Cite as 25 I&N Dec. 278 (BIA 2010) Interim Decision #3687
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Matter of Julio E. VELASQUEZ, Respondent
File A094 038 330 – Arlington, Virginia
Decided July 16, 2010
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
The misdemeanor offense of assault and battery against a family or household member
in violation of section 18.2-57.2(A) of the Virginia Code Annotated is not categorically
a crime of violence under 18 U.S.C. § 16(a) (2006) and therefore not categorically a crime
of domestic violence within the meaning of section 237(a)(2)(E)(i) of the Immigration and
Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2006).
FOR RESPONDENT: John T. Riely, Esquire, Bethesda, Maryland
FOR THE DEPARTMENT OF HOMELAND SECURITY: Rhonda M. Dent, Appellate
Counsel; Karen Donoso Stevens, Assistant Chief Counsel
BEFORE: Board Panel: GRANT and MILLER, Board Members. Concurring Opinion:
MALPHRUS, Board Member, joined by MILLER, Board Member.
GRANT, Board Member:
In a decision dated May 21, 2008, an Immigration Judge found the
respondent removable on his own admissions under section 212(a)(6)(A)(i)
of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(i) (2006),
as an alien who is present in the United States without being admitted
or paroled. The Immigration Judge also pretermitted the respondent’s
application for cancellation of removal pursuant to section 240A(b)(1)(C)
of the Act, 8 U.S.C. § 1229b(b)(1)(C) (2006), finding that he was ineligible for
that relief because he had been convicted of a crime of domestic violence. The
respondent has appealed from the Immigration Judge’s finding regarding his
eligibility for cancellation of removal. The appeal will be sustained and the
record will be remanded to the Immigration Judge for further proceedings.
This case requires us to determine whether the offense of misdemeanor
assault and battery of a family member in violation of section 18.2-57.2(A)
of the Virginia Code Annotated categorically qualifies as a crime of
domestic violence within the meaning of section 237(a)(2)(E) of the Act,
8 U.S.C. § 1227(a)(2)(E) (2006). In light of the decision of the United States
Supreme Court in Johnson v. United States, 130 S. Ct. 1265 (2010), we holdCite as 25 I&N Dec. 278 (BIA 2010) Interim Decision #3687
279
that because the Virginia statute reaches conduct that cannot be classified
as “violent force,” the respondent’s 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. Accordingly, the
record will be remanded to determine whether the respondent’s offense
qualifies as a crime of domestic violence under the modified categorical
approach.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of El Salvador who entered the
United States at an unknown place and time. On August 18, 2004, he was
convicted of assault and battery of a family member in violation of section
18.2-57.2(A) of the Virginia Code Annotated. He was sentenced to a term
of imprisonment of 10 days and was subjected to certain conditions, including
a no-contact order with the victim.
On August 30, 2005, the Department of Homeland Security (“DHS”)
initiated removal proceedings against the respondent. At his hearing, the
respondent filed an application for cancellation of removal under section
240A(b)(1) of the Act. The DHS filed a motion to pretermit the respondent’s
application, arguing that his conviction was for a categorical crime of domestic
violence, which rendered him ineligible for relief under section 240A(b)(1)(C)
of the Act. The Immigration Judge granted the motion and ordered the
respondent removed to El Salvador.
The respondent appealed from the Immigration Judge’s finding regarding
his eligibility for cancellation of removal, arguing that he was not
convicted of a crime of domestic violence. Subsequent to the decision of the
Supreme Court in Johnson v. United States, 130 S. Ct. 1265, we invited the
parties to submit supplemental briefs, and both parties did so. We review
de novo the Immigration Judge’s determination on this question of law.
8 C.F.R. § 1003.1(d)(3)(ii) (2010); see also Matter of Almanza, 24 I&N Dec.
771 (BIA 2009).
II. ANALYSIS
An alien who has been convicted of a crime of domestic violence under
section 237(a)(2)(E)(i) of the Act is ineligible for cancellation of removal
under section 240A(b)(1)(C). A “crime of domestic violence” means any
“crime of violence,” as that term is defined in 18 U.S.C. § 16 (2006), that
is committed by a specified person against one of a defined set of victims.
See section 237(a)(2)(E)(i) of the Act. A crime of violence is defined
at 18 U.S.C. § 16 as follows:Cite as 25 I&N Dec. 278 (BIA 2010) Interim Decision #3687
1 Contrary to the respondent’s argument on appeal, the statute under which he was convicted
is sufficiently clear with respect to the “domestic” status of the protected victim. See Va.
