(C)  Offenses Falling Under 18 U.S.C. § 16(b).  The second prong of the crime of violence definition includes “any other offense that is a felony and that, 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.”[101]  This requires (a) that the conviction be a felony, and (b) that the elements of the statute define an offense whose nature involves a “substantial risk” that the defendant will intentionally use physical force against the person or property of another in the commission of the offense.  See § § 19.41, et seq., supra.  Courts have sometimes held that sex with a minor is a “crime of violence” even though use of force is not an element of the offense.[102]  See § § 19.91-19.92, supra. 

[101] 18 U.S.C. § 16 (emphasis supplied).

[102] Sex with a minor has been held to be a crime of violence under 18 U.S.C. § 16(b) as a felony that inherently involves a substantial risk that force will be used.  Matter of B., 21 I. & N. Dec. 287 (BIA 1996) (where Maryland statute prohibits intercourse with child under 14 years, the offense invariably presents “a substantial risk that physical force will be wielded”) (citing United States v. Reyes-Castro, 13 F.3d 377 (10th Cir. 1993)); United States v. Wood, 52 F.3d 272, 275 (9th Cir.), cert. denied, 116 S.Ct. 217 (1995); Zaidi v. Ashcroft, 374 F.3d 357 (5th Cir. June 21, 2004) (Oklahoma conviction for sexual battery [“the intentional touching, mauling or feeling of the body or private parts of any person sixteen (16) years of age or older, in a lewd and lascivious manner and without the consent of that other person . . . .”], in violation of Okla. Stat. Ann. tit. 21, § 1123(B) (2002), constituted a “crime of violence,” as defined in 18 U.S.C. § 16(b), and thus an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), rendering the noncitizen subject to removal, under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), because the unconsented touching created a substantial risk that force would be used to complete the offense, and consequently the court of appeal lacked jurisdiction to review the final order of removal); Valencia v. Gonzales, 406 F.3d 1154 (9th Cir. May 12, 2005) (California conviction of unlawful sexual intercourse with a person under 18 (here 17), in violation of Penal Code § 261.5(c), with a five-year suspended sentence, constituted a crime of violence aggravated felony under 18 U.S.C. § 16(b), within the meaning of INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), and therefore triggered removal under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), following United States v. Granbois, 376 F.3d 993 (9th Cir. 2004), even though in Granbois, the victim was 15, and in Granbois, the court considered whether the offense “presented a serious potential risk of physical injury to another” under USSG § 4B1.2(a), whereas here the question is whether the offense presents “a substantial risk that physical force against the person or property of another may be used in the course of committing the offense,” under 18 U.S.C. § 16(b)).

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.")