent use of force,” as required under Armed Career Criminal Act, 18 U.S.C. § 921(a)(33)(A)(ii), under a modified categorical analysis, since nothing in the record of conviction establishes that the defendant acted with a mental state greater than recklessness); Fernandez-Ruiz v. Gonzales, 466 F.3d 1121 (9th Cir. Oct. 26, 2006) (en banc) (Arizona conviction of domestic violence assault, in violation of Ariz. Rev. Stats. § § 13-1203(A)(1), 13-601 [“[i]ntentionally, knowingly, or recklessly causing any physical injury to another”], did not constitute a crime of violence under 18 U.S.C. § 16(a), and is therefore not a domestic violence conviction, within the meaning of INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i), for immigration purposes, because the relevant Arizona statute permits conviction when a defendant recklessly [i.e., with awareness and conscious disregard of a risk], but unintentionally causes physical injury to another, and because the petitioner’s documents of conviction do not prove he intentionally used force against another), following Lara-Cazares v. Gonzales, 308 F.3d 1217 (9th Cir. 2005) (gross negligence insufficient to constitute crime of violence), and overruling United States v. Ceron-Sanchez, 222 F.3d 1169 (9th Cir. 2000); Park v. INS, 252 F.3d 1018, 1024-1025 (9th Cir. 2001); Singh v. Gonzales, 432 F.3d 533, (3d Cir. Jan. 3, 2006); Tran v. Gonzales, 414 F.3d 464, (3d Cir. July 12, 2005); Oyebanji v. Gonzales, 418 F.3d 260 (3d Cir. Aug. 11, 2005); Bejarano-Urrutia v. Gonzales, 413 F.3d 444 (4th Cir. July 5, 2005); United States v. Perez-Vargas, 414 F.3d 1282 (10th Cir. 2005); Popal v. Gonzales, 416 F.3d 249, (3d Cir. July 29, 2005); see Lara-Cazares v. Gonzales, 408 F.3d 1217 (9th Cir. May 23, 2005) (gross negligence insufficient); Garcia v. Gonzales, 455 F.3d 465 (4th Cir. July 26, 2006).

AGGRAVATED FELONY " CRIME OF VIOLENCE " 16(b) " ORDINARY CASE ANALYSIS UNCONSTITUTIONALLY VOID FOR VAGUENESS
Linus Chan, in The ordinary cases demise in criminal sentencing & its implications for immigration law, at Crimmigration.com, summarized the impact of Johnson v. United States as follows: After the Supreme Court announced the ordinary case method in James, the Board of Immigration Appeals (BIA), and a couple of federal circuit courts began to adopt it in immigration cases when deciding whether someone has committed a crime of violence under 18 U.S.C. 16(b). Section 16(b)s language is not an exact match to ACCAs residual clause, but isnt far off. Section 16(b) defines a crime of violence as a felony which, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. Like the ACCAs residual clause, 16(b) requires an examination of risk, and also looks at whether force is used in the course of committing the offense. Two circuit courts called the phrases virtually identical. See Roberts v. Holder, 745 F.3d 928, 930 (8th Cir. 2014); Lopez-Cardona v. Holder, 662 F.3d 1110, 1113 (9th Cir. 2011). Moreover, the Ninth and Fifth Circuits applied the ordinary case from James to 16(b) cases. Rodriguez-Castellon v. Holder, 733 F.3d 847, 854 (9th Cir. 2013); Perez-Munoz v. Keisler, 507 F.3d 357, 363 (5th Cir. 2007). The BIA had begun applying the ordinary case method to 16(b) cases in 2011, see Matter of Ramon Martinez, 25 I&N Dec. 571 (BIA 2011), and just a few weeks before Johnson reiterated its support for the ordinary case method in Matter of Francisco-Alonzo, 26 I&N Dec 594 (BIA 2015) (analyzed on this blog here). In Francisco-Alonzo, the BIA relied heavily on the fact that James had not been overruled, and it saw no reason to question the rule when examining risk based definitions. The James ordinary method, it seemed, had become embedded in immigration law. The reliance on James as good precedent proved to be ill timed. On June 26, 2015, just three weeks after Francisco-Alonzo the United States Supreme Court not only overruled James in Johnson but also found that the residual clause of the ACCA and the ordinary case method unconstitutionally vague under the Due Process clause of the Fifth Amendment. The Court specifically criticized the ordinary case rule. It ties the judicial assessment of the risk to a judicially imagined ordinary case of a crime, not to real-world facts for statutory elements, the Court concluded. Johnson, No. 13-7120, slip op at 5. The Court wrote that such an exercise was too speculative and too unreliable to give guidance to either defendants or judges. The Court explained that other risk-assessment statutes did their work by gauging the riskiness of conduct in which an individual defendant engages on a particular occasion. As a general matter, we do not doubt the constitutionality of laws that call for an application of a qualitative standard such as substantive risk to real-word conduct Id. at 12. Ultimately the residual clause was vague because it requires application of the serious potential risk standard to an idealized ordinary case of the crime. Because the elements necessary to determine the imaginary ideal are uncertain both in nature and degree of effect, the Court concluded, this abstract inquiry offers significantly less predictability than one [t]hat deals with the actual, not with an imaginary condition other than the facts. Id. (quoting International Harvester Co. of America v. Kentucky, 234 U. S. 216, 223 (1914)).