Code Ann. § 16.1-228 (2004) (defining “family or household member”). In regard
to whether the victim is a “protected” person within the meaning of section 237(a)(2)(E)(i)
of the Act, we note that it lists a broad class of victims, including current or former spouses,
parties with a child in common, individuals currently or formerly cohabiting as a spouse,
individuals similarly situated to a spouse under the domestic or family violence laws of the
jurisdiction where the offense occurs, or any other individual who is protected from the
perpetrator’s acts under the domestic or family violence laws of the jurisdiction. Virginia’s
definition of a “family or household member” includes both those who fit within the most
restrictive definition of family members (such as spouses) and others, such as cohabitants
and individuals who recently cohabited, who fit within the broad list of protected individuals
(continued…)
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(a) an offense that has as an element the use, attempted use, or threatened use
of physical force against the person or property of another, or
(b) 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.
The respondent pled guilty to assault and battery under section 18.2-57.2(A)
of the Virginia Code Annotated, which states that any “person who commits
an assault and battery against a family or household member is guilty
of a Class 1 misdemeanor.” According to section 18.2-11 of the Virginia Code
Annotated, a Class 1 misdemeanor under Virginia law is punishable by not
more than 1 year in prison. Consequently, for purposes of Federal law, the
respondent’s offense would be classified as a misdemeanor, not as a felony.
See 18 U.S.C. §§ 3559(a)(5), (6) (2006). Thus, because the respondent’s
offense is not a felony under Federal law, it cannot constitute a crime
of violence under 18 U.S.C. § 16(b). See Matter of Martin, 23 I&N Dec. 491,
493 (BIA 2002). Accordingly, our inquiry is limited to whether the
respondent’s offense has as an element the use, attempted use, or threatened
use of physical force against the person or property of another under § 16(a).
Because the Virginia Code Annotated does not define assault and battery,
Virginia courts have relied on common law definitions of those crimes.
See, e.g., Carter v. Commonwealth, 606 S.E.2d 839, 841 (Va. 2005);
Zimmerman v. Commonwealth, 585 S.E.2d 538, 539 (Va. 2003); Clark
v. Commonwealth, 676 S.E.2d 332, 336 (Va. Ct. App. 2009). However,
Virginia law is clear that “only the offense of an assault and a battery
is encompassed within the statute.” Va. Op. Att’y Gen. 99 (1997), 1997 WL
767056 (emphasis added). Thus, we must look to the definitions of both
assault and battery under Virginia law to determine if, on a categorical basis,
they require the use, attempted use, or threatened use of violent force.1
Cite as 25 I&N Dec. 278 (BIA 2010) Interim Decision #3687
(…continued)
in section 237(a)(2)(E)(i). Moreover, we note that the domestic or family relationship need
not be an element of the predicate offense to qualify as a misdemeanor crime of domestic
violence under this section. See United States v. Hayes, 129 S. Ct. 1079 (2009).
281
An assault occurs “when an assailant engages in an overt act intended
to inflict bodily harm and has the present ability to inflict such harm
or engages in an overt act intended to place the victim in fear or apprehension
of bodily harm and creates such reasonable fear or apprehension in the victim.”
Carter v. Commonwealth, 606 S.E.2d at 841 (noting the merger of the criminal
offense of assault and the tort of assault, which have the same definition under
Virginia law); see also Zimmerman v. Commonwealth, 585 S.E.2d at 539
(stating that assault also includes the “unequivocal appearance” of an attempt
to do physical injury to another); Clark v. Commonwealth, 676 S.E.2d at 336.
There is no requirement that a victim of assault be physically touched.
See, e.g., Zimmerman v. Commonwealth, 585 S.E.2d at 539.
A battery under Virginia law is “‘the actual infliction of corporal hurt
on another . . . willfully or in anger, whether by the party’s own hand,
or by some means set in motion by him.’” E.g., Commonwealth v. Vaughn,
557 S.E.2d 220, 222 (Va. 2002) (quoting Jones v. Commonwealth, 36 S.E.2d
571, 572 (Va. 1946)). Unlike assault, battery requires the unlawful touching
of another, although it is not necessary for the touching to result in injury
to the person. See Adams v. Commonwealth, 534 S.E.2d 347, 350-51 (Va. Ct.
App. 2000) (defining touch as to be in contact or to cause to be in contact);
Perkins v. Commonwealth, 523 S.E.2d 512, 513 (Va. Ct. App. 2000).
