Immigration Law Update-Assault Case
A non-citizen who is convicted of a domestic violence crime may be subject to removal from the U.S. U.S. immigration law broadly defines "domestic violence" to include crimes involving violence against a member of the family or household, stalking, child abuse, child neglect or abandonment and violations of protective orders. However, in Matter of Velasquez, the Board of Immigration Appeals ("BIA") recently held that, under Virginia law, the misdemeanor offense of assault and battery against a family or household member is not categorically a crime of domestic violence under the Immigration and Nationality Act ("INA"). See 25 I&N Dec. 278 (BIA 2010).
In Velasquez, a native and citizen of El Salvador was convicted of assault and battery of a family member under Virginia law and was subsequently placed in removal proceedings. He filed an application for cancellation of removal but the Department of Homeland Security ("DHS") argued that his conviction was for a categorical crime of domestic violence, which rendered him ineligible for relief under the INA. The immigration judge agreed with the DHS and ordered him removed to El Salvador. On appeal, he argued that he was not convicted of a crime of domestic violence under the INA.
The BIA initially noted that, under the INA, a "crime of domestic violence" means any "crime of violence," as that term is defined in 18 U.S.C. § 16, that is committed against one of a defined set of victims. The BIA further noted that "crime of violence" under 18 U.S.C. § 16 means:
(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.
In this regard, the BIA first determined that, under Virginia law, misdemeanor assault and battery is punishable by not more than one year in prison and, consequently, cannot be considered a felony under federal law. Accordingly, the BIA reasoned that "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)." Id. at 280. After considering the definitions of "assault" and "battery" under Virginia law, as required by the categorical approach, the BIA found that they do not require the use, attempted use, or threatened use of physical force. Id. at 281.
Moreover, the BIA noted that the U.S. Supreme Court recently held that a violent felony under the Armed Career Criminal Act ("ACCA") requires "violent force-that is, force capable of causing physical pain or injury to another person." Id. (referencing Johnson v. U.S., 130 S.Ct. 1265 (2010). Finding that the ACCA's definition of "violent felony" is nearly identical to that in 18 U.S.C. § 16(a), the BIA held that the "physical force necessary to establish that an offense is a 'crime of violence' for purposes of the [INA] 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 the assault, but rather whether battery, in all cases, requires the intentional use of 'violent force.'" Id. at 283. The BIA further clarified that "[a]n 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." Id. In Virginia, the crime of assault and battery does not contain such a requirement. Accordingly, the BIA held that the subject conviction was not categorically a crime of violence and therefore not categorically a crime of domestic violence under the INA.
Therefore, when defending a non-citizen client against an assault and battery charge, defense counsel should carefully consider the elements of the Texas criminal statute and evaluate whether it includes as an element the actual, attempted, or threatened use of violent force that is capable of causing pain or injury. Moreover, defense counsel should consider introducing evidence into the record indicating that the defendant did not have the intent to use violent force or force capable of causing physical pain or injury. Of course, defense counsel should also refer a non-citizen client to competent immigration counsel to fully consider the immigration consequences of any plea or conviction. Tidwell, Swaim & Associates, P.C. has the knowledge and experience to assist you in advising a non-citizen client. Accordingly, please feel free to contact us with any questions