AGGRAVATED FELONY " CRIME OF VIOLENCE " USE OF FORCE " ACCA
United States v. Castleman, ___ U.S. ___, 2014 WL 1225196 (Mar. 26, 2014) (Tennessee misdemeanor conviction of having intentionally or knowingly cause[d] bodily injury to the mother of his child, in violation of Tenn.Code Ann. 39"13"111(b), qualifies as a misdemeanor crime of domestic violence under Armed Career Criminals Act; element of violence is satisfied by offensive touching; this holding does not apply to 18 U.S.C. 16). NOTE: In footnote 4 of this decision, the Court expressly stated that such offensive touching convictions do not qualify as deportable crime of domestic violence convictions for immigration purposes under INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i) or crimes of violence aggravated felonies, as defined under 18 U.S.C. 16, for purposes of the aggravated felony definition, INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F) .

AGGRAVATED FELONY " CRIME OF VIOLENCE " USE OF FORCE " ACCA
United States v. Castleman, ___ U.S. ___, 2014 WL 1225196 (Mar. 26, 2014) (Tennessee misdemeanor conviction of having intentionally or knowingly cause[d] bodily injury to the mother of his child, in violation of Tenn.Code Ann. 39"13"111(b), qualifies as a misdemeanor crime of domestic violence under Armed Career Criminals Act; element of violence is satisfied by offensive touching; this holding does not apply to 18 U.S.C. 16). NOTE: In footnote 4 of this decision, the Court expressly stated that such offensive touching convictions do not qualify as deportable crime of domestic violence convictions for immigration purposes under INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i) or crimes of violence aggravated felonies, as defined under 18 U.S.C. 16, for purposes of the aggravated felony definition, INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F).

DOMESTIC VIOLENCE - CRIME OF VIOLENCE - BATTERY
Johnson v. United States, ___ U.S. ___ (Mar. 1, 2010) (Florida conviction of battery by "[a]ctually and intentionally touch[ing]" another person, in violation of Fla. Stat. 784.03(1)(a), (2) (2003), does not constitute a "violent felony" under the Armed Career Criminal Act, 18 U.S.C. 924(e)(1) because it does not require the use of physical force).

AGGRAVATED FELONY " DOMESTIC VIOLENCE " CORPORAL INJURY TO SPOUSE
Banuelos-Ayon v. Holder, 611 F.3d 1080, 1083 (9th Cir. 2010) (California conviction of corporal injury of a spouse constitutes a crime of violence, and thus is a crime of domestic violence, INA 237(a)(2)(E)(i), 8 U.S.C. 237(a)(2)(E)(i), for immigration purposes).

BIA

DOMESTIC VIOLENCE " CRIME OF VIOLENCE
Matter of Velasquez, 25 I. & N. Dec. 278 (BIA 2010) (In light of the decision of the United States Supreme Court in Johnson v. United States, 130 S. Ct. 1265 (2010), that because the Virginia statute reaches conduct that cannot be classified as violent force, the respondents offense is not categorically a crime of violence and thus cannot be classified as a categorical crime of domestic violence for purposes of section 237(a)(2)(E) of the Act.).

First Circuit

DOMESTIC VIOLENCE " ASSAULT ON SPOUSE
Sauceda v. Lynch, ___ F.3d ___, 2016 WL 1612848 (1st Cir. Apr. 22, 2016) (on rehearing) (Maine conviction for assault on spouse, in violation of Me. Rev. Stat. Ann. tit. 17"A, 207(1)(A) (intentionally, knowingly or recklessly causes bodily injury or offensive physical contact to another person.), is not necessarily a crime of domestic violence, since the statute is divisible between bodily injury (domestic violence) and offensive physical contact (non-domestic violence)).

DOMESTIC VIOLENCE " ASSAULT ON SPOUSE
Peralta Sauceda v. Lynch, 804 F.3d 101 (1st Cir. Oct. 14, 2015) (Maine conviction of assault on wife, in violation of Me.Rev.Stat. Ann. tit. 17"A, 207(1)(A) ([a] person is guilty of assault if: A. The person intentionally, knowingly or recklessly causes bodily injury or offensive physical contact to another person.), is divisible, with the bodily injury prong constituting a domestic violence conviction under INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i), and the offensive contact prong not involving sufficient violence to qualify under that ground); see Matter of Sanudo, 23 I. & N. Dec. 968 (BIA Aug. 1, 2006). NOTE: This case has been reversed on rehearing by Peralta Sauceda v. Lynch, __ F.3d __ (1st Cir. Apr. 22, 2015) (whether a noncitizen is barred from relief is due to a conviction under a divisible statute is a question of law, and therefore not subject to a determination of who bears the burden of proof).