Additionally, the “‘slightest touching of another . . . if done in a rude, insolent,
or angry manner, constitutes a battery.’” Adams v. Commonwealth, 534 S.E.2d
at 350 (quoting Crosswhite v. Barnes, 124 S.E. 242, 244 (Va. 1924)); see also
Matter of Sejas, 24 I&N Dec. 236, 238 (BIA 2007). However, whether
a touching is a battery depends on the intent of the actor, not the force applied.
See Adams v. Commonwealth, 534 S.E.2d at 350.
In Johnson v. United States, 130 S. Ct. at 1271, the Supreme Court held that
in order to constitute a “violent felony” under the relevant provisions of the
Armed Career Criminal Act (“ACCA”), the level of “physical force” required
for a conviction must be “violent force—that is, force capable of causing
physical pain or injury to another person.” See 18 U.S.C. §§ 924(e)(1),
(2)(B)(i) (2006). The Court concluded that simple battery under Florida law
was not a violent felony because a conviction under the relevant statute may
occur when an individual has committed an actual and intentional touching
involving physical contact, no matter how slight. Johnson v. United States,
130 S. Ct. at 1269-70.Cite as 25 I&N Dec. 278 (BIA 2010) Interim Decision #3687
2 The ACCA does not, as does 18 U.S.C. § 16(a), reach crimes against the property
of another. Because it is not necessary to address whether “violent” force would be required
for property crimes as well as for crimes against the person, we do not resolve that issue
in this case.
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Since the ACCA’s definition of a “violent felony” is, in pertinent part,
identical to that in 18 U.S.C. § 16(a), Johnson controls our interpretation
of a “crime of violence” under § 16(a).2
The Court in Johnson, 130 S. Ct. at
1271, relied on its prior decision in Leocal v. Ashcroft, 543 U.S. 1, 11 (2004),
holding that the definitions in 18 U.S.C. § 16 suggest a category of “violent,
active crimes.” The Court also specifically endorsed the holding of the
United States Court of Appeals for the Seventh Circuit in Flores v. Ashcroft,
350 F.3d 666, 672 (7th Cir. 2003), that in order to constitute an aggravated
felony crime of violence, the elements of the offense must require the
intentional use of “violent force.” Johnson v. United States, 130 S. Ct. at
1271.
Finally, the Court specifically acknowledged that many generic domestic
battery statutes do not require as an element the intentional use of violent
force. The Government argued that because of this, a ruling that “violent
force” is required under the ACCA would make it more difficult to obtain
removal orders under section 237(a)(2)(E)(i) of the Act, which is the very issue
in this case. The Court acknowledged the difficulty but stated that in such
cases, recourse must be had to the modified categorical approach. In response
to the Government’s argument that the type of conviction records allowed
under the modified categorical approach are often incomplete (and thus silent
on the precise nature of the “force” used to sustain a conviction), the Court
stated that the “absence of records will often frustrate application of the
modified categorical approach—not just to battery but to many other crimes
as well.” Johnson v. United States, 130 S. Ct. at 1273. Moreover, the Fourth
Circuit recently applied Johnson to reverse a conviction under 18 U.S.C.
§ 922(g)(9) for possession of a firearm after having “been convicted in any
court of a misdemeanor crime of domestic violence,” holding that section
18.2-57.2(A) of the Virginia Code Annotated includes nonviolent force, such
as an offensive touching, and that “violent force,” as required in Johnson,
is not an element of assault and battery under Virginia common law.
United States v. White, 606 F.3d 144 (4th Cir. 2010).
The DHS argues in its supplemental brief that Johnson does not control the
outcome of this case because the Court’s decision was limited to the question
of what constitutes a “violent felony,” and because the Court specifically
endorsed the use of the modified categorical approach to determine whether,
in the immigration context, an offense is a crime of domestic violence.
However, the DHS argument overlooks both the Court’s specific endorsementCite as 25 I&N Dec. 278 (BIA 2010) Interim Decision #3687
3 The dissent in Johnson clearly foretold the result here. It explained that the analysis
regarding “violent force” in Johnson would be applicable in the context of domestic violence
and noted that the outcome of this approach would be that “many convicted spousal and
child abusers will escape removal, a result that Congress is unlikely to have intended.”
Johnson v. United States,130 U.S. at 1278 (Alito, J., dissenting).
4 Analysis under the modified categorical approach must include an assessment of whether
the respondent was convicted of intentional, as opposed to reckless, use of violent force.