Fourth Circuit

DOMESTIC VIOLENCE - NORMAL PREGNANCY FALLS WITHIN MEANING OF GREAT BODILY INJURY
People v. Cross, 45 Cal.4th 58, 190 P.3d 706 (Aug. 28, 2008) (great bodily injury enhancement of sentence for committing a lewd act on a child under the age of 14, affirmed where pregnancy without medical complications is sufficient to find great bodily injury).

Eighth Circuit

DOMESTIC VIOLENCE " ASSAULT " CRIME OF VIOLENCE
Ramirez-Barajas v. Sessions, 877 F.3d 808 (8th Cir. Dec. 15, 2017), cert. denied sub nom. Ramirez-Barajas v. Whitaker, 139 S. Ct. 584, 202 L. Ed. 2d 402 (2018) (Minnesota conviction for domestic assault, in violation of Minn. Stat. 609.2242(1)(1), is a crime of domestic violence for immigration purposes, even though the statute would include harm by poisoning).

DOMESTIC VIOLENCE " ASSAULT " CRIME OF VIOLENCE
Ramirez-Barajas v. Sessions, 877 F.3d 808 (8th Cir. Dec. 15, 2017), cert. denied sub nom. Ramirez-Barajas v. Whitaker, 139 S. Ct. 584, 202 L. Ed. 2d 402 (2018) (Minnesota conviction for domestic assault, in violation of Minn. Stat. 609.2242(1)(1), is a crime of domestic violence for immigration purposes, even though the statute would include harm by poisoning).

Ninth Circuit

DOMESTIC VIOLENCE " CORPORAL INJURY OF A SPOUSE
Marquez Carillo v. Holder, __ F.3d __ (9th Cir. Mar. 31, 2015) (California conviction for violation of Penal Code 273.5(a), corporal injury of a spouse, is a domestic violence offense under INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i) for removal purposes).

DOMESTIC VIOLENCE " CRIME OF VIOLENCE " ASSAULT WITH A DEADLY WEAPON
Camacho-Cruz v. Holder, 621 F.3d 941 (9th Cir. Sept. 2, 2010) (Nevada conviction of assault with a deadly weapon, under N.R.S. 200.471, which may be violated by putting another in reasonable apprehension of immediate bodily harm, is categorically an aggravated felony crime of violence for immigration purposes).

DOMESTIC VIOLENCE " CORPORAL INJURY OF A SPOUSE
Banuelos-Ayon v. Holder, 611 F.3d 1080, 1084 (9th Cir. Jul. 14, 2010) (California conviction for violation of Penal Code 273.5(a) was categorically a crime of domestic violence, since it requires that the defendant willfully inflict ... corporal injury resulting in a traumatic condition and thus requires the use of force).

Lower Courts of Ninth Circuit

CAL SAFE HAVENS - ASSAULT - ELEMENTS
People v. Chance, 44 Cal.4th 1164, 189 P.3d 971 (Aug. 18, 2008) (California assault is defined as, "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another;" the term "present ability" includes situations where the "defendant is several steps away from actually inflicting injury, or if the victim is in a protected position so that injury would not be immediate, in the strictest sense of that term;" the term "injury" includes "any attempt to apply physical force to the victim, and includes even injury to the victim's feelings.").

Other

RESOURCES " DOMESTIC VIOLENCE & CRIME OF VIOLENCE
NIP-NLG and Immigrant Defense Project have written an advisory on the Supreme Courts recent decision in U.S v. Castleman. The advisory explains why this decision should have no negative impact on immigration law and how it may even support arguments to narrow the domestic violence and aggravated felony removal grounds. The advisory is located at: http://www.nationalimmigrationproject.org/publications.htm

DOMESTIC VIOLENCE
Attorney General Opinion, Opinions from Office of Legal Counsel, Vol. 31, May 17, 2007 ("A "misdemeanor crime of domestic violence" under 18 U.S.C. 922(g)(9) is limited to those offenses of which the use or attempted use of physical force or the threatened use of a deadly weapon is an element that is, a factual predicate specified by law and required to support a conviction. Where the legal definition of the crime at issue contains a disjunctive element (which requires proof of only one of multiple specified factual predicates), only one subpart of which requires the use or attempted use of physical force or the threatened use of a deadly weapon, application of the prohibition in section 922(g)(9) will turn on whether the fact finder found that the subpart meeting the "misdemeanor crime of domestic violence" definition had been proved (or whether the defendant pleaded guilty to that subpart). The answer to that question may be gleaned from the record of conviction or the supporting record of proceedings in the court of conviction. Police reports cannot answer that question. The above interpretations also govern background checks by the Federal Bureau of Investigation for firearms transfers under the National Instant Background Check System, but additional materials, including police reports, may be relied upon by the NICS for certain limited purposes.")