Garcia v. Gonzales, 455 F.3d 465 (4th Cir. 2006).
283
of the Seventh Circuit’s decision in Flores and its clear statement that resort
could be made to the modified categorical approach. Had the Supreme Court
determined that its ruling in Johnson did not apply outside the context of the
ACCA, it could have responded to the Government’s specific arguments
regarding immigration cases, and to those of the dissent,3
by so limiting its
ruling. Instead, it fully engaged those arguments and left no room for the
Government to contend that 18 U.S.C. § 16(a) can be satisfied with proof
of anything less than “violent” force. Only Congress can address whether the
categorical approach should be required to establish deportability in these
circumstances.
Accordingly, in regard to crimes against the person, we conclude that the
“physical force” necessary to establish that an offense is a “crime of violence”
for purposes of the Act must be “violent” force, that is, force capable
of causing physical pain or injury to another person. The key inquiry is not the
alien’s intent for purposes of assault, but rather whether battery, in all cases,
requires the intentional use of “violent force.” An offense cannot therefore
be classified as a “categorical” crime of violence unless it includes
as an element the actual, attempted, or threatened use of violent force that
is capable of causing pain or injury. The crime of assault and battery
in Virginia does not contain such a requirement.
For the reasons discussed above, an assault and battery conviction under
section 18.2-57.2(A) of the Virginia Code Annotated does not, in all cases,
require the use, attempted use, or threatened use of violent physical force
under 18 U.S.C. § 16(a). Consequently, the respondent’s offense is not
categorically a crime of violence and therefore not categorically a crime
of domestic violence under section 237(a)(2)(E) of the Act. Thus, the
modified categorical approach must now be applied. See Johnson
v. United States, 130 S. Ct. at 1273; United States v. White, 606 F.3d at 155;
see also, e.g., Matter of Milian, 25 I&N Dec. 197, 199-200 (BIA 2010)
(discussing documents that may be considered in applying the modified
categorical approach). The record will therefore be remanded for
consideration of evidence regarding whether the offense constitutes a crime
of domestic violence under the modified categorical approach.4
Accordingly,Cite as 25 I&N Dec. 278 (BIA 2010) Interim Decision #3687
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the respondent’s appeal will be sustained, and the record will be remanded for
further proceedings.
ORDER: The appeal is sustained.
FURTHER ORDER: The record is remanded to the Immigration Judge
for further proceedings consistent with the foregoing opinion and for the entry
of a new decision.
CONCURRING OPINION: Garry D. Malphrus, Board Member, in which
Neil P. Miller, Board Member, joined
I fully concur with the reasoning and the result in this case, which
is controlled by Johnson v. United States, 130 S. Ct. 1265 (2010). However,
because of this approach to section 237(a)(2)(E)(i) of the Immigration and
Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2006), “many convicted spousal
and child abusers will escape removal.” Johnson v. United States, 130 S. Ct.
at 1278 (Alito, J., dissenting). This is true because in State courts, “many
people who engage in serious spousal or child abuse ultimately are not
charged with or convicted of felonies.” United States v. Hayes, 129 S. Ct.
1079, 1087 (2009). Instead, these domestic abusers are routinely prosecuted
under generally applicable misdemeanor assault or battery laws. See id. The
legislative history behind the relevant provisions indicates that Congress
intended for these perpetrators to face immigration consequences.
See generally Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1138, 1142
(9th Cir. 2006) (Wardlaw, J., dissenting) (discussing congressional intent
to protect victims and punish perpetrators of misdemeanor crimes of domestic
violence in enacting section 237(a)(2)(E)(i) of the Act); Matter of Martin,
23 I&N Dec. 491, 494 (BIA 2002) (discussing legislative history showing that
Congress intended to include a “threatened or attempted simple assault
or battery” in the definition of a crime of violence under 18 U.S.C. § 16(a)).
Moreover, even when the modified categorical approach is applied, which
Johnson permits, the limited conviction records that may be consulted
to “conclusively show that the offender’s conduct involved the use of violent
force” often are not available in these cases. Johnson v. United States,
130 S. Ct. at 1278 (Alito, J., dissenting). Both the majority and dissent
in Johnson recognized the limitations of applying the modified categorical
approach to this crime. Id. at 1273, 1278. Going forward, only Congress can
determine whether the categorical approach and its inherent restrictions
on considering the actual conduct of the offender should apply to convictions
involving domestic violence in immigration proceedings.